Evans & Tate Premium Wines Pty Ltd v Australian Beverage Distributors Pty Ltd [2005] NSWSC 186

New South Wales Supreme Court

CITATION : Evans & Tate Premium Wines Pty Ltd v Australian Beverage Distributors Pty Ltd [2005] NSWSC 186

HEARING DATE(S) : 4 and 7 March, 2005

JUDGMENT DATE : 15 March 2005

JURISDICTION : Equity Division

JUDGMENT OF : Palmer J

DECISION : Originating Process dismissed.

CATCHWORDS : CORPORATIONS - WINDING UP - SOLVENCY - defendant failed to satisfy statutory demand - whether defendant discharged onus of proving solvency - standard of proof. - WINDING UP - JUST AND EQUITABLE GROUND - Whether plaintiff may rely upon just and equitable ground at hearing when reliance on that ground and the facts and circumstances said to support it have not previously been notified to the defendant.

- Conveyancing Act 1919 (NSW) - s.12 LEGISLATION CITED : - Corporations Act 2001 (Cth) - s.95A, s.459C, s.459H, s.459P, s.459R, s.461

- Expile Pty Ltd v Jabb's Excavations Pty Ltd (2003) 45 ACSR 711 CASES CITED : - Lewis v Doran (2004) 50 ACSR 175 - Southern Cross Interiors Pty Ltd (in liq) v Deputy Commissioner of Taxation (2001) 53 NSWLR 213

Evans & Tate Premium Wines Pty Ltd - Plaintiff PARTIES : Australian Beverage Distributors Pty Ltd - Defendant

FILE NUMBER(S) : SC 6444/04

J.T. Johnson - Plaintiff COUNSEL : C.R.C. Newlinds SC, D.A. Allen - Defendant

Sally Nash & Co - Plaintiff SOLICITORS : Brooks & Co - Defendant

LOWER COURT JURISDICTION :

Introduction

1 On 26 February 2001, the Plaintiff served a Statutory Demand on the Defendant claiming a debt due for goods sold and delivered of $243,312.21. The Defendant commenced proceedings to set aside the Statutory Demand, claiming that it had offsetting claims against the Plaintiff which exceeded the amount due to the Plaintiff. 2 Master Macready held that there was a genuine dispute between the parties as to $84,261 and reduced the amount of the Statutory Demand to $158,051.21 pursuant to s.459H(4) Corporations Act 2001 (Cth). The Defendant appealed unsuccessfully to the Court of Appeal from the Master's judgment. 3 The Plaintiff filed an Originating Process seeking the winding up of the Defendant. After some delay and a number of extensions of time under s.459R(2), the Originating Process has now come on for hearing. The Plaintiff seeks to have the Defendant wound up in insolvency pursuant to s.459P for failure to comply with the Statutory Demand. The Originating Process also stated that the application is made "under s.461 of the Corporations Act" . No further information was given in the Originating Process as to which of the nine possible grounds provided by s.461(1) was to be relied upon. Whether just and equitable ground may be relied upon