Glenwood Village Pty Ltd v Glen Alpine Constructions Pty Ltd

[2009] NSWSC 516

CITATION:	Glenwood Village Pty Ltd v Glen Alpine Constructions Pty ltd [2009] NSWSC 516
HEARING DATE(S):	6 May 2009
JURISDICTION:	Equity Division Corporations List
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	6 May 2009
DECISION:	Order that the defendant be wound up in insolvency - plaintiff’s nominee appointed - plaintiff’s costs to be paid out of assets of the defendant
CATCHWORDS:	CORPORATIONS - External administration - winding up - where dispute as to appropriate appointee - plaintiff’s nominee ordinarily appointed
CATEGORY:	Principal judgment
CASES CITED:	Barclay v Barclay (Supreme Court of New South Wales, Kearney J, 22 December 1978, unreported) Parkinson v Morkaya [2008] NSWSC 1183
PARTIES:	Glenwood Village Pty Ltd (plaintiff) Glen Alpine constructions Pty Ltd (defendant)
FILE NUMBER(S):	SC 5769/08
COUNSEL:	JA Trebeck (plaintiff) P Bard (sol) (defendant) DH Mitchell (for B&F Gartshore Pty Ltd)
SOLICITORS:	Laycock Solicitors (plaintiff) Paul Bard (defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

BRERETON J

Wednesday 6 May 2009

5769/08 Glenwood Village Pty Ltd v Glen Alpine Constructions Pty Ltd

JUDGMENT (ex tempore)

1 HIS HONOUR: It is the practice of the Court that, all things being equal, it will appoint the plaintiff or applicant's nominee as receiver or liquidator where there is a contest as to the identity of the appropriate appointee and there is nothing to be said between the competing nominees as to their respective fitness, qualification or cost [Barclay v Barclay (Supreme Court of New South Wales, Kearney J, 22 December 1978, unreported); Parkinson v Morkaya [2008] NSWSC 1183].

2 In this case, nothing is said against the independence of the plaintiff's nominee, save that being located in Newcastle he might know someone who knows one of the directors. That is also a risk even in Sydney, although the risk might be less. It does not amount to, and was not put forward as, a suggestion of lack of independence, simply a possibility for later embarrassment.

3 I accept that cost can be a relevant consideration in differentiating between particular nominees. The costs consideration favour, albeit slightly, the appointment of a Newcastle liquidator.

4 The location of the records of the company, its registered office and the office of the remaining companies in the corporate group of which it is one in Newcastle favours the appointment of a Newcastle liquidator. There is some evidence to suggest that Mr Cahill, rather than Mr Bega, will be more extensively required to assist and provide information to the liquidator and he lives in Newcastle. To that extent the appointment of a Newcastle liquidator would be more convenient.

5 Moreover, in my view, disputes over appointment of a particular liquidator, unless there is a matter of substance to be said against the plaintiff's nominee, are to be discouraged.

6 I order that the defendant be wound up in insolvency. I order that Raymond George Tolcher be appointed liquidator of the defendant. I order that the plaintiff’s costs be paid out of the assets of the defendant. I make no order as to the supporting creditor's costs.

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