In the Matter of WLW Pty Ltd Fullview Pty Ltd (ACN 059 626 658) v WLW Pty Ltd (ACN 006 691 612)

[1997] FCA 1272

FEDERAL COURT OF AUSTRALIA

CORPORATIONS LAW - WINDING UP - PRACTICE AND PROCEDURE - whether application for ADJOURNMENT by applicant for winding up ought to be granted

Corporations Law s 444D(3)

IN THE MATTER OF WLW PTY LIMITED (ACN 006 691 612)

IN THE MATTER OF FULLVIEW PTY LIMITED (ACN 059 626 658)
AND
IN THE MATTER OF WLW PTY LIMITED (ACN 006 691 612)
VG  3208  of 1997

PARKINSON JR
MELBOURNE
19 NOVEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 32028  of   1997

IN THE MATTER OF WLW PTY LIMITED
(ACN 006 691 612)

BETWEEN:	FULLVIEW PTY LTD (ACN 059 626 658) APPLICANT
AND:	WLW PTY LIMITED (ACN 006 691 612) (IN ADMINISTRATION) RESPONDENT
JUDICIAL REGISTRAR:			PARKINSON JR
DATE OF ORDER:			19  NOVEMBER  1997
WHERE MADE:			MELBOURNE

THE COURT ORDERS THAT:

1. The application is adjourned to 2 February 1998.

2. Costs reserved.

3. Any further affidavit material of the respondent to be filed on or by 16 January 1998.

4. Any further affidavit material of the applicant to be filed on or by 23 January 1998.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 32028 of 1997

IN THE MATTER OF WLW PTY LIMITED
(ACN 006 691 612)

BETWEEN:	FULLVIEW PTY LTD (ACN 059 626 658) APPLICANT
AND:	WLW PTY LIMITED (ACN 006 691 612) RESPONDENT

JUDICIAL REGISTRAR:		PARKINSON JR
DATE OF ORDER:		19  NOVEMBER  1997
WHERE MADE:		MELBOURNE

REASONS FOR DECISION

The applicant seeks an adjournment of the application made for the winding up of the respondent.  The respondent seeks that the application to wind up the company be dismissed. 

Having heard the parties and considered the affidavit material available to the court, including that of Mr McVeigh and Mr Sandor, I have decided to refuse the respondent’s application and to adjourn the winding up application.

I am satisfied that in the circumstances the adjournment ought be granted. This is so because of the matters raised by Mr Sandor in his affidavit at paragraph 6 and in particular the matters raised in paragraphs (a) (b) (g) and (h).  Also relevant in my view is the lengthy timetable attached to the steps to be taken under the deed of company arrangement and the fact that the continuance of the deed is subject to the recovery of funds by sale of assets within a specified period of time.   It is also apparent from the affidavit material and exhibits that the success of the deed is now less than certain. 

Whilst I am conscious of the role of the second meeting of creditors and the significance of the adoption of the deed of arrangement, I am not satisfied that the court is prevented from taking any further steps in relation to the winding up application as a consequence of the adoption of the deed of arrangement. However I do not believe that the operation of s444D(3) has been fully canvassed and I have reached no final conclusion as to its operation in this circumstance.

The deed of arrangement either reduced to writing or executed has not been available to be scrutinised by the applicant or its advisors prior to this morning’s proceedings and there is no material before the court as to the status of the assets sales program and the status of the negotiations as to the position of the secured creditor, Jardines.  These matters have significance for the progression of the deed and its success.  In exercising the discretion to adjourn or in deciding to dismiss the winding up application I consider these matters relevant.  Further I am not satisfied that there is material before the court to suggest actual prejudice to the orderly progression of the deed of arrangement  as a consequence of the adjournment of these proceedings.

For these reasons I adjourn the application.

As to the question of costs, I am not satisfied that in the absence of the executed deed of arrangement the applicant was fully informed as to the matters relevant to the proper conduct of its case.  Costs are reserved.

The application made to wind up the company will be relisted on Monday 2 February 1998.  Any affidavit material to be filed by the respondent is to be filed on or by Friday 16 January 1998.  Any affidavit material to be filed by the applicant is to be filed on or by Friday 23 January 1998. 

I certify that this and the preceding two (2) pages
are a true copy of the Reasons for Judgment of
Judicial Registrar Parkinson.

Associate        :          
Dated             :          19  November  1997

APPEARANCES

Counsel for the Applicant                  :          Mr. J. Tsalanidis
Solicitors for the Applicant                :          Sheezel Sandor & Associates
Counsel for the Respondent              :          Mr. P.R.D. Gray

Solicitors for the Respondent            :          Wisewoulds

Date of hearing  :          19  November  1997