Re Statewide Developments Pty Ltd - [2011] NSWSC 1537

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: In the matter of Statewide Developments Pty Limited [2011] NSWSC 1537
Hearing dates: 3 November 2011
Decision date: 14 December 2011
Jurisdiction: Equity Division - Corporations List
Before: Barrett J
Decision:
1. Order that Azure 10-16 Marquet Street Rhodes Pty Ltd ACN 103 834 797 be substituted as applicant in the application for winding up in the originating process filed herein on 5 May 2011.
2. Order that Statewide Developments Pty Ltd ACN 080 404 842 be wound up in insolvency.
3. Order that Peter Paul Krejci of Level 13, 1 Castlereagh Street, Sydney, an official liquidator, be appointed liquidator of the said Statewide Developments Pty Ltd.
4. Order that the said Statewide Developments Pty Ltd pay the costs of the said Azure 10-16 Marquet Street Rhodes Pty Ltd of the interlocutory process filed on 19 July 2011 and the winding up proceedings.

Catchwords: CORPORATIONS - winding up - application for substitution as plaintiff in proceedings for winding up in insolvency - whether applicant has proved status as creditor - substitution ordered - CORPORATIONS - winding up - application for winding up in insolvency - presumption of insolvency arises from non-compliance with statutory demand - whether defendant has discharged onus to prove solvency - need for "fullest and best" evidence - onus not discharged - winding up ordered
Legislation Cited: Corporations Act 2001 (Cth), ss 95A, 459C(2)(a), 459P, 459R, 465B
Cases Cited: Ace Contractors & Staff Pty ltd v Westgarth Development Pty Ltd [1999] FCA 728
CVC Investments Pty Ltd v P&T Aviation Pty Ltd (1989) 18 NSWLR 295
Dasreef Pty Ltd v Hawchat [2011] HCA 21; (2011) 85 ALJR 694
Deputy Commissioner of Taxation v Sydney Concrete Steel Fixing Pty Ltd [1999] NSWSC 494; (1999) 17 ACLC 972
Expile Pty Ltd v Jabb's Excavations Pty Ltd [2003] NSWCA 163; (2003) 45 ACSR 711
Tokich Holdings Pty Ltd v Sheraton Constructions (NSW) Pty Ltd [2004] NSWSC 527; (2004) 185 FLR 130
Category: Principal judgment
Parties: Damian Paul Higgins - Plaintiff
Statewide Developments Pty Limited - Defendant/Respondent
Azure 10-16 Marquet Street Rhodes Pty Ltd - Applicant
Representation: Mr D K L Raphael - Applicant
Mr M J Cohen/Mr J J Hyde - Defendant/Respondent
Saba El-Hanania Lawyers - Applicant
Mills Oakley Lawyers - Defendant/Respondent

File Number(s): 2011/00148654

Judgment

On 6 May 2011, Damian Paul Higgins filed an originating process by which he applied under s 459P of the Corporations Act 2001 (Cth) for an order that the defendant, Statewide Developments Pty Ltd ("Statewide"), be wound up in insolvency and an order appointing a liquidator. Mr Higgins relied on a presumption of insolvency arising under s 459C(2)(a) from Statewide's failure to comply with a statutory demand served on it by him.

Mr Higgins no longer presses the winding up application.

On 3 November 2011 I heard an application made by Azure 10-16 Marquet Street Pty Ltd ("Azure") under s 465B of the Corporations Act for an order substituting it…

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 Statewide Developments Pty Ltd

Details

AGLC: Re Statewide Developments Pty Ltd [2011] NSWSC 1537
Case: [2011] NSWSC 1537
Decision Date: 14 December 2011

CaseChat Overview and Summary

The case of Re Statewide Developments Pty Ltd involved an application by Statewide Developments Pty Ltd for substitution as a plaintiff in winding up proceedings. The application was made against the company's former director, Statewide Developments Pty Ltd. The dispute centred around the company's insolvency status and whether the applicant had proved their status as a creditor. The matter was heard in the Federal Circuit Court of Australia.

The primary legal issues addressed by the court were whether the applicant had successfully proven their creditor status, and whether the company had discharged the onus to prove solvency. The court examined the evidence provided by the applicant to determine their creditor status and considered the evidence presented by the company in relation to their solvency. The court also noted the importance of providing the "fullest and best" evidence in such proceedings.

The court found that the applicant had successfully proven their status as a creditor and granted the application for substitution as a plaintiff. Regarding the solvency of the company, the court held that the presumption of insolvency arose from the company's non-compliance with a statutory demand. The court further determined that the company had not discharged the onus to prove solvency, as it had not provided the "fullest and best" evidence. As a result, the court ordered the winding up of the company.

Orders