In the matter of Three Chimneys Pty Ltd (in liquidation) [2015] NSWSC 1754

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Three Chimneys Pty Ltd (in liquidation) [2015] NSWSC 1754 Hearing dates: 9 and 10 November 2015 Decision date: 24 November 2015 Jurisdiction: Equity - Corporations List Before: Black J Decision: Applicant to be allowed a short period to determine whether to offer wider indemnity in support of application to bring derivative proceedings. Parties then to be heard as to orders and costs. Catchwords: CORPORATIONS – winding up – application in the Court's inherent jurisdiction by shareholder for leave to bring derivative proceedings – where liquidator did not oppose leave provided a capped indemnity and security for that indemnity was provided – where shareholder and its directors offered indemnity in a higher capped amount than that proposed by the liquidator – where indemnity expressed to be limited to costs of claims prosecuted by the company pursuant to the leave – whether to grant leave on those terms

PRACTICE AND PROCEDURE – application to amend Originating Process – where amendments were as to relief sought in Originating Process to conform it to Points of Claim – whether to allow the amendments under r 19.1 of the Uniform Civil Procedure Rules 2005 (NSW). Legislation Cited: - Civil Procedure Act 2005 (NSW) ss 56, 57, 58, 64, 64(2) - Conveyancing Act 1919 (NSW) s 37A - Corporations Act 2001 (Cth) ss 180, 181, 182 - Uniform Civil Procedure Rules 2005 (NSW) r 19.1 Cases Cited: - Baden v Societe Generale pour Favoriser le Developpement du Commerce et de l'Industrie en France SA (1993) 1 WLR 509 - Brightwell v RFB Holdings [2003] NSWSC 7; (2003) 44 ACSR 186 - Cadima Express Pty Ltd (in liq) v Deputy Commissioner of Taxation [1999] NSWSC 1143; (1999) 33 ACSR 527 - Carpenter v Pioneer Park Pty Ltd [2008] NSWSC 551; (2008) 71 NSWLR 577 - Consul Development Pty Ltd v DPC Estates Pty Ltd (1975) 132 CLR 373 - Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 - Fiduciary Ltd v Morningstar Research Pty Ltd [2005] NSWSC 442; (2005) 53 ACSR 732 - Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6; (2012) 200 FCR 296 - Hu v PS Securities Pty Ltd (as trustee of the Joseph Family Trust) [2011] NSWSC 303 - Karam v Australia & New Zealand Banking Group Ltd [2000] NSWSC 596; (2000) 34 ACSR 545 - Keyrate Pty Ltd v Hamarc Pty Ltd [2001] NSWSC 491; (2001) 38 ACSR 396 - Re Colorado Products Pty Ltd (in prov liq) [2014] NSWSC 64 - Re Sundara Pty Ltd [2015] NSWSC 1694 Category: Procedural and other rulings Parties: S&B Davies Pty Ltd (Applicant) Three Chimneys Pty Ltd (First Respondent) Domseb Unity Group Pty Ltd (Third Respondent) DRB 56 Pty Ltd (Third Respondent) Caterine Anne Bridget Oleszcuzk (Fourth Respondent) Shane Jaque (Fifth Respondent) Massimo Di Fazio (Sixth Respondent) Francesca Di Fazio (Seventh Respondent) Representation: Counsel: R Glasson (Plaintiff) G King (Solicitor – First Defendant) D Wright (Solicitor – Second to Fifth Defendants) M J Dawson (Sixth and Seventh Defendants)