In the matter of Smith & Young Pty Ltd [2016] NSWSC 1976

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Smith & Young Pty Ltd [2016] NSWSC 1976 Hearing dates: Tuesday, 11 October 2016 Date of orders: 11 October 2016 Decision date: 11 October 2016 Jurisdiction: Equity - Corporations List Before: Brereton J Decision: Originating process dismissed with costs. Defendants released from the undertaking given on 6 May 2016. Catchwords: CORPORATIONS – winding up – winding up on just and equitable ground – where plaintiff is trustee in bankruptcy holding half of issued shares in company – where defendant holds other half of issued shares – where company's only function has been as trustee of two trusts – all property held in trust – no property available for distribution to contributories – mere reason that no return available for contributories no ground for refusing winding-up on just and equitable ground – where relationship between shareholders was allegedly unworkable – "just and equitable" concept – mere subjective failure of confidence insufficient – held, just and equitable ground not made good Legislation Cited: (CTH) Corporations Act 2001, s 467(5) Cases Cited: Catombal Investments Pty Ltd [2012] NSWSC 775 Ebrahimi Galleries Ltd, Re [1973] AC 360 Nestor, Re [1981] ALR 114 Re Bleriot Aircraft Co Manufacturing Limited, Re (1916) 32 TLR 253 Straw Products Pty Ltd, Re [1942] VLR 222 International Hospitality Concepts Pty Ltd v National Marketing Concepts (No 2)(1994) 13 ACSR 368 Texts Cited: Wedderburn, 'Winding Up on the 'Just and Equitable' Ground' (1964) 27 MLR 228 Category: Principal judgment Parties: Louise Ann Thomson as trustee of the property of Leslie James Young, a Bankrupt (plaintiff) Josephine Aapa Smith (first defendant) Smith & Young Pty Ltd (second defendant) Representation: Counsel: P C Eardley (plaintiff) E A Walker (defendants)