The Applicant sought Orders for Luis Filipe DaCosta De Souza Azevedo (“Mr. Azevedo”) and Mertal Overseas SA (“Mertal SA”) to be held jointly and severally liable for the costs of winding up VC Computer Holdings Limited (the “Company”). Mertal SA, a special purpose company incorporated in the British Virgin Islands, was the sole shareholder of the Company. Mr. Azevedo, the ultimate beneficial owner of Mertal SA, was the ultimate beneficial owner of Mertal SA and the Company.
As a general rule, costs incurred by a person who successfully presents a creditor’s winding up petition will be paid out of the assets of such company. However, in exceptional circumstances Courts may make an order against a non-party to the proceedings. Specifically, in the current case, the Court had discretion to make orders: (1) against Mertal SA due to the fact that the Company chose to participate in the proceedings and to defend the petition in its capacity as the Company’s sole shareholder and (2) against Mr. Azevedo, even though he did not make himself a party to the proceedings, under Section 24(3) of the Judicature Law which provides the Court discretion to determine by whom and to what extent the costs of proceedings are to be paid.
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In the Matter of VC Computer Holdings (in official liquidation), FSD 63/2014, per Jones J (17 April 2015)