In the matter of Shire Lind Developments (NSW) Pty Ltd (in liq) [2024] NSWSC 1454

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Shire Lind Developments (NSW) Pty Ltd (in liq) [2024] NSWSC 1454 Hearing dates: 22-25 October 2024 Date of orders: 19 November 2024 Decision date: 19 November 2024 Jurisdiction: Equity - Corporations List Before: Nixon J Decision: (1) The parties are to bring in short minutes of order, by 5pm on 3 December 2024, to give effect to these reasons for judgment, including orders that deal with interest and costs, insofar as those matters can be agreed; and (2) If orders to give effect to these reasons for judgment cannot be agreed, the parties are to exchange, by 5pm on 3 December 2024, the form of orders which each party proposes and submissions (limited to 5 pages) on those orders, indicating whether, and if so why, an oral hearing is requested to deal with the matters in dispute. Catchwords: CORPORATIONS – winding up – insolvent trading – where company was a special purpose vehicle incorporated for management of a property development – where company entered into construction contract with builder and was unable to pay progress claims – where common ground that company was insolvent before it went into administration, but dispute about date by which the company became insolvent – whether company incurred debt in respect of each progress claim – whether builder agreed to extend payment terms – whether reasonable grounds to suspect insolvency – quantum of loss or damage suffered in relation to debts because of insolvency – whether payments to related party were unfair preference payments Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW), s 16 Civil Procedure Act 2005 (NSW), s 100 Corporations Act 2001 (Cth), ss 9, 95A, 286, 588E, 588FA, 588FF, 588G, 588H, 588M, 588V, 588W, 1318 Cases Cited: Anchorage Capital Master Offshore Ltd v Sparkes (2023) 111 NSWLR 304; [2023] NSWCA 88 Australian Securities and Investments Commission v Edwards (2005) 220 ALR 148; [2005] NSWSC 831 Australian Securities and Investments Commission v Plymin (No 1) [2003] VSC 123 Capital Finance Australia Ltd v Tolcher (2007) 164 FCR 83; [2007] FCAFC 185 Chan v First Strategic Development Corporation Ltd (in liq) [2015] QCA 28 Clifton (Liquidator) v Kerry J Investment Pty Ltd trading as Clenergy [2020] FCAFC 5 Edenden v Bignell [2007] NSWSC 1122 Edwards v Australian Securities and Investments Commission (2009) 264 ALR 723; [2009] NSWCA 424 Hall v Poolman [2007] NSWSC 1330 Hawkins v Bank of China (1992) 26 NSWLR 562 In the matter of ZH International Pty Ltd (in liq) [2022] NSWSC 2 Lords Property Group Pty Ltd v Shire Lind Developments (NSW) Pty Ltd [2019] NSWSC 1818 McLellan, in the matter of the Stake Man Pty Ltd v Carroll (2009) 76 ACSR 67; [2009] FCA 1415 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; [1992] HCA 66 Perrine v Carrello [2017] WASCA 151 Powell v Fryer [2001] SASC 59 Quick v Stoland Pty Ltd [1998] FCA 1200 Quin (in his capacity as liquidator of Roderick Group Pty Ltd (in liq)) v Vlahos (2021) 64 VR 319; [2021] VSCA 205 Re Custom Bus Australia Pty Ltd (in liq) [2021] NSWSC 1036 Re Salfa Pty Ltd (in liq) [2014] NSWSC 1493 Smith v Bone (No 2) (2015) 233 FCR 568; [2015] FCA 389 Re Swan Services Pty Ltd (in liq) [2016] NSWSC 1724 Southern Cross Interiors Pty Ltd (in liq) v Deputy Commission of Taxation (2001) 52 NSWLR 213; [2001] NSWSC 621 Spain v Union Steamship Co of New Zealand Ltd (1923) 32 CLR 138 Tourprint International Pty Ltd (in liq) v Bott (1999) 32 ACSR 201; [1999] NSWSC 581 Treloar Constructions Pty Ltd v McMillan [2017] NSWCA 72 Visbord v Federal Commissioner of Taxation (1943) 68 CLR 354; [1943] HCA 4 Woodgate as liquidator of Marketing Results Pty Ltd v Network Associates International BV [2007] NSWSC 1260 Woodgate v Davis (2002) 55 NSWLR 222; [2002] NSWSC 616 Texts Cited: M Murray and J Harris, Keay's Insolvency, Personal and Corporate Law and Practice 10th edition (2018, Thomson Reuters) Category: Principal judgment Parties: Jason Lloyd Porter in his capacity as liquidator of Shire Lind Developments (NSW) Pty Ltd (in liquidation) (First Plaintiff) Shire Lind Developments (NSW) Pty Ltd (in liquidation) (Second Plaintiff) Peter Geoffrey Gribble (First Defendant) Quantum Management Pty Ltd (Second Defendant) Quantum Development Management Pty Ltd (Third Defendant) Representation: Counsel: D Woods w J Abednego (Plaintiffs) A Cameron (Defendants)