Williams v Calivil Park Holstein Pty Ltd [2009] NSWSC 389

New South Wales Supreme Court

CITATION : Williams v Calivil Park Holstein Pty Ltd [2009] NSWSC 389 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 4 May 2009

JUDGMENT DATE : 4 May 2009

JURISDICTION : Equity

JUDGMENT OF : Bryson AJ at 1

(1) The interlocutory process is dismissed. DECISION : (2) Order under s 459 of the Corporations Act 2001 that Calivil Park Holsteins ACN 097 498 167 be wound up. (3) Order that Mr. Stephen Alan Jay be appointed liquidator of Calivil Park Holsteins ACN 097 498 167. (4) Order that the plaintiff's costs on the Notice of Motion assessed on the indemnity basis be costs in the winding up.

CATCHWORDS : CORPORATIONS – Winding up – Statutory Demand – application s459S for leave to argue validity of statutory demand – demand based on order of Common Law Division for payment on 18 December 2008 of various sums required to be paid under terms of earlier interlocutory orders in Possession proceedings – Possession issues determined and Company evicted by Sheriff but claims and cross-claims for damages by both parties were still pending – ground in s 459S (2) was offsetting claim being pending cross-claim – HELD – cross claim for damages could not be offsetting claim against judgment of the Court for payment of money – subsection 459S(2) was satisfied as the ground was material to determination of the question of insolvency. Leave refused on discretionary grounds: (1) the ground could not succeed. (2) the company was hopelessly insolvent. (3) Procedural failings and late application.

LEGISLATION CITED : Corporations Act 2001 (Cth) Civil Procedure Act 2005 (NSW