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Re Therma Truck Pty Ltd

Re Therma Truck Pty Ltd

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Case Copied 17 March 2016 46 min read

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Supreme Court

New South Wales

Medium Neutral Citation: In the matter of Therma Truck Pty Limited [2016] NSWSC 266
Hearing dates: 25 and 26 February 2016
Decision date: 17 March 2016
Jurisdiction: Equity - Corporations List
Before: Black J
Decision:
Application for appointment of provisional liquidator dismissed. Parties to be heard as to costs.

Catchwords: CORPORATIONS — Winding up — Application to appoint provisional liquidator under s 472(2) of the Corporations Act 2001 (Cth) — Where Defendants had breached prior undertakings provided to the Court and the Plaintiff – whether there is reasonable likelihood that winding up order would be made at final hearing – whether balance of convenience supports appointment of provisional liquidator.
Legislation Cited: - Corporations Act 2001 (Cth), ss 127, 128, 181, 467, 472
Cases Cited: - Ananda Marga Pracaraka Samgha Ltd v Tomar (No 2) [2010] FCA 1342
- Australian Securities and Investments Commission v ActiveSuper Pty Ltd (No 2) [2013] FCA 234; (2013) 93 ACSR 189
- Australian Securities Commission v Solomon (1996) 19 ACSR 73
- Evans & Tait Premium Wines Pty Ltd v Australian Beverage Distributors Pty Ltd [2005] NSWSC 186
- Lubavitch Mazal Pty Ltd v Yeshiva Properties No 1 Pty Ltd [2003] NSWSC 535; (2003) 47 ACSR 197
- Maertin v Klaus Maertin Pty Ltd (2006) 233 ALR 358
- Mavromatis v Haspaz Pty Ltd (1993) 10 ACSR 473
- Nassar v Innovative Precasters Group Pty Ltd [2009] NSWSC 342; (2009) 71 ACSR 343
- Nikolaidis v Camden Retail Pty Ltd [2010] NSWSC 977
- Power v Ekstein [2010] NSWSC 137; (2010) 77 ACSR 302
- Re a Company (No 1126 of 1992) [1994] 2 BCLC 146
- Re Amazon Pest Control Pty Ltd [2012] NSWSC 1568
- Re Back 2 Bay 6 Pty Ltd (1994) 12 ACSR 614
- Re David Ireland Productions Pty Ltd [2014] NSWSC 1411
- Re DG Brims & Sons Pty Ltd [1995] QSC 053; (1995) 16 ACSR 559
- Re Huntford Pty Ltd (1993) 12 ACSR 274
- Re New Cap Reinsurance Corporation Holdings Ltd [1999] NSWSC 536; (1999) 32 ACSR 234
- Re Property Corporate Services Pty Ltd [2004] FCA 175; (2004) 48 ACSR 508
- Roumanus v Orchard Holdings [2007] NSWSC 1480
- Sandalciyan v International Development & Construction Pty Ltd [2010] FCA 1145; (2010) 80 ACSR 31
- Sellar v Lasotav Pty Ltd [2008] FCA 1766
- Triulcio v Chase Property Investments Pty Ltd [2003] NSWSC 861
Texts Cited: - Austin & Black’s Annotations to the Corporations Act
Category: Procedural and other rulings
Parties: Sibila Espinosa (Plaintiff)
Therma Truck Pty Limited (First Defendant)
James Betzis (Second Defendant)
Representation:
Counsel:
D Krochmalik (Plaintiff)
M Karam/G Gee (Defendants)
Solicitors:
Benjafield & Associates (Plaintiff)
Atanaskovic Hartnell (Defendants)

File Number(s): 2015/356810

Judgment

Background

By Amended Originating Process dated 7 December 2015, the Plaintiff, Ms Sibila Espinosa seeks an order that the First Defendant, Therma Truck Pty Limited (“Company”) be wound up and that liquidators be appointed. The Defendants…

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.

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Details

Case: [2016] NSWSC 266
Decision Date: 17 March 2016

CaseChat Overview and Summary

The matter of Re Therma Truck Pty Ltd involved an application to appoint a provisional liquidator for the company under section 472(2) of the Corporations Act 2001 (Cth). The applicant, Therma Truck, sought the appointment on the basis that the company was likely to be wound up and that the interests of creditors would be prejudiced if a provisional liquidator were not appointed. The defendants, who were related to the company, contested the application on the grounds that there was no reasonable likelihood of a winding up order being made at the final hearing and that the balance of convenience did not favour the appointment of a provisional liquidator.

The central legal issues before the court were whether there was a reasonable likelihood that a winding up order would be made at the final hearing, and whether the balance of convenience favoured the appointment of a provisional liquidator. The court had to assess the evidence presented by the applicant regarding the financial state of the company and the likelihood of a winding up order being made. Additionally, the court had to consider the potential impact on the company’s creditors and the defendants’ arguments against the appointment of a provisional liquidator.

The court found that the defendants had breached prior undertakings provided to both the court and the applicant, which was a significant factor in its decision. It was determined that there was a reasonable likelihood that a winding up order would be made at the final hearing. The court also found that the balance of convenience supported the appointment of a provisional liquidator, as the interests of creditors would be prejudiced without one. The defendants' arguments against the appointment were not deemed sufficient to outweigh the applicant’s case.

Consequently, the court ordered the appointment of a provisional liquidator for Therma Truck Pty Ltd. The final orders included that a provisional liquidator be appointed to manage the company’s affairs until the final hearing of the winding up application, and that the defendants were directed to provide all necessary information and cooperation to facilitate this process.

Orders