Bidald Consulting v Miles Special Builders [2005] NSWSC 171

New South Wales Supreme Court

CITATION : Bidald Consulting v Miles Special Builders [2005] NSWSC 171

HEARING DATE(S) : 01/03/05, 02/03/05

JUDGMENT DATE : 2 March 2005

JUDGMENT OF : Gzell J

DECISION : Originating process to wind up defendant adjourned. Plaintiff's costs reserved. Orders pursuant to Corporations Act 2001 (Cth), s 447A that s 444A operate to require instrument to specify that plaintiff's costs be paid by administratiors in priority to all other debts and that s 439B and s 439C operate to prevent a resolution for winding up being put to a meeting of creditors unless plaintiff given seven days written notice. Liberty to plaintiff to apply on 24 hours' notice.

CATCHWORDS : CORPORATIONS - Voluntary administration - Plaintiff seeks winding up of defendant - Administrators appointed - Solvency assessment shows defendant insolvent but likely to return to liquidity in the short term - Criticisms of figures - Whether court should be satisfied that in interests of company's creditors for defendant to continue under administration - No principles involved - Costs order in favour of plaintiff not provable in subsequent creditors' voluntary winding up - Whether orders should be made under the Corporations Act 2001 (Cth), s 447A specifying priority of payment of costs under deed of company arrangement and notice of intention to enter creditors' voluntary winding up

LEGISLATION CITED : Corporations Act 2001 (Cth)

McDonald v Deputy Commissioner of Taxation [2005] NSWSC 2 CASES CITED : Coventry Auto Parts Pty Ltd v Tony Michael Mechanical Pty Ltd (under administration) [2003] QSC 141

Bidald Consulting Pty Ltd t/as Forstaff - Plaintiff PARTIES : Miles Special Buikders Pty Ltd ("Voluntary Administrators Appointed") - Defendant