Australian Beverage Distributors Pty Ltd v Evans & Tate Premium Wines Pty Ltd & Anor [2007] NSWCA 57

Reported Decision: 61 ACSR 441(2007) 25 ACLC 230

New South Wales Court of Appeal

CITATION: Australian Beverage Distributors Pty Ltd v Evans & Tate Premium Wines Pty Ltd & Anor [2007] NSWCA 57

HEARING DATE(S): 14 November 2006

JUDGMENT DATE: 22 March 2007

JUDGMENT OF: Beazley JA at 1; Hodgson JA at 151; Santow JA at 152

DECISION: 1. Appeal allowed in part and dismissed in part; 2. Set aside Orders 2, 3 and 4 made in proceedings SC 2876 of 2006; 3. Order the appellant to pay 50 per cent of the respondents' costs of proceedings SC 2876 of 2006 at first instance; 4. Direct the respondents to provide written submissions by 27 March 2007 if they seek that the costs ordered in Order 3 above be paid on an indemnity basis; 5. Set aside the Orders made in proceedings SC 2760 of 2006; 6. Order the first respondent to pay the appellant's costs of those proceedings at first instance; 7. Order the respondents to pay 75 per cent of the appellant's costs of the appeal; 8. The parties are to bring in Short Minutes of Final Order.

CATCHWORDS: Corporations – stay of enforcement of costs order – whether stay of enforcement affects status of debt as due and payable - Corporations – winding up – application for winding up by court – application for stay of enforcement of costs - abuse of process - Corporations – winding up – application for winding up by court – discretion of court to order dismissal, stay or other restraint of proceedings – inherent jurisdiction to prevent abuse of process - principles governing abuse of process - Corporations - winding up – whether trial judge erred in findings of subjective intent in filing winding up application – legal proceedings to place party in advantageous position not of itself abuse of process - Corporations – winding up – application for winding up by court – litigation where cross claim exceeds debt – unreasonable and inappropriate proceedings may constitute abuse of process - Corporations – winding up – application for winding up – procedure – publication of winding up – interpretation of publication rule – history of provision - Corporations - winding up – application for winding up – section 467A - Corporations Act 2001 (Cth) – whether substantial injustice – dismiss proceedings as abuse of process - Corporations – winding up - abuse of process – orders – court may order stay, dismissal or injunction - Costs – orders – power to stay costs order exists under section 135 Civil Procedure Act 2005 (NSW) or inherent jurisdiction of court – whether trial judge's discretion in staying costs orders miscarried