In the matter of MK Floors (NSW) Pty Ltd (in liq) and MK Floors (QLD) Pty Ltd (in liq) [2020] NSWSC 1718

Supreme Court New South Wales

Medium Neutral Citation: In the matter of MK Floors (NSW) Pty Ltd (in liq) and MK Floors (QLD) Pty Ltd (in liq) [2020] NSWSC 1718 Hearing dates: 18 November 2020 Date of orders: 2 December 2020 Decision date: 02 December 2020 Jurisdiction: Equity - Corporations List Before: Gleeson J Decision: Separate question answered: see [44]. Costs of the separate question reserved. Catchwords: CORPORATIONS – winding up – where two companies in liquidation – where liquidator seeks to recover alleged unfair preferences – Corporations Act 2001 (Cth) s 588FF, s 588FA, s 588FC and s 588FE –determination of separate question of insolvency – whether companies insolvent during relation-back period – Corporations Act 2001 (Cth) s 95A Legislation Cited: Corporations Act 2001 (Cth), ss 95A, 588E(8), 588FA, 588FC, 588FE, 588FF Uniform Civil Procedure Rules 2005 (NSW), r 28.2 Cases Cited: Australian Securities and Investments Commission v Plymin and Ors (2003) 46 ACSR 126; [2003] VSC 123 Dean-Willcocks v Commissioner of Taxation [2003] NSWSC 355; (2003) 45 ACSR 298 Lewis (as liq of Doran Constructions Pty Ltd (in Liq)) v Doran and Others (2005) 219 ALR 555; [2005] NSWCA 243 Shaw v KPR Recruitment Australia Pty Ltd [2017] NSWSC 539 Southern Cross Interiors Pty Ltd (in liq) v Deputy Commissioner of Taxation (2001) 53 NSWLR 213; [2001] NSWSC 621 Sutherland & Another (as joint liquidators of Australian Coal Technology) v Hanson Construction Materials Pty Ltd and Others [2009] NSWSC 232; (2009) 254 ALR 650 Welcome Homes Real Estate Pty Limited v Ziade Investments Pty Limited [2007] NSWCA 167 Category: Principal judgment Parties: Steve Naidenov in his capacity as liquidator of MK NSW Pty Ltd (in liq) and MK QLD Pty Ltd (in liq) (Plaintiff) Commissioner of Taxation (First defendant) Airlay International Pty Ltd (Second defendant) Hanes Innerwear Australia Pty Ltd (Third defendant) Forbo Floorcoverings Pty Ltd (Fourth defendant) The Victoria Carpet Company Pty Ltd (Fifth defendant) Quest Carpet Manufacturers Pty Ltd (in liq) (Sixth defendant) Brintons Pty Ltd (Seventh defendant) Gibbon Group Pty Ltd (Eighth defendant) Interface Australia Pty Ltd (Ninth defendant) Karndean International Pty Ltd (Tenth defendant) MJ Sturgess & Co Pty Ltd (Eleventh defendant) Turfmaster Carpets Pty Ltd (Twelfth defendant) Cavalier Bremworth Pty Ltd (Thirteenth defendant) Norman Ellison Carpets Pty Ltd (Fourteenth defendant) Cavalier Commercial Pty Ltd (Fifteenth defendant) Representation: Counsel: M Dawson / J Nathan (Plaintiffs) M Tomasello (Sol) (First defendant)