SGB Raffia v Gammacon (No.2) [2007] NSWSC 1510

New South Wales Supreme Court

CITATION : SGB Raffia v Gammacon (No.2) [2007] NSWSC 1510

HEARING DATE(S) : 28 November 2007 JUDGMENT OF : McDougall J at 1

EX TEMPORE JUDGMENT DATE : 28 November 2007

DECISION : See paragraph [26] of judgment.

CATCHWORDS : CORPORATIONS – winding up – whether hearing should be adjourned pursuant to s440A(l), Corporations Act 2001 – whether order for winding up should be made.

LEGISLATION CITED : Corporations Act 2001

CASES CITED : Creevey v Deputy Commissioner of Taxation (1996) 19 ACSR 456 Deputy Commissioner of Taxation v Bradley Keeling Management Pty Ltd (2003) 44 ACSR 377

PARTIES : SGB Raffia Pty Limited (ACN 106 939 262) (Plaintiff) Gammacon Pty Limited (ACN 104 275 523) (Defendant)

FILE NUMBER(S) : SC 5064/07

COUNSEL : C D Wood (Plaintiff) R M Foreman (Defendant)

SOLICITORS : Hugh & Associates Lawyers (Plaintiff) Minter Ellison Lawyers (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

McDOUGALL J

28 November 2007 (ex tempore – revised 5 December 2007)

5064/07 SGB Raffia Pty Limited v Gammacon Pty Limited JUDGMENT 1 HIS HONOUR: The plaintiff (SGB) seeks the winding up of the defendant (Gammacon) in insolvency. There is no doubt that Gammacon is insolvent. It has failed to comply with a statutory demand and the evidence for SGB is that the amount demanded is still owing. 2 The real question before the Court is not so much whether Gammacon should be wound up today but whether the application for winding up should be adjourned. That application - to adjourn - is made pursuant to s 440A(2) of the Corporations Act 2001. Section 440A(2) directs the Court: "To adjourn the hearing of an application for an order to wind up a company if the company is under administration and the court is satisfied that it is in the interests of the company's creditors for the company to continue under administration rather than be wound up".