In the matter of Pharmacy Depot Hurstville Pty Ltd (in prov liq) [2018] NSWSC 961

In the matter of Pharmacy Depot Hurstville Pty Ltd (in prov liq) [2018] NSWSC 961

Leave was required and granted under s 471B for the plaintiff to proceed against the company in provisional liquidation; the evidence supported declaring the plaintiff and first defendant each held a 50% beneficial interest in the company; the company should be wound up on the just and equitable ground due to deadlock and insolvency.

Parties
Plaintiff: Yaakop (Jacob) Youssef; First Defendant: Hamza Amin Zoghbi; Second Defendant: Pharmacy Depot Hurstville Pty Ltd (in prov liq)
Jurisdiction
Australia
Judgment Date
25 June 2018
Procedural Posture
Corporations Declaratory/winding Up Application / Final Orders After Hearing
Outcome
Declaratory relief granted; leave under s 471B granted; company to be wound up and provisional liquidators appointed as liquidators; costs awarded to plaintiff against first defendant.
Legal Topics
Declaratory Relief, Winding Up on Just and Equitable Ground, Beneficial Ownership of Shares
Corporations Law Declaratory Relief Winding Up on Just and Equitable Ground Beneficial Ownership of Shares

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Parties

Yaakop (Jacob) Youssef

Plaintiff

Hamza Amin Zoghbi

First Defendant

Pharmacy Depot Hurstville Pty Ltd (in prov liq)

Second Defendant

Procedural Posture

Corporations Declaratory/winding Up Application / Final Orders After Hearing

Legal Issues

  1. 1 Whether leave under s 471B of the Corporations Act 2001 (Cth) is required for declaratory relief against a company in provisional liquidation
  2. 2 Whether the Court should declare equal beneficial interest in shares between plaintiff and first defendant
  3. 3 Whether the company should be wound up under s 461(1)(k) of the Corporations Act 2001 (Cth)

Ratio Decidendi

Leave was required and granted under s 471B for the plaintiff to proceed against the company in provisional liquidation; the evidence supported declaring the plaintiff and first defendant each held a 50% beneficial interest in the company; the company should be wound up on the just and equitable ground due to deadlock and insolvency.

Court Disposition

Declaratory relief granted; leave under s 471B granted; company to be wound up and provisional liquidators appointed as liquidators; costs awarded to plaintiff against first defendant.

Orders

  • Grant leave pursuant to s 471B of the Corporations Act 2001 (Cth) for the plaintiff to proceed with the declaratory relief sought in par 1 of the originating process filed 22 November 2017 under the heading "Final relief sought".
  • Declare that the plaintiff and the first defendant each hold a 50 percent beneficial interest in the 180 issued shares in the second defendant.