Beck v LW Furniture Consolidated (Aust) Pty Ltd [2012] NSWCA 76

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Beck v LW Furniture Consolidated (Aust) Pty Ltd [2012] NSWCA 76 Hearing dates: 2 February 2012 Decision date: 05 April 2012 Before: Campbell JA at [1] Young JA at [215] Sackville AJA at [228] Decision: (1) Appeal allowed. (2) Orders 2 and 3 in the court below be set aside. (3) Remit the matter to the primary judge, or such other judge as the Chief Judge in Equity might decide, to determine whether the Company should be wound up. (4) Cross-Appeal dismissed. (5) Respondents to pay the costs of the Appellant of the appeal and cross-appeal. (6) Costs of the first trial to follow the event of the second trial. (7) Respondents to have a certificate under the Suitors Fund Act 1951 concerning those costs of the Appellant of the appeal that they have been ordered to pay, which are assessed as being 80 percent of the combined costs of the Appellant of the appeal and the cross-appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: COMPANIES - management and administration - directors and other officers - appointment removal and retirement of directors - family company incorporated in 1971 - directors consisting of founder, his wife and their two children - no voting shares ever issued - in 2003 the founder passed away, and his wife had become incapable - both children ceased to be directors - result was no validly appointed directors - the son, who was a de facto director, purported to exercise reserve power under articles to return directors to quorum by electing his wife as an additional director - application by appellant for winding up