Hurst v Bar Machiavelli Pty Limited ACN 609 268 037

[2018] NSWSC 1511

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Hurst v Bar Machiavelli Pty Limited ACN 609 268 037 [2018] NSWSC 1511

Hearing dates:

04 October 2018

Date of orders:

04 October 2018

Decision date:

04 October 2018

Jurisdiction:

Equity - Corporations List

Before:

Parker J

Decision:

The Court appoints David Anthony Hurst as provisional liquidator of Bar Machiavelli Pty Limited (ACN 609 268 037)

Catchwords:

CORPORATIONS – winding up – application for the appointment of a provisional liquidator – company unable to meet obligations to creditors after business of the company transferred to third party – company unable to pay fees to administrator

Legislation Cited:

Corporations Act 2001 (Cth), s 443D

Category:

Procedural and other rulings

Parties:

David Anthony Hurst (Plaintiff)
Bar Machiavelli Pty Ltd (Defendant)

Representation:

Counsel:
MJ Dawson (Plaintiff)

 

Solicitors:
Johnson Winter & Slattery (Plaintiff)

  No appearance (ex parte):
Bar Machiavelli (Defendant)

File Number(s):

2018/302839

Publication restriction:

Nil

Judgment - ex tempore

Revised and reissued 8 October 2018

1. This is an application for the appointment of a provisional liquidator to the defendant, Bar Machiavelli Pty Ltd. The plaintiff, David Anthony Hurst, was formerly the administrator of the company. He has today commenced urgent proceedings as plaintiff to have the company wound up in insolvency and that he be appointed as the liquidator of the company. The application before the Court today is for him to be appointed as liquidator provisionally, pending the hearing of the winding up application.

2. The business of the company is the conduct of a restaurant at Rushcutters Bay in eastern Sydney. On 12 June 2018 the sole director of the company, Ms Paola Toppi, appointed Mr Hurst as voluntary administrator. Eventually a number of proposals for a deed of company arrangement were put forward and a meeting of creditors was scheduled to vote on those proposals on 2 October, that is, Tuesday this week.

3. Shortly prior to the meeting both proposals were withdrawn and the creditors at the meeting resolved that the administration of the company should end. None of the resolutions put forward by Mr Hurst for approving his remuneration and disbursements were passed.

4. It is apparent that the events at the creditors’ meeting are the result of some sort of agreement which has been reached involving major creditors of the company who are also unit holders in a unit trust of which the company is the trustee and pursuant to which it operates the business. It appears that that agreement has involved the payment out of debts owed to those creditors but not other creditors of the company.

5. A further part of the agreement appears to be that the business of the company has been transferred to a third party. The result is to leave the company as a shell, unable to meet its obligations to the creditors other than those who are parties to the agreement and unable to meet its obligations to pay Mr Hurst's fees pursuant to the Corporations Act 2001 (Cth), s 443D.

6. In my view the evidence before me is sufficient to establish that there is a prima facie case that the company is insolvent and that it is necessary, in order to protect the interests of the current and prospective creditors of the company other than those parties to the agreement to which I have referred, for a liquidator to be appointed provisionally so as to vindicate any claims that the company may have.

7. I am satisfied that Mr Hurst, as the prospective liquidator, is a suitable person to be appointed as provisional liquidator; and a consent from Mr Hurst has been filed with the Court.

8. Accordingly, I propose to make an order for the appointment of Mr Hurst as liquidator provisionally, as requested.

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Amendments

08 October 2018 - Minor typographical amendments

09 October 2018 - Amended case title