Bloc (ACT) Pty Ltd v Crafted Capitol Pty Ltd - [2021] ACTSC 81

SUPREME COURT OF THE AUSTRALIAN CAPITOL TERRITORY

Case Title:	Bloc (ACT) Pty Ltd v Crafted Capitol Pty Ltd
Citation:	[2021] ACTSC 81
Hearing Dates:	23 and 27 April 2021
Decision Date:	29 April 2021
Before:	Mossop J
Decision:	See [74] and [76] – [77]
Catchwords:	CORPORATIONS – WINDING UP – Application to wind up the first defendant in insolvency – where a stay on the winding up had previously been imposed – where the plaintiff has an unpaid
judgment debt under the Building and Construction Industry
(Security of Payment) Act 2009 (ACT) – presumption of insolvency arises from unpaid judgment debt – no evidence of solvency – discretionary reason to avoid winding up not established – winding up order made
BUILDING AND CONSTRUCTION – SECURITY OF PAYMENT
Building and Construction Industry (Security of Payment) Act
2009 (ACT) – adjudication award filed with court – adjudication award enforceable as judgment debt – existence of continuing
dispute about the expert determination process provides no basis
for failing to pay judgment debt – policy of the legislation requires
payment prior to final determination of rights
Legislation Cited:	Building and Construction Industry (Security of Payment) Act
2009 (ACT), ss 27, 38 Corporations Act 2001 (Cth), ss 459C(2)(b), 465C, 530 Court Procedures Rules 2006 (ACT), Schedule 6 r 2.9 Uniform Civil Procedure Rules 2005 (NSW), r 25.11
Cases Cited:	Canberra Drilling Rigs Pty Ltd v Haides Pty Ltd [2018] ACTSC 282 Cardile v LED Builders Pty Ltd [1999] HCA 18; 198 CLR 380 Empire Global Pty Ltd v SA Expert Designs Pty Ltd [2019] ACTSC 244 In the matter of HPack Investments Pty Ltd [2020] NSWSC 1638 Jackson v Stirling Industries Ltd (1987) 162 CLR 612 Multiplex Constructions Pty Ltd v Luikens and Anor [2003] NSWSC 1140 Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 Probuild Constructions (Aust) Pty Ltd v DDI Group Pty Ltd [2017] NSWCA 151; 95 NSWLR 82 Protectavale Pty Ltd v K2K Pty Ltd [2008] FCA 1248 Walton Construction Pty Ltd v Pines Living Pty Ltd [2013] ACTSC 114; 8 ACTLR 57
Parties:	SC 79 of 2021
Bloc (ACT) Pty Ltd (Plaintiff) Crafted Capitol Pty Ltd (First Defendant)
Crafted Central Pty Ltd (Second Defendant)
SC 88 of 2021
Bloc (ACT) Pty Ltd (Plaintiff) Malcolm Gracie (First Defendant) Crafted Capitol Pty Ltd (Second Defendant)
ES 9 of 2020
Bloc (ACT) Pty Ltd (Enforcement Creditor)
Crafted Capitol Pty Ltd (Enforcement Debtor)
Representation:	Counsel
A Greinke (Plaintiff/ Enforcement Creditor)
P Walker SC with B Buckland (Defendants in SC 79 of 2021/ Second Defendant in SC 88 of 2021/ Enforcement Debtor)
Solicitors
Mills Oakley (Plaintiff/ Enforcement Creditor) in SC 88 of 2021/ Enforcement Debtor)
File Numbers:	SC 79 of 2021
SC 88 of 2021 ES 9 of 2020
MOSSOP J:
Introduction

1. In proceedings SC 79 of 2021 the plaintiff, Bloc (ACT) Pty Ltd (Bloc), has sought orders for the winding up of the defendant, Crafted Capitol Pty Ltd (Capitol), in insolvency. Bloc also seeks orders to preserve the assets of Crafted…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] ACTSC 81
Decision Date

CaseChat Overview and Summary

Bloc (ACT) Pty Ltd sought to wind up Crafted Capitol Pty Ltd (Capitol) in insolvency. Bloc obtained a judgment against Capitol under the Building and Construction Industry (Security of Payment) Act 2009 (ACT). The primary legal issue was whether the court should wind up Capitol in insolvency. The court was required to determine if the presumption of insolvency arising from the unpaid judgment debt was rebutted and whether there were any discretionary reasons to avoid winding up Capitol. The court considered the policy of the SOP Act which requires payment prior to final determination of rights. The court found that Capitol was presumed to be insolvent and there was no evidence to rebut that presumption. The court also found that there were no sufficient discretionary reasons to avoid winding up Capitol. The court made an order for the winding up of Capitol and restrained Crafted Central Pty Ltd from dealing with its assets for a period of 28 days to allow the liquidator to assess the position.

Orders