In the matter of Pharmacy Depot Hurstville Pty Ltd (in prov liq) [2018] NSWSC 961

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Pharmacy Depot Hurstville Pty Ltd (in prov liq) [2018] NSWSC 961 Hearing dates: 18 May 2018 Decision date: 25 June 2018 Before: Gleeson JA Decision: (1) Grant leave pursuant to s 471B of the Corporations Act 2001 (Cth) for the plaintiff to proceed with the declaratory relief sought in par 1 of the originating process filed 22 November 2017 under the heading "Final relief sought".

(2) Declare that the plaintiff and the first defendant each hold a 50 percent beneficial interest in the 180 issued shares in the second defendant. (3) The first defendant pay the plaintiff's costs of the proceedings on an ordinary basis as agreed or assessed.

(4) Order pursuant to s 461(1)(k) of the Corporations Act 2001 (Cth) that the second defendant, Pharmacy Depot Hurstville Pty Ltd (prov liqds apptd) ACN 163 892 939, be wound up.

(5) Order that Daniel Frisken and Maxwell Prentice of BPS Recovery be appointed liquidators of the company.

(6) That these orders be taken out forthwith. Catchwords: CORPORATIONS – declaratory relief – declaration sought by plaintiff that he and first defendant each hold 50 percent interest in company – where company in provisional liquidation – whether plaintiff required leave to proceed with application for declaratory relief – Corporations Act 2001 (Cth), s 471B – whether declaration should be made by consent – whether party who consents is a proper contradictor

CORPORATIONS – winding-up – whether just and equitable to wind-up company – Corporations Act, s 461(1)(k) – irretrievable breakdown between company directors – where company insolvent Legislation Cited: Corporations Act 2001 (Cth), ss 461, 471B, 474(2) Cases Cited: Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406 Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) FCR 378; [2012] FCAFC 56 Booker v You Run the Business Pty Ltd [2008] FCA 1762 Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd [2001] NSWCA 97; (2001) 37 ACSR 672 Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 IMF (Australia) Ltd v Sons of Gwalia Ltd (Administrator Appointed) (2004) 211 ALR 231 Nassar v Innovative Precasters Group Pty Ltd [2009] NSWSC 342; (2009) 71 ACSR 343 Oil Basins Limited v Commonwealth of Australia (1993) 178 CLR 643 Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 Category: Principal judgment Parties: Yaakop (Jacob) Youssef (Plaintiff) Hamza Amin Zoghbi (First Defendant) Pharmacy Depot Hurstville Pty Ltd (in prov liq) (Second Defendant) Representation: Counsel: Mr M Klooster (Plaintiff) Mr C Robinson (Defendants)