Baird v CB Constructions (NSW) Pty Ltd & anor [2009] NSWSC 476

New South Wales Supreme Court

CITATION : Baird v CB Constructions (NSW) Pty Ltd & anor [2009] NSWSC 476

HEARING DATE(S) : 4 May 2009 JURISDICTION : Equity Division Corporations List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 4 May 2009

DECISION : Provisional liquidator appointed

CATCHWORDS : CORPORATIONS - Appointment of provisional liquidator – where dispute as to who should be appointed

LEGISLATION CITED : Corporations Act s 472(2)

CATEGORY : Procedural and other rulings

CASES CITED : Barclay v Barclay NSWSC, Kearney J, 22 December 1978, unreported Parkinson v Morkaya [2008] NSWSC 1183

John Baird (plaintiff) PARTIES : CB Constructions (NSW) Pty Ltd (first defendant) Abhay Bir Chandra (second defendant)

FILE NUMBER(S) : SC 2509/09

COUNSEL : N J Sullivan (solicitor) (plaintiff) A Kumar (defendants)

SOLICITORS : Champion Legal (plaintiff) Gateway Legal Service (defendants)

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

BRERETON J

Monday 4 May 2009

2509/09 John Baird v CB Constructions (NSW) Pty Limited and Anor JUDGMENT (ex tempore) 1 HIS HONOUR: The plaintiff John Baird, one of the two shareholders and directors in the first defendant company C B Constructions (NSW) Pty Limited has filed an originating process on 22 April 2009 returnable on 25 May 2009 for an order that the company be wound up. The second defendant Abhay Bir Chandra is the other director and shareholder in the company. By interlocutory process filed on 24 April 2009, Mr Baird seeks the appointment of a provisional liquidator, and specifically that one Ashton Brailey, an official liquidator, be appointed liquidator of the company provisionally. Mr Brailey has given a consent, in which he certifies he is not aware of any conflict of interest or duty that would make it improper for him to act as liquidator of the company. The defendants agree to the appointment of a provisional liquidator, but oppose the appointment of Mr Brailey, and have provided consents of David Ian Mansfield (an official liquidator) and of David John Frank Lombe and Simon John Cathro of Deloittes (also official liquidators). 2 There is no evidence that reflects adversely on the fitness of Mr Brailey, nor on the fitness if Mr Lombe and Mr Cathro. Mr Mansfield is a partner in Moore Stephens, and there is evidence that another partner of that firm was retained in early April of this year by the second defendant to value the business of the company. This prior association, while it may ultimately achieve some economies, is also a matter which might in some minds reflect on the independence of Mr Mansfield.