New South Wales Supreme Court CITATION : Novy v Noved Pty Ltd [2004] NSWSC 1267 HEARING DATE(S) : Wednesday 29 December 2004 JUDGMENT DATE : 29 December 2004 JUDGMENT OF : Simpson J DECISION : (i) John Frederick Lord appointed provisional liquidator of the 1st Defendant; (ii) costs of this application costs in the provisional liquidation. CATCHWORDS : interlocutory process - provisional liquidation LEGISLATION CITED : Corporations Act 2001 (Cth), s461(k) Michael Novy - Plaintiff/Applicant PARTIES : Noved Pty Ltd - Ist Defendant Brett Raymond Ednie - 2nd Defendant FILE NUMBER(S) : SC 6917/04 COUNSEL : A Lo Surdo - Plaintiff/Applicant SOLICITORS : Norton White Lawyers - Plaintiff/Applicant 2nd Defendant - in person IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION SIMPSON J Wednesday 29 December 2004 6917/04 Michael Novy v Noved Pty Ltd & Anor JUDGMENT 1 SIMPSON J: By originating process filed 22 December 2004 the applicant, Dr Michael Novy, sought an order that the first defendant Noved Pty Ltd be wound up pursuant to s461 1(k) of the Corporations Act. 2 By interlocutory process filed the same day the applicant sought the appointment of a provisional liquidator of the first respondent. 3 Notice of each application was served upon the company and Mr Brett Raymond Ednie, identified as a respondent in each application and who the evidence shows was, with the applicant, a director of the company. 4 Evidence in affidavit form was tendered showing conclusively in my opinion that the relationship between the two directors of the company has broken down to a point where whatever business is conducted by the company can no longer be conducted by it. 5 When the interlocutory application came before me Mr Ednie appeared unrepresented. However, he gave evidence and in doing do he accepted the fundamental proposition that the company can no longer operate. The difficulty is, on the one hand, on behalf of the applicant it is contended the company operates a business of conducting a kiosk which is in its busy period at the moment and that there are grave concerns about the financial stability and the financial conduct of that business. Mr Ednie's evidence was to the effect that the business was not the business of the company. In my opinion that is not a dispute that is raised for resolution in the present proceedings although it is obviously of serious concern in the inevitable winding up of the company. 6 Mr Ednie accepts the company will have to be wound up and I consider that to be a very realistic concession. 7 Accordingly, I make the following orders: (i) That John Frederick Lord be appointed the provisional liquidator of the first defendant. (ii) The costs of this application be costs in the provisional liquidation. 8 I order that the orders I have made be entered forthwith, and I stand the originating process over to the Equity Registrar's list on 25 February 2005. ********** Last Modified: 01/10/2005 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.