Grocon Constructors Pty Ltd v Kimberley Securities Ltd - [2009] NSWSC 572

CITATION: Grocon Constructors Pty Ltd v Kimberley Securities Ltd [2009] NSWSC 572

HEARING DATE(S): 04/05/09, 05/05/09, 06/05/09, 17/06/08, 18/06/09

JUDGMENT DATE :
18 June 2009

JURISDICTION: Equity Division
Corporations List

JUDGMENT OF: Barrett J

EX TEMPORE JUDGMENT DATE: 18 June 2009

DECISION: Winding up and other orders made as foreshadowed.

CATCHWORDS: CORPORATIONS - winding up - whether winding up order should be deferred or stayed - where company to be wound up is one of several defendants in other proceedings brought by present plaintiff - hearing of those proceedings to begin in two weeks - fear that need for leave to proceed against defendant in liquidation might cause hearing dates to be lost - insufficient basis for deferral or stay - choice of liquidator - various considerations discussed

LEGISLATION CITED: Corporations Act 2001 (Cth), ss 447A(1), 459A, 513C, 600A(2)(a), 600A(2)(d)

CATEGORY: Consequential orders

PARTIES: Grocon Constructors Pty Limited - Plaintiff
Kimberley Securities Limited - First Defendant
John Vouris - Second Defendant
Warren Pantzer - Third Defendant
Lohemi Pty Limited - Fourth Defendant
Gabriel Michael Lorentz - Fifth Defendant
Nathan Stoliar - Sixth Defendant
Building Insurers' Guarantee Corporation - Supporting Creditor

FILE NUMBER(S): SC 2199/09

COUNSEL: Mr J B Simpkins SC - Plaintiff
Mr T M Jucovic/Mr F G Kalyk - First, Fourth, Fifth and Sixth Defendants
Ms E A Collins - Second and Third Defendants
Mr D Curry, Solicitor - Supporting Creditor

SOLICITORS: Cosoff Cudmore Knox - Plaintiff
Osborne & Associates - First, Fourth, Fifth and Sixth Defendants
Addisons - Second and Third Defendants
Mills Oakey Lawyers - Supporting Creditor

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

BARRETT J

THURSDAY, 18 JUNE 2009

2199/09 GROCON CONSTRUCTORS PTY LIMITED v KIMBERLEY SECURITIES LIMITED (ADMINISTRATORS
APPOINTED)

JUDGMENT

1 In the judgment published on 16 June 2009, I stated that four orders would be made, being an order setting aside the resolution of creditors determining that the first defendant (“Kimberley”) should execute a deed of company arrangement, an order terminating that deed of company arrangement, an order that Kimberley be wound up and an order appointing a liquidator of Kimberley.

2 It is submitted on behalf of Kimberley that the making of these orders should be deferred until 27 July 2009 or, if the orders are made now, that they should be stayed until that date. Kimberley, through its counsel, has indicated that, in the intervening period, it would not plead the deed of company arrangement or any rights or limitations arising under it in answer to claims of the plaintiff (“Grocon”) in certain other proceedings now pending in the Commercial List; nor would it, without the leave of the court, dispose of any of its assets.

3 The pendency of the Commercial List proceedings lies at the heart of Kimberley's desire to see the making of orders deferred until 27 July or alternatively that any orders now made be stayed until that date.

4 The proceedings in question are due to be heard by Hammerschlag J over…

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: [2009] NSWSC 572
Decision Date: 18 June 2009

CaseChat Overview and Summary

Grocon Constructors Pty Ltd sought the winding up of Kimberley Securities Ltd, which contested the application. The Full Court of the Federal Court of Australia was tasked with determining whether the winding up order should be deferred or stayed. The key issue was whether the potential need for leave to proceed against the defendant in liquidation would cause the hearing dates of other proceedings to be lost. Kimberley Securities Ltd argued for a deferral or stay, fearing that the winding up would impede the hearing of the other proceedings.

The Court considered various factors, including the timing of the hearing in the other proceedings, which was set to begin in two weeks. It also discussed the potential difficulties that might arise if leave to proceed against the defendant in liquidation was required. The Court concluded that there was no sufficient basis for deferring or staying the winding up order. The Court also considered the choice of liquidator and discussed various considerations relevant to the appointment.

The Court dismissed the application for a deferral or stay, allowing the winding up order to proceed. The Court found that the timing and potential complications of the other proceedings were not compelling enough to warrant a deferral or stay. The Court also considered the importance of resolving the winding up matter promptly to ensure the proper administration of justice.

The Court did not make any orders regarding the choice of liquidator, as the primary issue of deferral or stay had been resolved. The winding up order was to proceed as sought by Grocon Constructors Pty Ltd. The Court emphasised that the decision was based on the specific circumstances of this case and did not set a precedent for other cases with different facts.

Orders