CENTURIAN CONSTRUCTIONS PTY LIMITED v BECA DEVELOPMENTS PTY LIMITED [1998] NSWCA 55

CENTURIAN CONSTRUCTIONS PTY LIMITED v_ BECA DEVELOPMENTS PTY LIMITED

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MASON P 6 February 1998

[1998] NSWCA 55

Mason P. This matter was first before me on 4 February. At that stage Mr Newman appeared for the claimant, Centurian Constructions Pty Limited (in liquidation), and Mr Durston appeared for the opponent, BECA Developments Pty Limited (in liquidation). Young J had ordered that Centurian be wound up on 2 February 1998. That order was made in proceedings commenced by the opponent. The central issue in those proceedings was whether the claimant had established that it had cross-claims which exceeded in value the sum claimed by the opponent that was not in dispute. That claim had been made by way of a statutory demand.

Young J had heard contested proceedings and handed down a reserved judgment on 21 August 1997. He found that the cross-claim was good in part, but not good enough in total amount to exceed the admitted indebtedness of Centurian to BECA. The matter was, however, stood overwithout a winding-up order being made.

In September Centurian went into voluntary administration. In October Centurian entered into a deed of company arrangement. However, that deed of company arrangement was terminated at a meeting of creditors of Centurian held on 23 January this year. Last minute attempts to persuade Young J not to carry his reasons into a winding-up order were unsuccessful and as I have already indicated the winding-up order was made on 2 February. A liquidator has been appointed.

The original process in the Court of Appeal was a notice of appeal challenging Young J's judgment of 21 August 1997. There are real problems with that because that judgment was not a final judgment and, apart from an order for an adjournment, did not result in any order.