NSW Caselaw
New South Wales Supreme Court
CITATION : JPQS Pty Ltd v Redpen Developments Pty Ltd; Application of Gamcorp (Waterloo) Pty Ltd [2009] NSWSC 687 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S) : 17/04/09; 22/04/09 Written submissions: 01/05/09; 12/05/09; 29/05/09; 01/07/09
JUDGMENT DATE : 23 July 2009
JURISDICTION : Equity Division Corporations List
JUDGMENT OF : Barrett J
DECISION : Interlocutory process dismissed with costs.
CATCHWORDS : CORPORATIONS - winding up - pending application for winding up in insolvency - application for substitution as plaintiff - whether applicant for substitution is a creditor - turns on own facts
Corporations Act 2001 (Cth), Part 5.3A, ss 459P, 465B, LEGISLATION CITED : Evidence Act 1995, s 75 Partnership Act 1898
CATEGORY : Principal judgment
CASES CITED : CVC Investments Pty Ltd v P&T Aviation Pty Ltd (1989) 18 NSWLR 295 Tokich Holdings Pty Ltd v Sheraton Constructions (NSW) Pty Ltd [2004] NSWSC 527; (2004) 185 FLR 130
JPQS Limited - Plaintiff PARTIES : Redpen Developments Pty Limited - Defendant/Respondent Gamcorp (Waterloo) Pty Limited - Applicant
FILE NUMBER(S) : SC 4570/08
COUNSEL : Mr R D Glasson - Applicant Mr J E Thomson - Defendant/Respondent
SOLICITORS : Parry Carroll - Applicant Levitt Robinson - Defendant
IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION CORPORATIONS LIST
BARRETT J
THURSDAY 23 JULY 2009
4570/08 JPQS PTY LIMITED v REDPEN DEVELOPMENT PTY LIMITED; APPLICATION OF GAMCORP (WATERLOO) PTY LIMITED JUDGMENT 1 On 4 September 2008, JPQS Pty Ltd filed an originating process by which it sought an order under s 459P of the Corporations Act 2001 (Cth) for the winding up in insolvency of Redpen Pty Ltd ("Redpen"). JPQS Pty Ltd relied on alleged failure of Redpen to comply with a statutory demand. 2 By interlocutory process filed on 30 October 2008, Gamcorp (Waterloo) Pty Ltd ("Gamcorp") seeks an order that it be substituted as the applicant for winding up. Gamcorp's application is brought under s 465B. Since Gamcorp is itself in liquidation, it is its liquidator who has caused it to make the substitution application. 3 Section 465B is in these terms: "(1) The Court may by order substitute, as applicant or applicants in an application under section 459P, 462 or 464 for a company to be wound up, a person or persons who might otherwise have so applied for the company to be wound up.
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