NSW Caselaw
New South Wales Supreme Court
CITATION : Leveraged Capital Pty Ltd v Modena Imports Pty Ltd [2009] NSWSC 509
HEARING DATE(S) : 4 & 6 May 2009 JURISDICTION : Equity Division Corporations List
JUDGMENT OF : Brereton J
EX TEMPORE JUDGMENT DATE : 7 May 2009
DECISION : Plaintiff granted leave to proceed as contingent creditor. Order that company be wound up in insolvency and that liquidator be appointed. Order that plaintiff's costs be paid out of defendant's assets.
CATCHWORDS : CORPORATIONS - External administration – winding up – winding up in insolvency – where proceedings instituted after earlier s 459G application dismissed as incompetent – when proceedings commenced more than three months after time for compliance with demand – whether presumption of insolvency arising from plaintiff's failure to comply can be relied on - whether defendant precluded from disputing plaintiff's status as creditor - whether plaintiff has established standing as a creditor - whether plaintiff has established standing as contingent creditor in respect of costs order previously made between parties - whether a prima facie case of insolvency made out - whether plaintiff should be granted leave to apply for company to be wound up - Discretionary considerations - whether application should be adjourned or dismissed to permit voluntary administration to proceed
LEGISLATION CITED : (CTH) Corporations Act 2001 s 459P, s 436A, s 440A, s 459C(2), s 459F, s 459F(2)(a), s 459G, s 459G(3), s 459P s 459P(3), s 459Q, s 459S, s 459F(2), s 459F(2)(a), s 459F(2)(b), s 459G(3) (NSW) Legal Professional Act 2004
CATEGORY : Principal judgment
Alati v Wei Sheung & Ors [2000] NSWSC 601 Deputy Commissioner of Taxation v Tixana [2003] NSWSC 968 Dray v Trackmate [2003] NSWSC 482 Graywinter Properties Pty Limited v Gas and Fuel Corporation Superannuation Fund (1996) 70 FCR 452 CASES CITED : Gryst v Dromana Estate Ltd [2008] FCA 1148 Lemery Holdings Pty Ltd v Reliance Finance Services Pty Ltd [2008] NSWSC 548 Melbase Corp Pty Ltd v Segenhoe Ltd (1995) 13 ACLC 823 Modena Imports Pty Limited v Leveraged Capital Pty Limited (in liq) [2009] NSWSC 20 NAB Ltd v Market Holdings Pty Limited (in liq) [2001] NSWSC 253 Pacific Islands Express Pty Ltd v Empire Building Development Pty Ltd [2008] NSWSC 576
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