mixed. Orders made 1 December 2017: (1) appointment of Mr Steven Nicols of Nichols + Brien as liquidator of D & D Corak Investments Pty Ltd; (2) all previous costs orders remain in effect; (3) the First,...
Key principles
A company may be wound up on the just and equitable ground where it has no director capable of exercising corporate authority; the absence of any director able to make corporate...
A power of attorney granted by a company cannot substitute for compliance with the statutory requirement that a proprietary company have at least one director resident in...
The Court will ordinarily appoint the plaintiff's nominated liquidator unless there is a reason to take a different approach (see discussion and citation of Re Hayes Steel...
Costs follow the event as a general rule under r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW), but the Court has a broad discretion to depart from that rule to achieve...
Issues before the court
Whether a proprietary company having no director capable of exercising corporate authority can be wound up as just and equitable.
Whether a power of attorney held by a third party can substitute for compliance with the statutory requirement that a proprietary company have a...
Plain English Summary
The plaintiff sought various remedies including winding up of a family-owned company. The Court found that the company had no director able to make corporate decisions since the death of its controlling director; a power of attorney did not cure that defect. On that narrow basis the Court ordered the company wound up and appointed the plaintiff's nominated liquidator. Because the plaintiff had pursued wider claims and largely failed, but nonetheless obtained the narrow winding up relief which could have been achieved on a briefer case, the Court exercised its discretion on costs and ordered the three active defendants to pay one-quarter of the plaintiff's remaining costs.
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Deep Dive
1,754 words · generated 23/06/2026
What happened
This was an equity proceeding in the Supreme Court of New South Wales (Black J) concerning D & D Corak Investments Pty Ltd and disputes between its shareholders, principally sisters Ms Lynette Boyd (plaintiff) and Ms Marie Ellersdorfer (second defendant), and another shareholder, Ms Judy Feeney (first defendant). Ms Boyd advanced a broad case including claims for specific performance of a memorandum of understanding and relief for oppression, and sought that the Company be wound up. The Company had not had a director appointed since the death of the late Mr Corak. Instead, certain corporate affairs were attended to by Ms Ellersdorfer under a power of attorney. Black J delivered a principal judgment on 22 November 2017 ([2017] NSWSC 1595) (referenced repeatedly in these reasons) in which he held that a winding up order should be made on narrow just and equitable grounds because the Company had no director able to exercise corporate authority (see the judgment summary quoting [53]-[55]). The Court directed parties to bring in short minutes of order and a liquidator's consent. On 1 December 2017 the Court made orders appointing Mr Steven Nicols of Nichols + Brien as liquidator and ordered that the First, Second and Third Defendants pay one-quarter of the Plaintiff's costs not already dealt with by previous cost orders (orders recorded in the reasons). The plaintiff had largely failed on her wider claims but obtained the narrow winding up relief.
Whether the Court should appoint the plaintiff's nominated liquidator or take another course.
How costs should be allocated where the plaintiff obtains partial/narrow success but pursued wider claims and largely failed.
Cited legislation
1 cited instrument linked from this judgment.
Why the court decided this way
Legal principle: The Court can make a winding up order on just and equitable grounds where management is so deficient that the company cannot be properly administered. Black J focussed on a narrow ground: the Company had no director capable of exercising corporate authority; the absence of any corporate officer able to authorise corporate acts (including revocation of the power of attorney) and the fact that substantial corporate activity occurred in that period (notably sale of a commercial property) supported lack of confidence in management (see the summary of reasons referencing [53]-[55]).
Power of attorney issue: The Judge expressly held that a power of attorney does not substitute for compliance with the statutory requirement that a proprietary company have at least one director resident in Australia and subject to statutory duties. An attorney is not thereby a director and cannot be treated as curing the governance deficiency (see the quoted passage at [53]-[55]).
Appointment of liquidator: The Court noted the ordinary practice of appointing the plaintiff's nominated liquidator unless reason exists to the contrary (citing Re Hayes Steel Framing Systems Pty Ltd) and that, in this instance, all parties consented or did not oppose the plaintiff's nominee, so the Court appointed Mr Nicols.
Costs: The Court applied the general rule that costs follow the event under r 42.1 UCPR but emphasised the discretion to depart from that rule to achieve fairness, that costs should reflect each party's responsibility for the incurring of costs (citing Commonwealth v Gretton, Heath v Greenacre Business Park and Oshlack). The plaintiff had pursued a wide case, including claims which failed (specific performance and oppression). The narrow winding up order obtained could have been determined on a more limited application and in a much shorter hearing. On the other hand, the defendants likewise did not submit to a Court-ordered winding up at an earlier stage and the practical difficulties of a members' voluntary winding up (no director to convene a shareholders' meeting, shareholder disputes) were relevant. Balancing these considerations the Judge concluded that a partial costs award was appropriate, ordering the three active defendants to pay one-quarter of the plaintiff's remaining costs.
Before and after state of the law
Before: The just and equitable ground for winding up is established doctrine; previous authorities and practice recognise circumstances where breakdown of relationships between members or deadlock or lack of confidence in management justify winding up. The Court relied on established principles about costs (Gretton; Heath; Oshlack) and the ordinary practice in appointment of liquidators (Re Hayes Steel).
This judgment's contribution: It applies the just and equitable principle to a factual setting where the corporate governance defect was the complete absence of any director able to exercise corporate authority and where an attorney had been exercising some functions. Black J clarifies that an attorney under a power of attorney does not replace a director for purposes of corporate governance and that the lack of any director can itself be a sufficient narrow basis for winding up. On costs, the judgment reaffirms the flexible approach to costs apportionment where a plaintiff obtains narrow relief after pursuing a wider failed case, and emphasises that proportionality and fairness govern departures from the general rule that costs follow the event.
After: The judgment orders (appointment of liquidator and costs allocation) are transactional and procedural. The decision is a reasoned application of existing principles rather than a new doctrinal rule; its practical guidance is strongest for fact patterns with no director and an attorney acting in the interim.
Key passages with plain-English translation
Quoted passage (judicial text): "It seems to me that a winding up order must here be made, on a narrow basis, where the Company has not had a director appointed to it since the death of the late Mr Corak and does not presently have a director appointed to it who can make corporate decisions on its behalf." (see the judgment summary quoting [53]-[55])
Plain-English translation: Because the company lacks any director who can legitimately make decisions, the Court will wind the company up. That absence of a decision-maker means the company cannot be properly governed and the Court should step in.
Quoted passage: "The power of attorney granted by the Company to Ms Ellersdorfer ... cannot substitute for compliance with the requirement that a proprietary company have at least one director resident in Australia, who is subject to the statutory responsibilities imposed on a properly appointed director." (see [53]-[55])
Plain-English translation: Even though Ms Ellersdorfer was doing things for the company under a power of attorney, that does not take the place of having a legally appointed director. An attorney cannot carry the legal responsibilities of a director.
Quoted passage on costs: "While the general principle ... is that costs follow the event, that principle has qualifications ... underlying both the general rule and the qualifications ... is the idea that costs should be paid in a way that is fair, having regard to what the court considers to be the responsibility of each party for the incurring of the costs." (citing Gretton and Heath)
Plain-English translation: Usually the winner recovers costs, but the court can depart from that rule if fairness requires it; the court will consider who is responsible for causing the costs and divide them accordingly.
What fact patterns trigger this precedent
A proprietary company with no director appointed or able to exercise corporate authority for an extended period, particularly where that absence follows the death or departure of a 'controlling mind' of the company (the facts here). Black J treated this situation as sufficient to ground a winding up on just and equitable grounds (see [53]-[55]).
Situations where an attorney is acting for the company under a power of attorney but no director is appointed: this judgment makes clear an attorney's role does not cure the statutory requirement or the governance deficit.
Cases where significant company transactions have occurred while no director was properly appointed (for example sale of property), elevating concern about the adequacy of oversight.
Disputes among shareholders that prevent a swift members' voluntary winding up because there is no director to convene a shareholders' meeting.
How later courts have treated it
This judgment itself cites and applies existing authorities on costs and liquidator appointment (Commonwealth v Gretton; Heath v Greenacre Business Park; Oshlack; Re Joe & Joe Developments; Re Swan Services). The present reasons are a first-instance application of those principles to a particular governance defect. As of the decision date reflected in these reasons, the judgment is a contemporaneous application; no subsequent appellate treatment of this precise decision is recorded within the text of the judgment. Practitioners should check subsequent reported decisions and citators for any appellate treatment or adoption of the specific propositions (particularly the proposition that an attorney cannot substitute for a director) after 1 December 2017.
Still-open questions
Threshold and scope for 'no director' just and equitable winding up: Black J made an order on a 'narrow basis' relying on absence of any director. The judgment expressly did not decide whether a breakdown of the personal relationship between members could alone justify winding up in other circumstances (the Court said it was not necessary to reach that determination), that remains open (see the initial observation at [53]-[55]).
Extent to which an attorney's conduct could weigh against winding up: while the Court held that a power of attorney does not substitute for a director, the extent to which comprehensive, ongoing, properly documented exercise of powers by an attorney might affect a court's exercise of discretion in other factual matrices remains a question of fact for future cases.
Precise approach to costs apportionment in mixed-success corporate cases: Black J applied a one-quarter apportionment here after balancing competing conduct and practicalities. The decision illustrates the flexible, fact-sensitive nature of costs apportionment but does not lay down a precise formula; future courts will have to apply proportionality on the facts.
Practical remedies for shareholder deadlock where a company has no director: this judgment highlights the procedural difficulty of members' voluntary winding up when no director exists to convene meetings; how courts will intervene to facilitate non-court windings in different configurations of shareholder relations is an area for further development.
Interaction with statutory director residency requirements: while the judgment emphasises compliance with the statutory requirement for a resident director for proprietary companies, questions remain about remedial pathways short of winding up where appointment might be commercially possible but blocked by shareholder dispute.
Conclusion: Boyd v Feeney (reasons for orders) applies settled principles to a fact pattern where the absence of any director rendered corporate governance defective; it orders winding up and appoints a liquidator, and exercises costs discretion to allocate responsibility for the expenses of the litigation. The practical messages for practitioners are: ensure companies maintain formal corporate officers; do not assume a power of attorney will substitute for a director; and expect courts to exercise costs discretion where parties advance wide and ultimately unnecessary cases.
Judgment (5 paragraphs)
[1]
Solicitors:
Wills & Estates Legal Services (Plaintiff)
Ziman and Ziman Solicitors (First Defendant)
Marsdens Law Group (Second to Fourth Defendants)
File Number(s): 2015/159789
[2]
Background
On 22 November 2017 I delivered judgment in these proceedings ([2017] NSWSC 1595) ("Judgment"). I held (at [53]-[55] (omitting citations)) that:
"It is not necessary to reach a determination whether a breakdown of the personal relationship between the sisters could have justified a winding up on this basis, had the corporate affairs of [D&D Corak Investments Pty Limited ("Company") otherwise been properly conducted. It seems to me that a winding up order must here be made, on a narrow basis, where the Company has not had a director appointed to it since the death of the late Mr Corak and does not presently have a director appointed to it who can make corporate decisions on its behalf. The fact that a company has no directors capable of exercising corporate authority has long been recognised as a matter which may support a winding up application, although none of those cases involves a situation where there has been an ongoing attempt to exercise corporate powers under a power of attorney …. I can see no basis on which the Court could permit a situation to continue, into the indefinite future, where the Company has no director capable of making a corporate decision on behalf of the Company, including a decision to revoke the power of attorney granted to Ms Ellersdorfer, and Ms Ellersdorfer is left, in the indeterminate future, to conduct its affairs without a director or proper corporate governance being in place, unless or until any voluntary winding up takes place. It seems to me that the power of attorney granted by the Company to Ms Ellersdorfer to conduct aspects of its affairs, cannot substitute for compliance with the requirement that a proprietary company have at least one director resident in Australia, who is subject to the statutory responsibilities imposed on a properly appointed director.
I am reinforced in that view by the fact that, first, the Company has undertaken substantial activities in the period in which no director has been appointed to it, including the sale of a substantial commercial property and, for a period, took an active role in these proceedings. Second, Ms Ellersdorfer, in attending to aspects of the Company's affairs as its attorney, seems largely to have left the question of what was to be done with those loans to her or the estate's advisers to be addressed in the context of the settlement of the proceedings under the Succession Act. By contrast, a director of a proprietary company which was owed the amount owed by Ms Feeney and her associated company on an unsecured basis would, in exercising his or her statutory duty of care and diligence, have needed to give close personal attention to that issue. Third, there is a real question as to whether the Company could have taken any step to recover the loans from Ms Feeney or the company associated with her since Mr Corak's death, where no corporate officer could have authorised the taking of that step, if it had sought to do so. Fourth, going forward, if difficulties arise in respect of the arrangements contemplated by the orders made by the Court in the proceedings under the Succession Act, so far as they affect the Company and its loans to Ms Feeney and her associated company, the Company has no director presently appointed to it who could determine the steps that it should take in that respect. It seems to me that those matters support the lack of confidence in the Company's management for which Mr Simpson contends (T135).
It seems to me that, on those narrow grounds, an order for winding up of the Company on the just and equitable ground should be made."
I then summarised the conclusions I had reached (at [56]-[58]) as follows:
"For the reasons set out above, a liquidator would properly be appointed to address the Company's position in respect of the orders made in the proceedings under the Succession Act and, if those orders do not in fact bring about prompt repayment of the loans made by the Company to Ms Feeney and the company associated with her, to take appropriate steps to require repayment of those loans, realise any other remaining assets of the Company, discharge any debts and distribute the surplus among contributories. Notwithstanding that Ms Boyd sought an order for the winding up of the Company, she did not tender a liquidator's consent to appointment, which will be required before the Court can order a winding up or appoint a liquidator. Ms Ellersdorfer annexed two consents of a liquidator to her second affidavit. The Court will ordinarily appoint the Plaintiff's choice of liquidator unless there is reason to take a different approach: Re Hayes Steel Framing Systems Pty Ltd (admins apptd) [2017] NSWSC 385. It will therefore be necessary for the parties to bring in orders and a consent of a liquidator nominated by the Plaintiff before he or she can be appointed. I will order below that that be done within 7 days.
I propose to stay the winding up order for 21 days after it is made, to allow the parties a last opportunity to seek to resolve their differences, or, if it is practicable to do so given the divisions between them, cause the appointment of a liquidator in a voluntary liquidation by the means permitted by the Corporations Act.
While the general principle, reflected in r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW), is that costs follow the event, that principle has qualifications: Commonwealth of Australia v Gretton [2008] NSWCA 117 at [121]; Heath v Greenacre Business Park Pty Ltd [2016] NSWCA 34 at [98]; Re Swan Services Pty Ltd (in liq) [2017] NSWSC 692 at [25]. My preliminary view, subject to hearing from the parties, is that an order should be made that the Defendants (other than the Company) pay a portion, perhaps one quarter, of Ms Boyd's costs of these proceedings as agreed or as assessed, where she has had some success and would not have needed to pursue the case, or incur the costs of running it, had the Defendants submitted to a winding up order being made by the Court. However, Ms Boyd initially advanced a wide case, parts of which related to events many years ago and parts of which (as to the property occupied by Ms Ellersdorfer) were not pressed at the hearing. Ms Boyd also failed in the substance of her application; did not obtain either an order for specific performance of the MOU or relief in oppression; and has succeeded in obtaining an order for winding up on a narrow ground that could readily have been determined in a half day hearing, had an application been brought on that narrow ground. In those circumstances, it seems to me that there would be real unfairness to the Defendants in ordering that they pay Ms Boyd's costs of the proceedings in full."
I also made the following direction:
"I direct the parties to bring in, within seven days, agreed short minutes of order providing for the appointment of a liquidator, a stay of those orders for 21 days and costs, together with a consent of the liquidator to be appointed; or, if there is no agreement between the parties as to orders, their respective draft minutes of order, the consent of any liquidator which the party proposes should be appointed to give effect to this judgment and their submissions as to costs. I will then make orders in Chambers to give effect to the judgment and as to costs."
On 29 November 2017, Ms Feeney, the First Defendant, personally (rather than by her solicitor, who she indicated was ill) sent an email to my Associate providing draft orders for the immediate appointment of a liquidator without a stay of the winding up. Ms Feeney there referred to matters affecting her position that, she contended, supported the immediate appointment of a liquidator without a stay, to maximise the prospect that the liquidator could realise the Company's assets promptly and make a distribution to the three shareholders, in her case net of the loan and interest that she owed the Company. My Associate responded, at my request, noting the difficulty in the Court accepting submissions from Ms Feeney personally while a solicitor was acting for her in the proceedings.
Later that day, Ms Feeney's solicitor wrote to the Court requesting the matter be relisted to finalise the appointment of a liquidator and so that the argument as to costs could be dealt with orally. My Associate responded, at my request, indicating that I did not propose to relist the matter for a further oral hearing where I had made directions for the parties to bring in short minutes of order or, if there was no agreement between them, their respective draft short minutes of order and submissions. I indicated that I would extend the time for the parties to bring in such draft orders and submissions to 4pm on 30 November 2017.
Also on 29 November 2017, the solicitors for the Plaintiff, Ms Boyd, submitted draft minutes of order which provided for an order that Mr Steven Nicols of Nicols & Brien be appointed liquidator of the Company, with that order to take effect on the date it was made, and also submitted a consent of liquidator of Mr Nicols. Those orders also proposed, inconsistently with the direction that I had previously made, that the parties would serve submissions in respect of costs by 6 December 2017 with the matter then to be dealt with in Chambers.
On 30 November 2017, Ms Boyd on the one hand and the Second and Third Defendants, Ms Ellersdorfer and the Estate of the late Mr Dane Corak, on the other, made further submissions as to costs that I will address below. Ms Feeney did not make submissions as to costs.
I made orders in Chambers on 1 December 2017. These are my reasons for making those orders.
[3]
Appointment of liquidator
I noted in the Judgment that the Court would ordinarily appoint the Plaintiff's choice of liquidator, absent reasons to take a contrary approach. In the event, all parties now consent to, or do not oppose, the appointment of Mr Nicols as liquidator and I will take that course.
I had indicated, in the Judgment, that I would stay the order for appointment of a liquidator for a further period to allow the parties to seek to reach an alternative result. Both the Plaintiff and Ms Feeney press for a winding up order to take immediate effect and Ms Ellersdorfer and the Estate of Mr Corak did not oppose that course. No party now suggests that there is any utility in further discussions between the parties and, in those circumstances, there is no utility in a stay of the order for the appointment of a liquidator.
[4]
Costs
I had expressed a preliminary view as to costs in the Judgment. Ms Boyd on the one hand and Ms Ellersdorfer and the Estate of the late Mr Corak on the other addressed the question of costs by further submissions.
Mr Simpson, who appeared for Ms Boyd at the hearing, outlined the history of the proceedings and referred to the applicable principles in respect of an order for costs. Mr Simpson accepted that the Court had discretion to determine by whom, to whom and to what extent party/party costs were to be paid, but also submitted that costs would follow the event unless it appeared to the Court that some other order should be made as to the whole or any part of the costs, in accordance with r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW). Mr Simpson also noted that a successful party has a "reasonable expectation" of being awarded costs against an unsuccessful party, unless there is good reason for that presumption to be displaced: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [22], [134]. Mr Simpson also referred to the observation of Hodgson JA (with whom Mason P agreed) in Commonwealth of Australia v Gretton [2008] NSWCA 117 at [121] that:
"Underlying both the general rule that costs follow the event, and the qualifications to that rule, is the idea that costs should be paid in a way that is fair, having regard to what the court considers to be the responsibility of each party for the incurring of the costs."
That observation was cited, with apparent approval, by the Court of Appeal in Heath v Greenacre Business Park Pty Ltd [2016] NSWCA 34 at [98].
Mr Simpson submitted that the wider relief pursued by Ms Boyd was not without merit, was reasonably pursued in all the circumstances and was relevant to the Court's overall finding, and that the presumption as to costs would not be displaced so as to cause Ms Boyd to pay any of the Defendants' costs, but rather that the Defendants (other than the Company, which filed a submitting appearance at the hearing) should be ordered to pay 50% of the Plaintiff's costs. That percentage was higher than the percentage of 25% of those costs that I had indicated, in my judgment, reflected my preliminary view as to a possible outcome.
Mr Simpson also submitted that the evidence led by Ms Boyd as to matters of oppression was relevant to the winding up on just and equitable grounds and the Court's finding that there was an objective lack of confidence in the Company's management. I accept that evidence was of some relevance to supporting that order, although it was primarily led to support a wider oppression case and a wider application for winding up on just and equitable grounds and was not necessary to support the orders that I made on a narrower basis. That is reflected in my observation in the Judgment that Ms Boyd:
"has succeeded in obtaining an order for winding up on a narrow ground that could readily have been determined in a half day hearing, had an application been brought on that narrow ground."
I am not persuaded that those matters could warrant a higher proportion of costs being awarded in favour of Ms Boyd than I had indicated in my preliminary view.
[5]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 11 December 2017
Orders made 1 December 2017: (1) appointment of Mr Steven Nicols of Nichols + Brien as liquidator of D & D Corak Investments Pty Ltd; (2) all previous costs orders remain in effect; (3) the First, Second and Third Defendants pay one-quarter of the Plaintiff's costs of the proceedings not already dealt with by prior costs orders, as agreed or as assessed; (4) orders entered forthwith.
In Re Swan Services Pty Ltd [2017] NSWSC 692 at [26], I observed, with reference to authority, that the Court does not generally attempt to differentiate between the issues on which a party is successful and those on which it failed, although it may deprive a successful party of the costs relating to an issue on which it lost when that issue is clearly dominant or inseparable. I also observed that a costs order in favour of a successful party may be modified to reflect its failure on particular issues even if the successful party did not act unreasonably in raising them, and that:
"It may be appropriate to deprive a successful party of costs or a portion of its costs if the matters upon which it was unsuccessful took up a significant part of the trial, either by way of evidence or argument, and an issue by issue approach may be adopted if it will allow a fairer result than giving a party all of its costs". [omitting citations]
The Second and Third Defendants, Ms Ellersdorfer and the Estate of the late Mr Corak, submitted that an order should be made that Ms Boyd pay half of their costs of and incidental to the proceedings calculated on an ordinary basis. Mr Bennett, who appeared for Ms Ellersdorfer and the Estate of the late Mr Corak at the hearing, referred to several claims advanced by Ms Boyd that had failed.
Mr Bennett submitted that the Court, rather than Ms Boyd, had drawn attention to the significance of the fact that the Company had had no director in place and submitted that Ms Boyd did not adopt that contention in closing submissions even after the Court had raised that issue. That submission does not seem to be correct, as a matter of fact, since Mr Simpson had observed, inter alia, in oral submissions (T135) that:
"What flows from that is the conclusion of the lack of confidence that any reasonable business person or bystander would have in this company. With the greatest respect, it's shambolic management of this company that has just been unattended to since the passing of the controlling mind and to not have the insight or foresight to appoint an appropriate officer in the circumstances is, I submit, telling, absolutely telling."
Mr Bennett submitted that Ms Boyd had also failed entirely in the contentions and submissions that she had put and submitted that, where the Defendants were always agreeable to a members' voluntary winding up (Judgment [51]), three days of Court time were "wasted" by Ms Boyd's arguments. That submission reflected the oddity, to which I referred in the Judgment, that the proceedings were not resolved, although all the parties appeared to accept that the Company should be wound up; Ms Ellersdorfer and the Estate proposed a members' voluntary winding up and Ms Boyd supported a court-ordered winding up; and no party had identified any relevant difference between those two forms of winding up in the relevant circumstances. It is, however, by no means clear that responsibility for that unfortunate position can be attributed only to Ms Boyd. It was also by no means clear that the members' voluntary winding up favoured by Ms Ellersdorfer and the Estate could have been promptly or readily implemented where the Company had no director to call a shareholders' meeting and its shareholders were in dispute.
Mr Bennett in turn refers to my decision in Re Joe & Joe Developments Pty Ltd (subject to a deed of company arrangement) [2014] NSWSC 1703 at [34]-[36] as authority that a plaintiff, whose arguments failed but who nonetheless obtained an order similar to that which they sought, can still be ordered to pay costs following the "event", being their loss on the contentions made. Mr Bennett submitted that the outcome of the proceedings, being the appointment of a liquidator without a finding of blame on the part of the Defendants, was what had been offered by them to Ms Boyd by way of a members' voluntary winding up. Mr Bennett submitted that the hearing resulted from Ms Boyd's decision to press the specific performance and oppression claims, which failed entirely, and it seems to me that proposition is at least partly true.
Having now had the benefit of the parties' further submissions, I am not persuaded that I should take a somewhat different view from my preliminary view. I accept that the parties were put to the costs of the hearing partly by reason of Ms Boyd's continuing to press the specific performance and oppression claims, on which she failed. It seems to me that the parties were also put to the costs of the hearing in circumstances that the Defendants continued to press for a voluntary winding up, with the difficulties noted above, rather than submitting to a Court-ordered winding up before, at the commencement of or at any point during the hearing. The result was that all of the active Defendants incurred the costs of a hearing of three days. In the event, Ms Boyd was successful in obtaining the relief that she had sought, which the Defendants could have, but did not, accept should be given.
I will therefore order that all previous costs orders in the proceedings remain in effect and that the First, Second and Third Defendants pay one-quarter of the Plaintiff's costs of the proceedings not dealt with by such orders, as agreed or as assessed.
Accordingly, I made the following orders in Chambers on 1 December 2017:
Mr Steven Nicols of Nichols + Brien be appointed liquidator of D&D Corak Investments Pty Ltd ACN 000 057 849.
All previous costs orders in the proceedings remain in effect.
The First, Second and Third Defendants pay one-quarter of the Plaintiff's costs of the proceedings not dealt with by previous costs orders, as agreed or as assessed.