In the matter of Streamline Container Services Pty Ltd

[2024] NSWSC 431

Supreme Court

New South Wales

Medium Neutral Citation:	In the matter of Streamline Container Services Pty Ltd [2024] NSWSC 431
Hearing dates:	15 April 2024
Date of orders:	15 April 2024
Decision date:	15 April 2024
Jurisdiction:	Equity - Corporations List
Before:	McGrath J
Decision:	Order that the company be wound up in insolvency and liquidator appointed.
Catchwords:	CORPORATIONS — winding up — statutory demand — where the presumption of insolvency applies
Legislation Cited:	Corporations Act 2001 (Cth)
Cases Cited:	None
Category:	Principal judgment
Parties:	Sydney International Container Terminals Pty Ltd (Plaintiff) Streamline Container Services Pty Ltd (Defendant) Camellia Green Pty Ltd (Supporting Creditor)
Representation:	Counsel: U Danielian (Plaintiff) No appearance (Defendant) J Belmer (Solicitor) (Supporting Creditor) Solicitors: Mercantile Legal (Plaintiff) No appearance (Defendant) Memcorp Lawyers (Supporting Creditor)
File Number(s):	2024/00061376
Publication restriction:	Nil

JUDGMENT — EX TEMPORE (REVISED 19 APRIL 2024)

INTRODUCTION

1. This is an application pursuant to s 459P of the Corporations Act 2001 (Cth), which is made against Streamline Container Services Pty Ltd by a creditor of Streamline, being Sydney International Container Terminals Pty Ltd (SICT). SICT has brought the application on the basis that Streamline is an insolvent company which should be wound up in insolvency in accordance with s 459A of the Corporations Act.

EVIDENCE

2. I have been provided with the following materials in support of the application and which demonstrate each of the matters that I have set out below:

1. The creditor's statutory demand for payment of debt dated 12 January 2024 addressed to Streamline which was prepared by SICT. The statutory demand indicates as a description of the debt said to be owing that it was for invoices for port services dated between 30 October 2023 and 18 December 2023. The amount of the debt contained in the statutory demand is $60,218.93. It was drawn to my attention by Mr Danielian who appears on behalf of SITC that there was a suggestion of a defect in the statutory demand, being in relation to the address of the creditor for service of any application to set aside the statutory demand, which was completed as “C/- Mercantile Legal, Level 40, 140 William Street, Melbourne, Victoria, 3000”, and that this was just one of the addresses of Mercantile Legal at the time of the preparation of the statutory demand. In any event, I have determined that even if this could be regarded as a defect in relation to the statutory demand, pursuant to s 467A of the Corporations Act I must not dismiss the application for a winding up in insolvency merely because of a defect or irregularity in connection with the application, or in the case of an application for a company to be wound up in insolvency, a defect in a statutory demand, unless I am satisfied that substantial injustice has been caused that cannot otherwise be remedied. I am not satisfied that substantial injustice would be caused by any issue relating to the address of the creditor stated in the statutory demand.

2. The affidavit accompanying the statutory demand of Soon Kooi Ong affirmed 12 January 2024, which confirms that as at that date the debt was due and payable by Streamline and otherwise adheres to the requirements for such an affidavit.

3. The affidavit of Tammy Rae Cox affirmed 25 January 2024 which attests to the service of the statutory demand at the registered office address of Streamline by post on 12 January 2024.

4. The originating process filed 16 February 2024 in which the application was made by SICT, inter alia, for the winding up of Streamline in insolvency pursuant to 459P of the Corporations Act.

5. The affidavit of Soon Kooi Ong affirmed 15 February 2024 which attests to the obtaining of a current and historical extract of the records maintained by the Australian Securities and Investments Commission (ASIC) in relation to Streamline, and also attaches a statement of account dated 9 January 2024 which lists the respective invoices that comprise the outstanding debt of $60,218.93.

6. The affidavit of Tammy Rae Cox affirmed 19 February 2024 which attests to the service of the originating process at the registered office of Streamline by post on 19 February 2024, together with the affidavit of Soon Kooi Ong affirmed 15 February 2024 and its exhibits and the affidavit of service of the statutory demand of Tammy Rae Cox affirmed 25 January 2024 and its exhibits.

7. The affidavit of Tammy Rae Cox affirmed 19 February 2024 which attaches the lodgement with ASIC of the notification of court action relating to winding up, being Form 519, in relation to the winding up application brought by SICT against Streamline.

8. The consent of the liquidator Stephen John Michell of PCI Partners Pty Ltd dated 15 February 2024 consenting to being appointed by the court and to act as liquidator of Streamline.

9. The affidavit of Tammy Rae Cox affirmed 11 April 2024 attesting to the lodgement with ASIC of a notice of application for winding up order on 28 February 2024.

10. The affidavit of debt of Soon Kooi Ong affirmed 15 April 2024 which states that the outstanding debt of Streamline is still owing.

11. A current and historical company extract of Streamline which indicates that Streamline has not been wound up as at today’s date.

CONSIDERATION

3. In light of the fact that the statutory demand was not met and that the debt which is the subject of the statutory demand remains unpaid, the circumstances of Streamline is that a presumption of insolvency arises pursuant to s 459C(2)(a) of the Corporations Act. Streamline has not appeared in the proceedings to contest the presumption of insolvency.

4. Accordingly, I am satisfied that all of the matters to which I should give consideration in relation to an application for a winding up in insolvency pursuant to s 459P have been satisfied.

ORDERS

5. I therefore make the following orders:

1. The defendant be wound up in insolvency pursuant to s 459A of the Corporations Act.

2. Stephen John Michell of PCI Partners be appointed liquidator of the defendant.

3. The plaintiff's costs be reimbursed out of the property of the defendant.

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Decision last updated: 19 April 2024