NSW Caselaw
New South Wales Supreme Court
CITATION : Ehsman v Nutectime International Pty Ltd (No 2) [2009] NSWSC 1096
HEARING DATE(S) : 28 August - 3 September 2009
JUDGMENT DATE : 16 October 2009
JUDGMENT OF : Gzell J
DECISION : Company to be wound up. New company to transfer assets back for no consideration. Loan accounts to be reinstated as before transactions. Cross-claim dismissed with costs.
CATCHWORDS : CORPORATIONS - Supervision, Regulation and Correction - loan facility agreement and deed of charge securing loans to company by some shareholders when other shareholders refused to make further contributions to company costs - other loans by shareholders unsecured - sale of assets of company to new company in which non-contributing shareholders have no interest - secured loans discharged by proceeds of sale - company an empty shell with no capacity to discharge loans of non-contributing shareholders - whether oppressive prejudicial or unfairly discriminatory within Corporations Act 2001 (Cth), s 232(e) - whether company should be wound up under s 233(1)(a) - whether new company should be ordered to transfer assets back for no consideration under s 233(1)(j) and loan accounts restored to pre-transaction position with liquidator to raise proofs of debt for additional proven expenditure - cross-claim for breach of contract, negligent representation and misleading conduct under Fair Trading Act 1987, s 68(1)
Corporations Act 2001 (Cth) LEGISLATION CITED : Fair Trading Act 1987 Limitation Act 1969
CATEGORY : Principal judgment
Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55; (2004) 218 CLR 471 Morgan v 45 Flers Avenue Pty Ltd (1986) 10 ACLR 692 Wayde v New South Wales Rugby League Ltd (1985) 180 CLR 459 Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 257 ALR 610 Re Enterprise Gold Mines NL (1991) 3 ACSR 531 CASES CITED : Kalls Enterprises Pty Ltd (in liq) v Baloglow [2007] NSWCA 191; (2007) 63 ACSR 557 Barnes v Addy (1874) LR 9 Ch App 244 Farah Constructions v Say-Dee Pty Ltd [2007] HCA 22; (2006-2007) 230 CLR 89 Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153 Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1995-1997) 188 CLR 241 Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515
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