Maamari v Ringwood & Ply Pty Ltd [2005] NSWSC 40

Reported Decision : 52 ACSR 370 (2005) 23 ACLC 314

New South Wales Supreme Court

CITATION : Maamari v Ringwood & Ply Pty Ltd [2005] NSWSC 40

HEARING DATE(S) : 07/02/05

JUDGMENT DATE : 7 February 2005

Equity Division JURISDICTION : Corporations List

JUDGMENT OF : Barrett J

DECISION : Order terminating winding up

CATCHWORDS : CORPORATIONS - winding up - whether Supreme Court of New South Wales may make an order terminating winding up where the winding up order was made by the Supreme Court of Queensland

LEGISLATION CITED : Corporations Act 2001 (Cth), ss.58AA, 459A, 482

Acton Engineering Pty Ltd v Campbell (1991) 31 FCR 1 Re FAI General Insurance Co Limited [2002] NSWSC 262 CASES CITED : Re Macks; Ex parte Saint (2000) 204 CLR 158 Sihota v Pacific Sands Motel Pty Ltd (2003) 56 NSWLR 721

Issa Maamari - Plaintiff PARTIES : Ringwood & Ply Pty Limited - First Defendant Arthur William Butterell - Second Defendant

FILE NUMBER(S) : SC 1139/05

Mr J.K. Chippindall - Plaintiff COUNSEL : Mr K.C. Gourlie, Solicitor - First Defendant Mr P.J. Cooper - Second Defendant

Jordan Djundja - Plaintiff SOLICITORS : Craddock Murray Neumann - First Defendant Gray & Perkins - Second Defendant

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION CORPORATIONS LIST

BARRETT J

MONDAY 7 FEBRUARY 2004

1139/05 - MAAMARI v RINGWOOD & PLY PTY LTD

JUDGMENT

1 On 30 November 2004, an order for the winding up in insolvency of Buildx Construction and Building Group Pty Ltd ("the company") was made by the Supreme Court of Queensland. The successful applicant for the winding up order was Ringwood & Ply Pty Ltd. It relied upon the presumption of insolvency arising under s.459C of the Corporations Act 2001 (Cth) in consequence of failure to satisfy a statutory demand. 2 Now before the Court is an application by Mr Maamari, the sole director and sole shareholder of the company, for an order under s.482 of the Corporations Act terminating the winding up. 3 Mr Chippindall of counsel, who appeared for the plaintiff, informed me that the present application had come before the Vacation Judge during the latter part of January and subsequently before the Duty Judge and that a threshold question had, on each occasion, been recognised but not addressed, namely, whether this court has power to make an order terminating a winding up which has resulted from the making of an order for winding up by another court having jurisdiction under the Corporations Act of the Commonwealth. 4 Mr Chippindall submitted that power does exist. Neither of the defendants to the present proceeding, being the liquidator and the creditor which made the successful application for winding up in the Supreme Court of Queensland, sought to argue otherwise. Reference was made to the fact that that creditor is based in Brisbane, whereas Mr Maamari and the company are based in Sydney. 5 I am satisfied that this court does have power to make the order sought. The relevant jurisdiction is wholly statutory. It derives from the provisions of the Corporations Act. Section 482(1) reads: "At any time during the winding up of a company, the Court may, on application, make an order staying the winding up either indefinitely or for a limited time or terminating the winding up on a day specified in the order."