Australian Beverage Distributors v Evans & Tate Premium Wines Pty Ltd [2006] NSWSC 560

58 ACSR 22 Reported Decision : 200 FLR 332 (2006) 24 ACLC 657

New South Wales Supreme Court

CITATION : Australian Beverage Distributors v Evans & Tate Premium Wines Pty Ltd [2006] NSWSC 560 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 01-02/06/06

JUDGMENT DATE : 6 June 2006

JURISDICTION : Equity Division

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 06/06/2006

DECISION : See paras 82, 83, 86, 87, 88

CATCHWORDS : CORPORATIONS – Winding-up – Plaintiff (2876/06) sought orders that second defendant be wound up in insolvency – Second defendant was parent company of first defendant – Plaintiff was creditor of second defendant because of contingent or prospective debt – Leave of Court required – s 459P(2)(a) Corporations Act 2001 (Cth) – Plaintiff failed to seek leave – Whether failure to seek leave constituted abuse of process – Whether plaintiff entitled to leave nunc pro tunc – Evidence that winding-up proceedings brought in attempt to recover disputed debt – Debt owed by second defendant's subsidiary (first defendant) – Enforceability of debt disputed on substantial grounds – Other proceedings on foot to resolve whether first defendant liable to pay disputed debt – Evidence that winding-up proceedings retaliatory – Whether winding-up proceedings brought for improper purpose – Plaintiff issued press release publicising winding-up proceedings before expiry of 3 days after service of originating process and in breach of undertaking – Extensive media coverage – Whether issue of press release a breach of r 5.6 Supreme Court (Corporations) Rules 1999 (NSW) – Purpose of r 5.6 – Whether breach of r 5.6 warrants summary dismissal of proceedings as abuse of process – Whether breach of r 5.6 saved by s 467A Corporations Act - CORPORATIONS – Winding-up – Plaintiff sought orders that first defendant (2876/06) be wound up in insolvency – Plaintiff claimed status as creditor of first defendant because of certificate of costs awarded to it in other proceedings – Plaintiff entitled to have certificate of costs filed as a judgment – Whether first defendant entitled to set off debt owed to it by plaintiff against debt arising from certificate of costs –Basis of jurisdiction of Court to allow set-offs – Whether plaintiff a creditor of first defendant – Other proceedings on foot to stay enforcement of costs order – Whether filing winding-up proceedings in such circumstances constitutes abuse of process - PRACTICE & PROCEDURE – Plaintiff (2760/06) sought orders to restrain defendant (2760/06) from executing judgment based on certificate of costs obtained in other proceedings – Jurisdiction of Court to stay execution of its own judgments and orders – Jurisdiction to be exercised with caution in interests of justice – Requirements of justice in instant case - COSTS – Indemnity costs – Order for indemnity costs to be made where one party delinquent in its conduct of proceedings – Whether plaintiff (2876/06) delinquent – Order for indemnity costs made.