Stimpson, in the matter of Maiden Civil (P&E) Pty Ltd (in liq) v Gilbert Earthmoving Pty Ltd

[2015] FCA 794

FEDERAL COURT OF AUSTRALIA

Stimpson, in the matter of Maiden Civil (P&E) Pty Ltd (in liq) v Gilbert Earthmoving Pty Ltd [2015] FCA 794

Citation:	Stimpson, in the matter of Maiden Civil (P&E) Pty Ltd (in liq) v Gilbert Earthmoving Pty Ltd [2015] FCA 794
Parties:	DAVID MICHAEL STIMPSON AND TERRY JOHN ROSE AS JOINT AND SEVERAL LIQUIDATORS OF MAIDEN CIVIL (P&E) PTY LTD (IN LIQUIDATION) ACN 134 402 618 v GILBERT EARTHMOVING PTY LTD ACN 085 370 752
File number:	QUD 120 of 2015
Judge:	DOWSETT J
Date of judgment:	27 April 2015
Legislation:	Corporations Act 2001 (Cth) ss 588FA, 588FE, 588FGB(3) Federal Court Rules 2011 (Cth) r 5.23(2)(c)
Date of hearing:	27 April 2015
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	3
Solicitor for the Plaintiff:	Mr B Long of Smith Leonard Fahey Lawyers
Counsel for the Defendant:	The Defendant did not appear

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION		QUD 120 of 2015
IN THE MATTER OF MAIDEN CIVIL (P&E) PTY LTD (IN LIQUIDATION)
BETWEEN:	DAVID MICHAEL STIMPSON AND TERRY JOHN ROSE AS JOINT AND SEVERAL LIQUIDATORS OF MAIDEN CIVIL (P&E) PTY LTD (IN LIQUIDATION) ACN 134 402 618 Plaintiff
AND:	GILBERT EARTHMOVING PTY LTD ACN 085 370 752 Defendant

JUDGE:	DOWSETT J
DATE OF ORDER:	27 APRIL 2015
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.the defendant pay the plaintiff the amount of $180,000 together with interest calculated at 6.5% from 19 February 2015 until today; and

2.the defendant pay the plaintiff’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION		QUD 120 of 2015
IN THE MATTER OF MAIDEN CIVIL (P&E) PTY LTD (IN LIQUIDATION)
BETWEEN:	DAVID MICHAEL STIMPSON AND TERRY JOHN ROSE AS JOINT AND SEVERAL LIQUIDATORS OF MAIDEN CIVIL (P&E) PTY LTD (IN LIQUIDATION) ACN 134 402 618 Plaintiff
AND:	GILBERT EARTHMOVING PTY LTD ACN 085 370 752 Defendant

JUDGE:	DOWSETT J
DATE:	27 APRIL 2015
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This is an application pursuant to r 5.23(2)(c) of the Federal Court Rules 2011 (Cth) (the “Rules”) for judgment in default of appearance. The proceedings are pursuant to Div 2 of Pt 5-7B of the Corporations Act 2001 (Cth) (the “Act”), brought by the liquidators against a creditor of a company in liquidation. It is said that a payment of $180,000 by the company to the creditor is voidable as against the liquidator by virtue of ss 588FA and 588FE of the Act because it involved an “unfair preference”. Pursuant to the Rules, the plaintiff is entitled to judgment for the relief claimed in the statement of claim, to the extent to which the Court is satisfied that it is entitled.

2. The statement of claim in para 6(a) alleges that at the time of the payment, the defendant was aware of the financial difficulties which the company was experiencing. It may not have been necessary for the plaintiff to plead that matter, having regard to the provision of s 588FGB(3) of the Act. However the matter was pleaded and was particularized by reference to para 4, but there are no relevant particulars in para 4. The only relevance of this matter, for present purposes, is as to the burden of proof of the defendant’s knowledge of insolvency. It is not necessary that I resolve that question for present purposes. One of the liquidators, Mr Stimpson, has exhibited in his affidavit a letter to the defendant dated 19 February 2015, setting out the nature of the claim and, in particular, on p 7, setting out the circumstances in which it is said that the defendant was aware of the company’s financial position. The defendant issued a statutory demand on 17 May 2012, indicating that at that time it believed the company to be insolvent. I am willing to proceed on that basis. In those circumstances, there will be judgment for the plaintiff against the defendant in the amount of $180,000.

3. I further order that the defendant pay the plaintiff’s costs of the proceedings. 

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:       5 August 2015