Leveraged Equities Ltd v Aussie Products Pty Ltd

[2007] NSWSC 1196

CITATION:	Leveraged Equities Ltd v Aussie Products Pty Ltd [2007] NSWSC 1196
HEARING DATE(S):	08/10/07
JUDGMENT DATE :	25 October 2007
JURISDICTION:	Equity Division Corporations List
JUDGMENT OF:	Barrett J
DECISION:	Winding up order; Order for appointment of liquidator
CATCHWORDS:	CORPORATIONS - winding up - application for winding up in insolvency - presumption of insolvency arising from failure to comply with statutory demand - unsuccessful application to have statutory demand set aside - holding summons for leave to appeal - grounds of appeal not reduced to writing - defendant in any event contends that it is solvent and leads evidence of solvency - solvency not proved
CASES CITED:	Leveraged Equities Ltd v Finance & Equity Pty Ltd [2007] 1197 NSWSC
PARTIES:	Leveraged Equities Ltd - Plaintiff Aussie Products Pty Ltd - Defendant
FILE NUMBER(S):	SC 3918/07
COUNSEL:	Ms J.A. Soars - Plaintiff Mr M.D. Foley, Solicitor - Defendant
SOLICITORS:	Allens Arthur Robinson - Plaintiff Foleys - Defendant

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

BARRETT J

THURSDAY, 25 OCTOBER 2007

3918/07 LEVERAGED EQUITIES LTD v AUSSIE PRODUCTS PTY LTD

JUDGMENT

1 This winding up application was heard with the application by the same plaintiff relating to Finance & Equity Pty Ltd (see Leveraged Equities Ltd v Finance & Equity Pty Ltd [2007] 1197 NSWSC), with evidence in each being evidence in the other.

2 The circumstances of this case are exactly the same, save that the debt the subject of the statutory demand (challenged before Hammerschlag J but not set aside: see [2007] NSWSC 886) was in the sum of $766,405.00. Again, there has been filed a holding summons in respect of an application for leave to appeal against dismissal of the application to have the statutory demand set aside. The proposed grounds of appeal, to the extent described orally, are the same in this case as in the other case.

3 As in the Finance & Equity case, a presumption of insolvency has arisen. The evidence upon which the defendant relies in attempting to rebut that presumption is exactly the same here as in the Finance & Equity case; also the other grounds of defence put forward are exactly the same.

4 For the reasons enunciated in the Finance & Equity decision, the court makes the following orders:

1. Order that Aussie Products Pty Ltd (ACN 115 970 995) be wound up in insolvency.
2. Order that Paul Andrew Billingham, an official liquidator, of Level 17, 383 Kent Street, Sydney be appointed liquidator of Aussie Products Pty Ltd.
3. Order that the defendant pay the plaintiff’s costs of the proceedings.
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