Licardy v Solarsigns Pty Limited

DECISION : Plaintiff's claims should be dismissed

CATCHWORDS : TORTS [219] Trover and detinue - Demand and refusal - Sufficiency of demand

LEGISLATION CITED : Trade Practices Act 1974 (Cth) Fair Trading Act 1987

Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700 Baldwin v Cole (1704) 6 Mod Rep 212; 87 ER 964 Clayton v Le Roy [1911] 2 KB 1031 Enkelmann v Glissan (1982) 2 BPR 9,640 Fitzgerald v Kellion Estates Pty Limited (1977) 2 BPR 9,181 CASES CITED : Flowfill Packaging Machines Pty Limited v Fytore Pty Limited (1993) Aust Torts Reports 81-244 Frank Davies Pty Ltd v Container Haulage Group Pty Ltd (1989) NSW ConvR 55-084 Johnson Matthey (Aust) Ltd v Dascorp Pty Limited (2003) 9 VR 171 Lloyd v Osborne (1899) 20 LR (NSW) L 190 OzEcom v Hudson Investment Group [2007] NSWSC 1441 Spackman v Foster (1883) 11 QB 99

TEXTS CITED : Fleming on Torts (9th ed, 1998) Roscoe's Evidence in Civil Actions (20th ed, 1934)

Kylie Amber Licardy (plaintiff) Solarsigns Pty Limited (first defendant) PARTIES : Visual FX Creative Pty Limited (second defendant) Andrew Hatzigiannis (third defendant) John Hatzigiannis (fourth defendant)

COUNSEL : M Moir (plaintiff) J Darvall (defendants)

SOLICITORS : Populaw Legal Services (plaintiff) Mercuri & Co Solicitors (defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

5513/06 Kylie Amber Licardy v Solarsigns Pty Limited & 3 Ors JUDGMENT 1 HIS HONOUR: The questions in this case relate to the terms on which a business association was created in 2000 and continued until 2003 between the plaintiff on the one hand and the defendants on the other. The plaintiff alleges that, in the course of negotiations for the creation of the relationship and for a subsequent rearrangement of it, representations were made that were not met. The plaintiff alleges that those representations became contractual terms or alternatively may be relied on by her as constituting misleading or deceptive conduct within the meaning of the Trade Practices Act 1974 (Cth) or the Fair Trading Act 1987. In either case she claims that she is entitled to damages. She also makes a claim concerning the return to her of certain equipment that she introduced to the defendants' business and that she has not recovered. She also seeks the winding-up of the first defendant and the second defendant.

FACTUAL FRAMEWORK 2 The following facts are undisputed or easily found.

3 The plaintiff was from 1995 to 2000 a sole trader conducting a graphic design business under the name "Direct Insight". Her clients were principally real estate agents. She produced graphic design for use by them in the marketing of homes for sale. She also furnished them with their print work and signboards, which she had produced by contractors.

4 During the 1990s, the business of the first defendant was conducted by three brothers named Andrew, John and Con Hatzigiannis ("Andrew", "John" and "Con" respectively). The business was initially a business of producing Solarsigns, which were signs illuminated by solar power. It also came to produce advertising signs of other types and other advertising material. Con left the business to his brothers in 1999. They parted on bad terms. In fact, Con gave evidence for the plaintiff.

5 By 1998, the first defendant had become one of the contractors by which the plaintiff had signboards made for the purposes of her business. Her first contact was with Con but, after he left, she had frequent conversations with Andrew and John, who were the ongoing directors of the first defendant and are the third and fourth defendants respectively.

6 In 1998 and 1999 proposals were made to the plaintiff that she should come and work for the first defendant, which she declined. However, early in 2000 there were serious negotiations between the plaintiff on the one hand and the first defendant on the other (principally through Andrew) as to the terms on which the creative sides of their businesses might be merged.

7 During the course of those negotiations, the plaintiff alleges that various representations were made to her, but their content is the subject of some dispute. What is undisputed is that in May 2000 she moved a deal of equipment into the first defendant's premises and commenced working there. There is little doubt and I find that she did so pursuant to an agreement ("the first agreement"). There is dispute as to whether in the early days she worked full time or during what hours she worked there, but I do not think that much turns on that.

8 On 3 July 2000 a company called Recyclosigns (Australia) Pty Limited was renamed Visual FX Creative Pty Limited ("the second defendant"). On 17 July 2000 the plaintiff was appointed a director of the second defendant, the other two directors being Andrew and John. At about that time the shareholding of the second defendant was rearranged so that, out of 400 issued shares, 196 (49%) were held by the plaintiff and 102 shares each by Andrew and John (together 51%). Separate accounts of the first and second defendants do not appear to have been kept methodically or perhaps at all. In general terms, it seems that all transactions were recorded as being transactions of the first defendant and there was no inter company invoicing. Indeed, no formal accounts of the second defendant were prepared and much documentation that one would expect to have been kept by both companies is lacking.

9 However, there is little doubt that the plaintiff was in charge of doing the creative work and the other directors were in charge of administration, sales and production. The plaintiff and Andrew worked together closely and, it would seem, harmoniously during 2000 and early 2001. Indeed, there was between them at one stage what the plaintiff described as a "romantic relationship" and what Andrew described as an "affair". The plaintiff said that this lasted 4 months and was in 2000. Andrew said it lasted 6 months and was in 2001. The plaintiff later conceded that it may have been in 2001.

10 In October 2000 the new business was short of working capital and the plaintiff contributed $5,000 and Andrew and John jointly contributed $5,000. It was not clear on what basis this was contributed.

11 By 2001 the plaintiff had complained about the lack of formal contracts relating to arrangements between the parties. There is controversy as to whether in that context she specifically demanded a contract relating to her shareholding.

12 On 5 March 2001, the plaintiff wrote to Andrew and John a letter in the following terms: "May, 2000 we had an agreement that we would join together in a partnership to create a Design & Advertising Company that would complement Visual FX.

It has now been 10 months since the commencement of Visual FX Creative and a lot of dedication to structure and establishment has taken place. Visual FX Creative is now offering Visual FX Clients services that were not offered before, so I believe that Visual FX Creative has fulfiled [sic] its obligation to the commitment.

I believe that it is now imperative that we finalise the contracts that pertain to Visual FX Creative and I am requesting forthwith a 1) Draft deed of contract, 2) Incorporated Shareholders Agreement or a Partnership Agreement & 3) Exclusitivity [sic] Agreement.

As both a Director and a [sic] employee of Visual FX Creative I will need to finalise my salary package. I have put a lot of love, time and dedication into the establishment of creative but I now request a starting package of $60K including expenses. Please find attached an example of creative Directors salaries on offer at the moment, which are in the vicinity of $90 - $120K. I therefore believe that 60K is my requested salary in consideration that Creative is a business still in the making.

I request that you draw up the abovementioned contracts as a matter of urgency for my lawyer to peruse."

13 What were called "Creative Meetings" were by 2001 being held weekly, although agendas or minutes in respect of only three of them (being copies kept by the plaintiff) appear to have survived. Those were the meetings of 9 March, 10 August and 21 September 2001.

14 The items relating to a contract in the "Creative Meeting" documents are as follows: 9 March 2001: "Contract to be created between VFX and Creative. To include exclusivity, pricing and performance. Andrew to pass onto Solicitor to draft."

15 It seems that after the March meeting Andrew did in fact instruct Mercuri & Co solicitors, although it was not until 1 August 2001 that they sent Andrew a draft deed of agreement between the first and second defendants. That dealt only with relations between the two companies and did not touch at all on any entitlement of the plaintiff to shares or otherwise. Andrew passed the draft on to the plaintiff. It is the "contract" referred to at the Creative meetings of 10 August and 21 September 2001.

16 On 4 October 2001, the plaintiff signed a staff salary review by which her basic salary was increased from $40,000 pa to $60,000 pa. Against her signature she wrote "in accordance with agreement."

17 By late 2001, it would seem that relations between the plaintiff on the one hand and the defendants on the other had deteriorated. The plaintiff said that she was complaining about the lack of a formalised agreement and Andrew said that he was complaining about the performance of the Creative department headed by the plaintiff. There seems little doubt that late in 2001 an agreement was reached ("the second agreement") under which the plaintiff was to resign her directorship of the second defendant and to transfer half her shares in that company to Andrew and half to John. She was thereafter to be employed by the first defendant at a salary of $80,000 pa. By her statement of claim she claims that there was a representation that she was also to be issued with a 15% shareholding in the first defendant. This it is claimed she can rely on as a contractual term or alternatively misleading or deceptive conduct. But the making of this representation is hotly contested.

18 The uncontroversial terms of the second agreement were put into effect. She signed share transfers to Andrew and John that were dated 21 December 2001, although they specify the date of purchase as 7 January 2002. She signed a resignation as a director of the second defendant dated 19 December 2001. Minutes were created of a directors' meeting of the second defendant at which the plaintiff, Andrew and John were said to have been present on 7 January 2002 to approve the share transfers and accept the plaintiff's resignation as a director, although it is doubtful whether any such meeting actually took place. The transfers of the shares were duly recorded with ASIC. The plaintiff signed a contract of employment on 12 February 2002 under which she was to have a total remuneration of $80,880.00 pa. The contract was stipulated to become effective on 7 January 2002. There is no mention in that contract of any entitlement of the plaintiff to any shareholding in the first defendant. Andrew said that in January 2002 when presented by him with the draft contract of employment the plaintiff insisted that there be terms of the agreement that she be repaid her $5,000 contribution and that her old firm's debt to the first defendant should be written off. The debt was recorded as some $28,000; it was common ground that there was a debt although there was some dispute as to its amount.

19 The evidence shows that about 8 February 2002, the first defendant drew a cheque for $5,000 which was negotiated through its account on 11 February 2002. Andrew deposed that he arranged for the refund of the plaintiff's $5,000 capital contribution. The plaintiff denied that she received it. In the circumstances, I accept that the $5,000 cheque was paid to her and that it was a refund of her capital contribution. The plaintiff's indebtedness to the first defendant recorded in the first defendant's books as $28,851.80 was written off on 15 January 2002.

20 The plaintiff said that she complained during 2002 of the failure to issue her with any shares in the first defendant. On 4 December 2002, the plaintiff sent Andrew an email that included the following:

"January of this year I resigned as a Director of Visual FX Creative. At this time I was offered full time employment as Creative Director of Visual FX with a 5% shareholding (which never occurred) as it was decided that 'it was easier to have one organisation'. Our agreement was that I return on a $75,000 salary including a 2% profit share bonus scheme (issued to key staff) to be reviewed in August to further assess the request of a company vehicle (value of 75k)."

21 The following day the plaintiff, in a further email to Andrew, again referred to "the 5% shareholding".

22 It is clear that, after early 2003, relations between the plaintiff on the one hand and Andrew and John on the other became more fraught. There is no doubt that the plaintiff left the first defendant's employ on 14 March 2003, which was a Friday. Among the documents relating to her departure there is an undated letter to Andrew signed by the plaintiff in the following terms:

"I would like to thank you for the experience that I have encountered and all the opportunities presented to me within your organisation.

I believe that it is now time for me to take my career to the next level, therefore I would like to officially inform you of my desire to resign.

My last day of employment shall be the Friday 14th March.

Once again thank you and I wish you all the success and happiness in the future." 23 I should say at once that there is no dispute that the plaintiff signed this letter of resignation. There is a dispute as to whether the plaintiff produced that letter or whether Andrew composed it, had it typed and required the plaintiff to sign it. I have no difficulty in finding that Andrew composed this letter, had it typed and presented it to the plaintiff for signature as she deposed. Despite my reservations about her evidence expressed hereafter, I find it improbable that she would have cast a resignation letter in these terms in the circumstances that then prevailed. CONTESTED FACTS 24 There is contest as to the degree to which any of the representations was made and if made whether they became contractual terms or whether they operated as representations only. If they became contractual terms it is contested whether they were breached. If they were operative only as representations it is contested whether they were misleading or deceptive. It is contested whether any damages flowed from the failure to fulfil any contractual obligation or from the making of any representation. Further, it is contested whether, in view of the terms of the second agreement, the plaintiff remains entitled to pursue any rights under the original representations, whether incorporated in the first agreement or operating as representations only.

THE FACTS CONCERNING THE EQUIPMENT 25 The height of the plaintiff's case concerning the equipment is in her affidavit evidence where she states that she took the following items of equipment to the defendants' premises in May 2000: "a. Apple computers (3), monitors (2) & hard drives (3), b. Printers - LZR & Apple, c. Custom-made solid wood desk and some chairs, d. Image scanner - AGFA -, e. Various other items of equipment and furniture, f. Numerous creative software programs, g. Photo image CD library, h. Design Resource Books."

26 She attempted in an affidavit to place values on the equipment (apparently as at May 2000) but those were rejected as being beyond her competence as a witness. She gave some oral evidence as to the prices at which the items of equipment had been purchased by her prior to May 2000.

27 On Saturday, 15 March 2003, the day following her last day in the first defendant's employ, the plaintiff attended at the defendants' premises with her brother in a Suzuki Swift car. She took some papers away from the premises. She said that Bill Apostolidis:

"took several of my personal effects from me. I was not permitted to take any of the computers that I had taken into the business, nor any of my software programs, nor any of my furniture although I was not in a position to take any of my furniture at the time, in any event. Bill Apostolidis prevented me from taking any of the documentation that I had concerning my agreement with Andrew and John, Solarsigns and VFX Creative, and took from me any files pertaining to VFX Creative or its business."

28 Her brother Damien corroborates that she took some papers on that day, but was prevented by Bill Apostolidis from taking other papers on the basis that they were the company's property. Her brother does not suggest that she attempted to take or was prevented from taking any computer equipment or furniture. Bill Apostolidis denies that he prevented her from taking anything. THE LAW: DETINUE AND CONVERSION 29 There is a useful conspectus of the law in the judgment of Young J (as his Honour then was) in Flowfill Packaging Machines Pty Limited v Fytore Pty Limited (1993) Aust Torts Reports 81-244. To found an action in detinue there must be an unequivocal demand for the goods and a refusal to deliver them: Spackman v Foster (1883) 11 QB 99 at 100 per Grove J; Clayton v Le Roy [1911] 2 KB 1031 per Fletcher Moulton LJ at 1050. The claimant must specify a time and place at which and person to whom the goods are to be delivered: see the decision of the Full Court of this Court in Lloyd v Osborne (1899) 20 LR (NSW) L 190. And see the judgment of Hutley JA in the Court of Appeal in Fitzgerald v Kellion Estates Pty Limited (1977) 2 BPR 9,181. In the case of conversion, a refusal to deliver goods upon demand made for them may constitute a conversion: Baldwin v Cole (1704) 6 Mod Rep 212; 87 ER 964. However, the demand, if unequivocal, need not be as formal as that necessary to found detinue. Conversion can also be made out by evidence of an unequivocal act of appropriation: Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700 per Jordan CJ at 717; Johnson Matthey (Aust) Ltd v Dascorp Pty Limited (2003) 9 VR 171 per Redlich J at 229. This may include unauthorised use of the goods. And see generally Fleming on Torts (9th ed, 1998) 64-65; Roscoe's Evidence in Civil Actions (20th ed, 1934) Vol 2 981, 984.

THE PLAINTIFF'S CLAIMS 30 The plaintiff claimed that during the negotiations for the first agreement, the following representations were made to her by Andrew: "a) That the Plaintiff's business and the business carried on by the Third Defendant and Fourth Defendant through the First Defendant (other than signboards and large format printing) be merged into one business 'the new business'; b) That the Plaintiff, the Third Defendant and the Fourth Defendant would incorporate a new company through which the new business would be conducted; c) That the Plaintiff, the Third Defendant and the Fourth Defendant would each be directors and shareholders of the new company and that the Plaintiff would own 50% of the shares in the new company with the remaining 50% shares to be divided equally between the Third Defendant and the Fourth Defendant; d) That the Plaintiff's voting rights would be commensurate with the percentage of shares held by her; e) That the new business would trade under the business name and style of "Visual FX Creative"; f) That by virtue of the merger of the two businesses, the new business would offer a "total solution" to clients, i.e. comprehensive creative and graphic design services, advertising and the production of signboards (except for signboards and large format printing which would remain exclusively the domain of the First Defendant); g) That in addition to her other entitlements, the Plaintiff would be an employee of the new company and would receive a base salary of $100,000.00 per annum; h) That in addition to her base salary, the Plaintiff would be entitled to 50% of the profits of the new business, the remaining balance of the profits to be divided equally between the Third Defendant and Fourth Defendant; i) That each party's respective entitlement to the profits of the new business would be paid as a dividend at the conclusion of each year; j) That the ability to provide comprehensive services from a single source would result in a combined client base greater than the individual client bases of the two original businesses and in increased sales volumes from the cross-selling of services; k) That the Plaintiff, Third Defendant and Fourth Defendant would all benefit financially and generally due to the synergy created by combining their resources and skills."

31 The plaintiff continued to rely on all of these representations save for (g), which she abandoned in the absence of any evidence to support it. Her case was that the remaining representations were either incorporated in the first agreement or constituted representations that, if untrue, would constitute misleading or deceptive conduct. The plaintiff in particular relied on her entitlement to 50% rather than 49% of the shares in the new company and therefore the profits of the new business. She also relied upon the representation that the new business would be conducted through the new company. She says that it was not so conducted and that she was thereby deprived of profits.

32 The defendants contested in particular the allegation that the plaintiff was promised 50% as opposed to 49% of the shares.

33 The plaintiff claimed that in the course of the negotiations for the second agreement a promise was made that she would be issued with a 15% shareholding in the first defendant and that that promise either became a term of the second agreement or can be relied on as constituting misleading or deceptive conduct.

34 In relation to the equipment, the plaintiff claimed that the defendants are liable to her in conversion or detinue in respect of those goods. The plaintiff also claimed that as a result of the conduct that she alleged, the Court should make an order for the winding-up of the first defendant and the second defendant. SEPARATE DECISION OF QUESTIONS 35 During the course of the trial I made an order for the separate decision of questions in the following terms: "Order that all questions of the quantum of any monetary relief and the question as to any winding-up order that should be made be determined separately from and after the determination of the other questions in the proceedings." Although the defendants originally opposed the making of an order for separate decision, in the end this order was made by consent. CREDIT OF WITNESSES 36 Although a number of witnesses were cross examined, the witnesses whose credit is principally in issue are the plaintiff and Andrew, as on all accounts they were the participants in the conversations on which the plaintiff's case principally turns.

The plaintiff 37 The plaintiff was an unsatisfactory witness. She found it hard to address specific questions that were asked of her and was diffuse in her answers. However, as well as being destructive of her claim arising out of the second agreement, her evidence that was most generally destructive of her credit was her evidence concerning the shareholding promised to her in the first defendant. She verified by affidavit an allegation in her statement of claim that she was promised a 15% shareholding. Her affidavit evidence on trial was that she asked for 15%, but was promised only a 10% shareholding. But in her most contemporaneous documents referred to in [20]-[21] above, she claimed a 5% shareholding only. These inconsistencies relating to a very central matter throw great doubt on her credibility generally. I regard her as a witness whose evidence generally cannot be accepted unless it is corroborated by a credible witness or documentary material.

Andrew 38 Andrew was not a totally satisfactory witness. His address to questions was better than the plaintiff's. However, there was a contrast between his stated inability to recall many matters material to the case and his purported recall in great detail of matters and particularly conversations favourable to his case. His evidence must be approached with caution.

CONCLUSIONS The first agreement 39 In my view there was undoubtedly an agreement pursuant to which the plaintiff went to work for the defendants in May 2000. It incorporated as terms such of the "representations" as were made. The "representations" operated as terms of that agreement rather than representations only.

40 In the end, there was no real controversy that most of the representations were made. Whilst there was some argument as to whether the plaintiff's existing business and part of the first defendant's existing business were to be "merged" or whether there was to be a totally new business conducted in the new company, this does not matter much. The terms of the agreement were that there was to be conducted in a new company the plaintiff's existing business and the creative aspects of the first defendant's existing business. The plaintiff was to become a director of and a shareholder in the new company and the profits were to be divided proportionately to the respective shareholdings. Furthermore, subject to what appears below, there is no real controversy that the terms of the first agreement were met.

41 However, there was hot contest as to whether the plaintiff was promised 50% of the shares or the 49% that she was in fact given. There is also a contest as to whether or not the promise in representation (b) that the new business would be carried on in the second defendant was met.

42 As to the contest between a 50% and a 49% shareholding, I do not accept the plaintiff's version that she was promised 50%. This depends on her word, which was not corroborated in this regard and received no documentary support. The issue of only 49% of the shares to her cannot therefore be found to be a breach of any promise.

43 Furthermore, even if she had been promised 50% of the shares, there was no evidence to support a suggestion that the terms of the second agreement would have been any different if she had had and surrendered 50% rather than 49% of the shares in the second defendant. The deficiency of 1% could not on the evidence sound in damages in the events that have happened.

44 Similarly, in relation to representation (b), even though it seems to me that the new business was not conducted through the new company (all its transactions were put through the books of the first defendant), it is not established on the evidence that that fact would have led to a change in the terms of the second agreement.

45 But the plaintiff contended that the second agreement did not totally replace the first agreement or deprive the plaintiff of all her rights arising from it. In particular, she said that she remains entitled to the profits of the new business up to the time that the second agreement replaced the first agreement. She says that there should be an inquiry as to the profits she would have received if that business had been conducted through the second defendant.

46 However, I conclude that the first agreement was abandoned or dissolved by the making of the second agreement as found below and the parties were discharged from all obligations that arose under the first agreement. Its terms are not now available to found relief against the defendants. From all the circumstances I draw the inference that the parties' intention was, in the words suggested by Mr Darvall, of counsel for the defendants, "[that] a line was drawn off, that was history, and [the parties] moved on". In my view, that conclusion is indicated by the defendants' refund to the plaintiff (but not to themselves) of the $5,000 contributed capital and the forgiveness of whatever debt the plaintiff owed to the first defendant. It seems to me that the benefits under the second agreement were intended in lieu of, rather than in addition to, any share of profits or other rights that the plaintiff might have been entitled to under the first agreement.

47 It was in any event contested by the defendants that there were any profits to share. Even if I were of the view that the plaintiff had any entitlement to any profits, I should not on the evidence find that there was sufficient indication that there were profits to which she was entitled to justify the ordering of an inquiry into the amount of those profits. To found an order for an inquiry as to damages the Court must find that there is some damage that the plaintiff has suffered, albeit the Court makes no effort to quantify the damages: Enkelmann v Glissan (1982) 2 BPR 9,640 per Rath J; Frank Davies Pty Ltd v Container Haulage Group Pty Ltd (1989) NSW ConvR 55-084 per Hodgson J (as his Honour then was); OzEcom v Hudson Investment Group [2007] NSWSC 1441 per McDougall J. In this case, I cannot on the evidence see that it is established that there is any damage that the plaintiff has suffered.

48 There should therefore be judgment for the defendants on the claims arising from the representations relating to the first agreement.

The second agreement 49 As to the second agreement, I find that there was an agreement that the plaintiff should transfer her shares in the second defendant, resign as a director and be employed by the first defendant at a salary of $80,000 pa. She was to have her $5,000 capital contribution refunded to her and her debt to the first defendant forgiven. These terms of the second agreement were met. The plaintiff claimed that there was a further term of the second agreement that she would receive 15% of the shares in the first defendant. In the light of the conflicts in the plaintiff's evidence referred to in [37] above and the lack of any corroboration of any promise to issue her with 15% of the shares in the first defendant, I find on the evidence that no representation to that effect was made to her or that there was any such term in the second agreement.

50 There will therefore be judgment for the defendants on the claims relating to the second agreement.

Detinue and Conversion 51 There is no evidence of any requisite demand and or refusal to deliver the goods. There is no evidence of a demand before the plaintiff went to the defendants' premises on 15 March 2003. The only evidence is the plaintiff's non specific statement that on that day the defendants refused to deliver the equipment. However, on the evidence of both her brother and Bill Apostolidis, there was not even any request for those items on that day. The bulkier goods could not in any event have been taken away in a Suzuki Swift. I should record that I found that the most accurate account as to what occurred on that day was that of the plaintiff's brother and I prefer his evidence to that of both the plaintiff and Bill Apostolidis as to any basis for conversion.

52 As to any alternative basis for conversion, the only evidence that the desk was thrown away is the plaintiff's statement that Andrew said so. I do not accept her evidence to this effect. There is no evidence that the defendants used the goods after the plaintiff left the first defendant's employ.

53 There must therefore be judgment for the defendants on the plaintiff's claims in detinue and conversion.

Winding-up 54 Although I deferred questions relating to winding-up, in view of my findings, it seems to me there is no basis on which a case for winding-up the first defendant or the second defendant could succeed and that these claims could also be dismissed at this stage. RESULT 55 In my view, the appropriate result is that there should be judgment for the defendants generally on the plaintiff's claims. The normal course as to costs would be that the plaintiff should pay the defendants' costs of the proceedings, but I shall hear any submission to the contrary and also any submission as to the appropriateness of the dismissal of the proceedings for winding-up.

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