In the matter of Aquaqueen International Pty Limited
[2015] NSWSC 212
•02 March 2015
Supreme Court
New South Wales
Medium Neutral Citation: In the matter of Aquaqueen International Pty Limited [2015] NSWSC 212 Hearing dates: 2 March 2015 Date of orders: 02 March 2015 Decision date: 02 March 2015 Jurisdiction: Equity Division - Corporations List Before: Brereton J Decision: Interlocutory process dismissed
Catchwords: CORPORATIONS – external administration – winding up – winding up in insolvency – application to set aside appointment of liquidator – whether application for winding up determined within time – where extensions of time for determination granted – where up to and beyond date of winding up order – where stay of winding up order arguably expired after last extension – held, application for winding up determined when winding-up order made. Legislation Cited: (Cth) Corporations Act, s 459P, s 459R, s 465B, s 482 Category: Procedural and other rulings Parties: Aquaqueen International Pty Ltd (plaintiff)
Titan National Pty Ltd and Kathryn Wood-Weber (defendants)Representation: Counsel:
Solicitors:
S Penson (in person) (plaintiff)
C Perry (solicitor) (defendant)
Pure Legal (defendant)
File Number(s): 2013/297134
Judgment (ex tempore)
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HIS HONOUR: On 2 October 2013, Mr Wolfgang Weber filed an originating process claiming an order under (Cth) Corporations Act, s 459P, that the company Aquaqueen International Pty Limited be wound up and a liquidator appointed. On 25 March 2014, Black J ordered that the company be wound up, but stayed those orders for a period to provide the company with an opportunity to discharge the debt to Mr Weber. His Honour also extended the time for determination of the winding-up application under s 459R.
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On 9 April 2014, by consent I set aside the orders made on 24 March 2014 for the winding-up of the company and the appointment of liquidators, the petitioning creditor having been paid out, and granted leave for Titan National Pty Limited and Ms Kathryn Wood-Weber to file an interlocutory process to be substituted as plaintiffs, and on 30 April 2014, I made orders under Corporations Act, s 465B, that they be substituted as plaintiffs, and pursuant to s 459R(2) extended the time for determination of the winding-up application to 30 September 2014.
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After various further interlocutory applications and further extensions of time under s 459R(2), Black J heard the winding-up proceedings on 10 and 21 October 2014, and delivered a judgment on 20 November 2014, pursuant to which his Honour made orders that the company be wound up and Mr Trent Andrew Devine of Jirsch Sutherland be appointed liquidator. His Honour also made the usual costs orders and reserved liberty to the plaintiff to apply for special costs orders.
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After an application for a stay was made on behalf of the company, his Honour made further orders noting the company's undertaking by its director not to dispose of assets other than in the course of arm's length transactions in the ordinary course of business not exceeding in total $7,500, staying the winding-up order and the order appointing a liquidator until 10 December 2014, and subsequently extending the time for determining the winding-up application under s 459R to 31 December 2014.
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An application for leave to appeal from his Honour's orders was filed in the Court of Appeal. On 17 December 2014, Barrett J, apparently by consent, extended the stay of the winding-up order until 9 February 2015. As it would seem that the stay had already expired on 10 December 2014, that may have been pursuant to the power to stay a winding-up conferred by Corporations Act, s 482, which can be exercised after a winding-up has commenced.
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The plaintiff – the respondent in the Court of Appeal – did not consent to a further extension of that stay after 9 February, and in a judgment delivered on 11 February 2015, the Court of Appeal refused to extend the stay any further.
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By an interlocutory process filed on 18 February 2015 and amended today, Ms Penson, as a shareholder and/or director of the company, claims an order dismissing the originating process and avoiding the appointment of the liquidator. The basis of the application is that it is said that the time for determination of the originating process was not further extended after 31 December 2014, being the last extension granted by Black J.
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Section 459R(1) provides:
An application for a company to be wound up in insolvency is to be determined within six months after it is made.
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Subsection (2) provides for the court, by order, to extend the period within which such an application must be determined. Subsection (3) provides:
An application is, because of this subsection, dismissed if it is not determined as required by this section.
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It is on that provision Ms Penson relies in seeking that the originating process now be dismissed.
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However, the fact is that a final winding-up order was made, albeit its operation stayed, on 20 November 2014. So far as I can tell, the stay of that order expired on 10 December 2014. Time for determining the winding-up application, on any view, was extended at least to 31 December 2014. In my view, the application was determined on 20 November 2014 when the winding-up order was made, notwithstanding that a stay was granted.
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In those circumstances the present application is entirely misconceived and cannot possibly succeed, and it is for that reason, amongst others, that I have declined Ms Penson’s application for an adjournment to permit further evidence to be adduced.
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The Court orders that:
The applicant Shirley Penson have leave to amend the interlocutory process by filing an amended interlocutory process in the form initialled by me, dated this day and placed with the papers.
The amended interlocutory process be dismissed.
Ms Penson personally pay the plaintiffs' costs of the interlocutory process, assessed in the sum of $1,650.
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Decision last updated: 12 March 2015
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