Turner v Ulicorp Pty Ltd [2007] NSWSC 206

New South Wales Supreme Court

CITATION : Turner v Ulicorp Pty Ltd [2007] NSWSC 206

HEARING DATE(S) : 09/03/07

JUDGMENT DATE : 9 March 2007

JURISDICTION : Equity Division Corporations List

JUDGMENT OF : Barrett J

EX TEMPORE JUDGMENT DATE : 9 March 2007

DECISION : Winding up application adjourned

CATCHWORDS : CORPORATIONS - winding up - contributory's application - just and equitable ground - whether director misconduct or lack of confidence shown - whether discretion to order winding up should be exercised - where defendant and opposing directors and shareholders willing to join in voluntary winding up in due course

LEGISLATION CITED : Corporations Act 2001 (Cth), ss.461(1)(k), 467(4)

CASES CITED : Netbush Pty Ltd v Fascine Developments Pty Ltd (2005) 189 FLR 320

PARTIES : Peter Turner - Plaintiff Ulicorp Pty Ltd - Defendant

FILE NUMBER(S) : SC 6187/06

COUNSEL : Mr C.R.C. Newlinds SC/Ms S. Mirzabegian - Plaintiff Mr D.P. Robinson SC - Defendant

SOLICITORS : Gordon & Johnstone - Plaintiff Beswick Solicitors - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION CORPORATIONS LIST

BARRETT J

FRIDAY 9 MARCH 2007

6187/06 PETER TURNER v ULICORP PTY LTD

JUDGMENT

1 This is an application for a winding up order advanced on the just and equitable ground under s.461(1)(k) of the Corporations Act 2001 (Cth). It is a contributory's application. The plaintiff, Mr Turner, is one of three allied members who, between them, hold 40 per cent of the shares in the capital of the defendant. The remaining 60 per cent of the shares is held by members of the Wise family. Mr Turner and one of his associates are directors. Three members of the Wise family are the remaining directors. 2 The individuals on each side, initially as partners and later through corporate vehicles, conducted a successful hotel business. The defendant was the owner of a substantial hotel which was sold some time ago. 3 Differences between the two groups of individuals led to proceedings in the Federal Court, which were eventually settled. The settlement was effected by a deed dated 19 May 2005. The deed dealt with a range of matters. In relation to the defendant company and what was to happen to it, the relevant provisions of the deed are those in clause 3: "(a) The Turner Parties and the Wise Parties agree that any outstanding business of Ulicorp is to be finalised as soon as is practicable. Any surplus of funds after all-liabilities are paid is to be distributed to shareholders and Ulicorp is to be voluntarily wound up. (b) The parties agree that Peter Crawford of VJ Ryan & Co, accountants of Sydney in the State of New South Wales be appointed to give effect to clause 3(a)."