Nillumbik Shire Council v Banks Wood Developments Pty Ltd

[1998] FCA 1061

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 3209  of 1998

BETWEEN:	NILLUMBIK SHIRE COUNCIL APPLICANT
AND:	BANKS WOOD DEVELOPMENTS PTY LTD (ACN 056 598 433) RESPONDENT

JUDGE(S):	WEINBERG J
DATE:	25 AUGUST 1998
PLACE:	MELBOURNE

EX TEMPORE REASONS FOR JUDGMENT

There is before the court an application by notice of motion pursuant to s 482(1) of the Corporations Law in which the applicant, John Charles Freeman, a contributory, director and shareholder of Banks Wood Developments Pty Ltd (“Banks Wood”), a company which is the subject of a winding-up order, seeks to have that order terminated.  The winding-up order was made on 4 August 1998 on the application of the petitioning creditor, Nillumbik Shire Council, upon the basis that Banks Wood had failed to meet a statutory demand in the sum of $3383.75, that amount being the costs of previous legal proceedings.

There is evidence before me which is uncontroverted, and which I accept, that the failure to meet the demand was the result of a genuine though mistaken belief on the part of Banks Wood and its former legal adviser that the debt in question had already been discharged by a previous payment of $12,000 which had been made to the Council.  There is also evidence before me, which I accept, that all of the creditors of Banks Wood consent to the termination of the winding-up, that the liquidator also consents, and that he is in funds to enable the immediate payment of the amount of the statutory demand together with costs, and his own fees.  There is nothing to suggest that Banks Wood is other than wholly solvent, and likely to remain so in the future.  Nor is there any suggestion that Banks Wood has conducted itself in a manner which is “detrimental to commercial immorality” in the sense in which that term is used in this context – see for example Chan v Austgrove Enterprises Pty Ltd (in liq) (1993) 12 ACSR 427 at 430 or that there has been such “sloppiness” on the part of its management that the public interest requires that the winding-up continue.

I am satisfied therefore that, in accordance with the general principles enunciated by Master Lee QC, as his Honour then was, in Re Warbler Pty Ltd (1982) 6 ACLR 526 as approved by Santow J in Dubolo Pty Ltd (trading as Fender Signs) v Codrington Investment Corporation Pty Ltd (1998) 26 ACSR 723 at 724, it is appropriate that I exercise my discretion to terminate the winding-up forthwith, though on appropriate terms. I note the undertaking which is proffered by John Charles Freeman through Mr Sifris of counsel to make payment to the Nillumbik Shire Council of $8171.30 from the funds held in trust by the liquidator Gregory Stuart Andrews, within seven days of this day.

I make the following orders:

1. Pursuant to s 482(1) of the Corporations Law of Victoria, the winding-up of Banks Wood Development Pty Ltd be terminated with effect from 25 August 1998.

2. The fees and expenses of Andrews and Staff, fixed in accordance with the current IPAA rate for the State of Victoria (Melbourne District), be paid out of the funds held by Andrews in trust.

I certify that this and the preceding one (1) page is a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg

Associate:

Dated:             August 1998

Counsel for the Respondent:	Mr M Sifris
Solicitor for the Respondent:	Haines & Polites
Counsel for the Official Liquidator:	Mr P Macnish
Solicitor for the Official Liquidator:	Cornwall Stodart
Date of Hearing:	25 August 1998
Date of Judgment:	25 August 1998