In the matter of Clarkes Pty Limited (ACN 078 949 112) [2015] NSWSC 2101

In the matter of Clarkes Pty Limited (ACN 078 949 112) [2015] NSWSC 2101

The companies were in effect an incorporated quasi-partnership equally held by the Clarke brothers, whose relationship had broken down irretrievably with no prospect of cooperation, so it was plainly just and equitable to wind them up. The plaintiff was entitled under s 466(2) to reimbursement of taxed costs from company property, and the evidence did not justify making the third defendant personally liable for those costs; given the quasi-partnership context and absence of established attributable fault, both the plaintiff's and the third defendant's taxed costs should be reimbursed equally from the companies' property.

Jurisdiction
Australia
Judgment Date
13 August 2015
Procedural Posture
Originating Process Seeking Winding Up of Companies on the Just and Equitable Ground and Appointment of a Liquidator / Ex Tempore Principal Judgment on Winding Up Application
Outcome
Winding up orders made; plaintiff and third defendant to be reimbursed taxed costs from the property of the companies equally.
Legal Topics
['winding Up on Just and Equitable Ground' 'incorporated Quasi Partnership' 'breakdown of Mutual Trust and Confidence' 'liquidator Appointment' 'costs in Winding Up Proceedings']
['corporations' 'procedure' 'costs'] ['winding Up on Just and Equitable Ground' 'incorporated Quasi Partnership' 'breakdown of Mutual Trust and Confidence' 'liquidator Appointment' 'costs in Winding Up Proceedings']

Case Brief

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Procedural Posture

Originating Process Seeking Winding Up of Companies on the Just and Equitable Ground and Appointment of a Liquidator / Ex Tempore Principal Judgment on Winding Up Application

Legal Issues

  1. 1 ['Whether Cafsoul Pty Limited and Clarkes Pty Limited should be wound up on the just and equitable ground because of the irretrievable breakdown of the relationship between the Clarke brothers in an incorporated quasi-partnership.' "Whether the plaintiff's costs of the proceedings should be paid by the third defendant personally rather than reimbursed by the liquidator out of company property." 'Whether the third defendant should be reimbursed his costs out of the property of the companies.']

Ratio Decidendi

The companies were in effect an incorporated quasi-partnership equally held by the Clarke brothers, whose relationship had broken down irretrievably with no prospect of cooperation, so it was plainly just and equitable to wind them up. The plaintiff was entitled under s 466(2) to reimbursement of taxed costs from company property, and the evidence did not justify making the third defendant personally liable for those costs; given the quasi-partnership context and absence of established attributable fault, both the plaintiff's and the third defendant's taxed costs should be reimbursed equally from the companies' property.

Court Disposition

Winding up orders made; plaintiff and third defendant to be reimbursed taxed costs from the property of the companies equally.

Orders

  • ['The first defendant Cafsoul Pty Limited ACN 002 515 371 be wound up on the just and equitable ground and David Young of Young RIT, 9 Hunter Street, Sydney, be appointed liquidator.' 'The second defendant Clarkes Pty Limited ACN 078 949 112 be wound up on the just and equitable ground and David Young of RIT, 9...