Re Reef Cove Resort Limited - [2009] QSC 378

SUPREME COURT OF QUEENSLAND

CITATION:

Re Reef Cove Resort Limited [2009] QSC 378

PARTIES:

HOLDING REDLICH LAWYERS ABN 15 364 527 724
(applicant)
v
REEF COVE RESORT LIMITED ACN 098 880 329

(respondent)

FILE NO/S:

BS 5969 of 2009

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court Brisbane

DELIVERED ON:

24 November 2009

DELIVERED AT:

Brisbane

HEARING DATE:

11 November 2009

JUDGE:

White J

ORDER:

1.      Reef Cove Resort Limited ACN 098 880 329 be wound up by this Court under the provisions of the Corporations Act 2001 (Cth).

2.      Jonathan McLeod be appointed as liquidator to conduct the winding up.

3.      The costs of the applicant of and incidental to this application (including issuing and serving the Creditor’s Demand for Payment of Debt) be costs in the winding up.

CATCHWORDS:

CORPORATIONS – WINDING UP – WINDING UP IN INSOLVENCY – STATUTORY DEMAND – OTHER CASES – where the applicant applied to wind up the respondent company on the ground of insolvency – where the respondent is a foreign company registered under Part 5B.2 Division 2 of the Corporations Act 2001 (Cth) – where the respondent purported to appoint administrators and purported to execute a Deed of Company Arrangement – whether the respondent is a company to which the provisions of the Corporations Act relating to external administration apply – whether the respondent ought to be wound up

Corporations Act 2001 (Cth), s 9, s9(a), s 17(2), s 117(1), s 118, s 119, s 119A, s 436A, s 583, s 601CE(j)

Peninsular Group Ltd v Kintsu Co Ltd (1998) 44 NSWLR 534, applied

COUNSEL:

G D Beacham for the applicant

No appearance for the respondent

SOLICITORS:

Holding Redlich Lawyers for the applicant
No appearance for the respondent

The applicant, Holding Redlich Lawyers, applied to wind up the respondent company, Reef Cove Resort Limited (“Reef”), by application dated 4 June 2009 on the ground of insolvency pursuant to s 583 of the Corporations Act 2001 (Cth) (“the Corporations Act”).

On 11 November 2009 I made an order winding up Reef and Jonathan McLeod was appointed the liquidator to conduct the winding up, with reasons to be provided subsequently. Those reasons I now provide.

The foundation for the application to wind up Reef is a creditor’s demand dated 8 April 2009 for $207,858.61 for the provision of legal services which remained unpaid to the date of the winding up.

Reef is a foreign company pursuant to Part 5.7 of the Corporations Act, registered in New Zealand.[1] It is registered in Australia under Part 5B.2 Division 2 of the Corporations Act, and has been allocated ARBN 098 880 329.[2]
[1]Corporations Act 2001 (Cth), s 9(a): “foreign company”.
[2]Corporations Act 2001 (Cth), s 601CE(j).

Reef did not appear on the hearing of the application although it was served and has appeared after that service on two previous occasions when the application to wind up was adjourned by consent. Correspondence exhibited to the several affidavits demonstrates that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Reef Cove Resort Limited

Details

AGLC: Re Reef Cove Resort Limited [2009] QSC 378
Case: [2009] QSC 378
Decision Date: 24 November 2009

CaseChat Overview and Summary

In the case of Re Reef Cove Resort Limited, the applicant sought to wind up the respondent company on the basis of insolvency. The respondent is a foreign company registered under the Corporations Act 2001 (Cth) and had purported to appoint administrators and execute a Deed of Company Arrangement. The primary issue before the court was whether the respondent was subject to the provisions of the Corporations Act relating to external administration and whether it should be wound up.

The court examined the relevant provisions of the Corporations Act and considered whether the respondent was a company to which those provisions applied. It was noted that the respondent had purported to appoint administrators and execute a Deed of Company Arrangement, which are mechanisms provided for in the Act. However, the court found that the respondent's actions did not meet the requirements of the Act, and therefore it was not subject to the external administration provisions. Consequently, the court determined that the respondent ought to be wound up.

The court ordered that Reef Cove Resort Limited be wound up by the Court under the Corporations Act 2001 (Cth). Jonathan McLeod was appointed as liquidator to conduct the winding up, and the costs of the applicant of and incidental to this application, including issuing and serving the Creditor’s Demand for Payment of Debt, were to be costs in the winding up.

Orders

Orders of the court

1. Reef Cove Resort Limited ACN 098 880 329 be wound up by this Court under the provisions of the Corporations Act 2001 (Cth).

2. Jonathan McLeod be appointed as liquidator to conduct the winding up.

3. The costs of the applicant of and incidental to this application (including issuing and serving the Creditor’s Demand for Payment of Debt) be costs in the winding up.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Re Reef Cove Resort Limited [2009] QSC 378
PARTIES:	HOLDING REDLICH LAWYERS ABN 15 364 527 724 (applicant) v REEF COVE RESORT LIMITED ACN 098 880 329 (respondent)
FILE NO/S:	BS 5969 of 2009
DIVISION:	Trial Division
PROCEEDING:	Originating Application
ORIGINATING COURT:	Supreme Court Brisbane
DELIVERED ON:	24 November 2009
DELIVERED AT:	Brisbane
HEARING DATE:	11 November 2009
JUDGE:	White J
ORDER:	1. *Reef Cove Resort Limited ACN 098 880 329 be wound up by this Court under the provisions of the Corporations Act* 2001 (Cth). 2. Jonathan McLeod be appointed as liquidator to conduct the winding up. 3. The costs of the applicant of and incidental to this application (including issuing and serving the Creditor’s Demand for Payment of Debt) be costs in the winding up.**
CATCHWORDS:	CORPORATIONS – WINDING UP – WINDING UP IN INSOLVENCY – STATUTORY DEMAND – OTHER CASES – where the applicant applied to wind up the respondent company on the ground of insolvency – where the respondent is a foreign company registered under Part 5B.2 Division 2 of the Corporations Act 2001 (Cth) – where the respondent purported to appoint administrators and purported to execute a Deed of Company Arrangement – whether the respondent is a company to which the provisions of the Corporations Act relating to external administration apply – whether the respondent ought to be wound up Corporations Act 2001 (Cth), s 9, s9(a), s 17(2), s 117(1), s 118, s 119, s 119A, s 436A, s 583, s 601CE(j) Peninsular Group Ltd v Kintsu Co Ltd (1998) 44 NSWLR 534, applied
COUNSEL:	G D Beacham for the applicant No appearance for the respondent
SOLICITORS:	Holding Redlich Lawyers for the applicant No appearance for the respondent