Australian Beverage Distributors Pty Ltd v The Redrock Co Pty Ltd [2007] NSWSC 966

Reported Decision : 213 FLR 450

New South Wales Supreme Court

CITATION : Australian Beverage Distributors Pty Ltd v The Redrock Co Pty Ltd [2007] NSWSC 966

HEARING DATE(S) : 28 June 2007

JUDGMENT DATE : 31 August 2007

JURISDICTION : Equity Division Corporations List

JUDGMENT OF : White J

DECISION : 1. Order that the defendant's interlocutory process filed on 25 May 2007 be dismissed; 2. order that the costs of that interlocutory process be the plaintiff's costs in the proceedings; 3. The exhibits may be returned after 28 days.

CATCHWORDS : CORPORATIONS – Winding up in insolvency – Application for stay or summary dismissal of winding-up application – Whether pursuit of winding-up proceedings constitutes abuse of process – Whether petitioner has standing to bring winding-up application pursuant to assignment of debt – Whether standing as creditor to bring winding-up application lost by debtor's tender of moneys and debtor's payment into court of amount due – Continued willingness to tender payment and payment into court does not eliminate debt – Unreasonable refusal by creditor to accept payment to be weighed in court's exercise of discretion to make winding-up order – Held that inappropriate in application for summary dismissal to determine whether winding-up application should be dismissed on ground of proffered tender and payment into court. - PRACTICE AND PROCEDURE – Abuse of process – No abuse of process where proceedings brought for purpose of pursuing proceedings to conclusion to obtain benefit or entitlement the law provides upon successful outcome – Where predominant purpose of bringing winding-up proceedings is to cause company to cease carrying on business and to obtain a tactical advantage in another dispute from the making of a winding-up order – Held that pursuit of winding-up proceedings does not constitute abuse of process.