Kennedy Civil Contracting Pty Ltd (Administrators Appointed) v Richard Crookes Construction Pty Ltd; In the matter of Kennedy Civil Contracting Pty Ltd [2023] NSWSC 99

Supreme Court New South Wales

Medium Neutral Citation: Kennedy Civil Contracting Pty Ltd (Administrators Appointed) v Richard Crookes Construction Pty Ltd; In the matter of Kennedy Civil Contracting Pty Ltd [2023] NSWSC 99 Hearing dates: 2 February 2023 Decision date: 17 February 2023 Jurisdiction: Equity - Technology and Construction List Before: Ball J Decision: (1) Direct that within 14 days of the date of this judgment the parties bring in short minutes of order to give effect to this judgment, any agreement in relation to a stay and, if costs can be agreed, the parties' agreement in relation to costs; (2) If the parties cannot agree on the form of the short minutes of order dealing with the matters referred to in (1), direct that each party within 21 days of the date of the judgment provide to my Associate a form of orders for which they contend and submissions not exceeding 5 pages in support of those orders; (3) Direct that any remaining issues between the parties be decided on the papers. Catchwords: CIVIL PROCEDURE — Summary disposal — Judgment for plaintiff — Abuse of process — Claims made under the Building and Construction Industry Security of Payment Act 1999 (NSW) — Where claimant is hopelessly insolvent — Where claimant executed deed of company arrangement to avoid provisions which apply to a claimant in liquidation CORPORATIONS — Voluntary administration — Deed of company arrangement — Termination for some other reason under the Corporations Act 2001 (Cth), s 445D(1)(g) — Whether deed of company arrangement has a proper purpose — Where deed of company arrangement was executed to avoid separate legislation which apply to a corporation in liquidation Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) Corporations Act 2001 (Cth) Cases Cited: Blacktown City Council v Macarthur Telecommunications Pty Ltd [2003] NSWSC 883; (2003) 47 ASCR 391 Dualcorp Pty Ltd v Remo Constructions Pty Ltd [2009] NSWCA 69 Grosvenor Constructions (NSW) Pty Limited (in administration) v Musico & Ors [2004] NSWSC 344 Mighty River International Ltd v Hughes and Bredenkamp (as deed administrator of Mesa Minerals Limited) (2018) 265 CLR 480; [2018] HCA 38 Re Sales Express Pty Ltd (Administrators Appointed) [2014] NSWSC 460 Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 The Owners of the Ship "Shin Kobe Maru" v Empire Shipping Company Inc (1994) 181 CLR 404 University of Sydney v Cadence Australia Pty Limited & Anor [2009] NSWSC 635 Urban Traders v Paul Michael [2009] NSWSC 1072 Texts Cited: Australian Law Reform Commission, General Insolvency Inquiry, Volume 1 (Report No 45, December 1988) New South Wales Legislative Council, Parliamentary Debates (Hansard), 24 October 2018 Review of Security of Payment Laws (Commonwealth, Department of Jobs and Small Business) Category: Principal judgment Parties: Kennedy Civil Contracting Pty Ltd (Administrators Appointed) (Plaintiff in 2022/288266 and Defendant in 2022/353631) Richard Crookes Constructions Pty Limited (Defendant in 2022/288266 and Plaintiff in 2022/353631) Representation: Counsel: