In the matter of S & W Slade Pty Ltd (in liq) [2020] NSWSC 981

Supreme Court New South Wales

Medium Neutral Citation: In the matter of S & W Slade Pty Ltd (in liq) [2020] NSWSC 981 Hearing dates: 22 June 2020 Date of orders: 22 June 2020 Decision date: 22 June 2020 Jurisdiction: Equity - Corporations List Before: Black J Decision: Winding up terminated. Catchwords: CORPORATIONS – External administration – Winding up – Termination of winding up – Liquidator consents – Present creditors paid out – Sufficient funds to meet liquidators' costs Legislation Cited: - Corporations Act 2001 (Cth), s 482, 511; Sch 2, s 90-15; Pt 5.4B - Insolvency Law Reform Act 2016 (Cth) Cases Cited: - Re Glass Recycling Pty Ltd [2014] NSWSC 439 - Re Modena Imports Pty Ltd (in liq) [2010] NSWSC 739 - Re SNL Group Pty Ltd (in liq) [2010] NSWSC 797 - Re Warbler Pty Ltd (1982) 6 ACLR 526 Category: Principal judgment Parties: Stephen Garry Slade and Wendy Maree Slade (Plaintiffs) Benjamin Joshua Ismay and Scott Anthony Newton (Defendants) Representation: Counsel: W Chan (Plaintiffs)

Solicitors: Priest Legal (Plaintiffs) File Number(s): 2020/151589

Judgment – ex tempore (revised 24 june 2020)

Nature of the application 1. By Amended Originating Process filed on 15 June 2020 the Plaintiffs, Mr and Mrs Slade, apply to terminate the winding up of S & W Slade Pty Ltd (in liq) ("Company"). The application was originally made under s 482 of the Corporations Act 2001 (Cth) but is now pressed under s 90-15 of the Insolvency Practice Schedule (Corporations) ("IPSC"). Agreement has been reached between Mr and Mrs Slade and the liquidators of the Company as to arrangements that will bring about the payment of the liquidators' fees and the amounts due to remaining creditors. 2. The application raises a preliminary question as to whether, following the commencement of the Insolvency Law Reform Act 2016 (Cth), an order for the termination of a creditor's voluntary winding up should be made under s 482 of the Corporations Act or s 90-15 of the IPSC although it is not necessary to determine that question for any practical purpose. I note that s 482 of the Corporations Act appears in Part 5.4B of the Act, under the heading "Winding up in insolvency or by the Court", and in Division 3, headed "General powers of the Court". That section has, in several previous cases, been relied upon in order to terminate the winding up of a company in insolvency. However, in Ford's Principles of Corporations Law [27.129], Dr Austin and Professor Ramsay note that s 482 does not apply of its own force to a company that was wound up voluntarily, although s 511 of the Act previously permitted the Court to exercise the powers in a voluntary winding up that it could exercise in a Court ordered winding up. That section was repealed by the Insolvency Law Reform Act, and a broad power for the Court to make orders in an external administration was introduced in s 90-15 of the IPSC. 3. It does not seem to me to be necessary to determine whether that section is available in its terms because, as Mr Chan who appears for the Plaintiffs recognises, s 90-15 of the IPSC permits the Court to make such order as it thinks appropriate in relation to the external administration of a company, although the orders referred to in that section do not specifically include the termination of a winding-up. Where either s 482 of the Act or s 90-15 of the IPSC would be available, it is not necessary to determine which of them applies here.