Double Bay Newspapers v The Fitness Lounge [2006] NSWSC 226

Reported Decision : 57 ACSR 131

New South Wales Supreme Court

CITATION : Double Bay Newspapers v The Fitness Lounge [2006] NSWSC 226

HEARING DATE(S) : 24/03/06

JUDGMENT DATE : 24 March 2006

JURISDICTION : Equity Division

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 03/24/2006

DECISION : 1. Order that the orders made on 17 March 2006 that the defendant be wound up under the Corporations Act, that Mr Worrell be appointed liquidator of the defendant, and that the defendant pay the plaintiff's costs, be set aside. 2. Order that the originating process be dismissed, with no order as to costs.

CATCHWORDS : CORPORATIONS – As a result of a misunderstanding, plaintiff sought winding-up orders in breach of compromise reached with the defendant company – Winding-up orders made in absence of defendant company – Whether winding-up orders obtained through fundamental irregularity – Discretion to set aside winding-up orders – Section 482 of the Corporations Act 2001 (Cth) – Rules 36.15 and 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) – Whether applicant entitled to have winding-up orders obtained through fundamental irregularity set aside as of right – Whether applicant obliged to show solvency or arguable case of solvency to have winding-up orders obtained through fundamental irregularity set aside.

Corporations Act 2001 (Cth) LEGISLATION CITED : Uniform Civil Procedure Rules 2005 (NSW) Companies Act 1961 (NSW)

Re Elvi Pty Ltd; Re Fullin Enterprises Pty Limited (1983) 1 ACLC 910 Re GT Motor Inns Pty Limited & the Companies Act (1980) 4 ACLR 881 Re Rick Wilson Pty Limited & the Companies Act (1982) 7 ACLR 354 George Ward Steel Pty Ltd v Kizkot Pty Limited (1989) 15 ACLR 464 CASES CITED : Registrar of Aboriginal Corporations v Murnkurni Women's Aboriginal Corporation (in liq) (1995) 58 FCR 125 Labraga v Pomfret [2005] NSWSC 654 Craig v Kanssen [1943] 1 KB 256 Cameron v Cole (1944) 68 CLR 571 Taylor v Taylor (1979) 143 CLR 1