Golden Plantation Pty Ltd v TQM Design and Construct Pty Ltd; KCL Developments Pty Ltd v TQM Design and Construct Pty Ltd [2010] NSWSC 1453

New South Wales Supreme Court

CITATION : Golden Plantation Pty Ltd v TQM Design and Construct Pty Ltd; KCL Developments Pty Ltd v TQM Design and Construct Pty Ltd [2010] NSWSC 1453

HEARING DATE(S) : 14/12/10

JUDGMENT DATE : 15 December 2010

JURISDICTION : Equity Division Corporations List

JUDGMENT OF : Barrett J

DECISION : 1. Order that the defendant be permanently restrained from relying on failure by the plaintiff to comply with a statutory demand dated 20 May 2010 served on the plaintiff by the defendant to commence proceedings for the winding up of the plaintiff in insolvency. 2. Order that the defendant pay the plaintiff's costs of the proceedings.

CATCHWORDS : CORPORATIONS - winding up - insolvency - presumption of insolvency arising from failure to comply with statutory demand - period for which presumption available to found winding up application - where company made application purporting to be under s 459G - where court found that no valid or effectual application under s 459G had been made - company's application dismissed - whether failure to comply with demand occurred seven days after dismissal or 21 days after service of statutory demand

LEGISLATION CITED : Corporations Act 2001 (Cth), ss 459C(1)(a), 459C(2)(a), 459F, 459G, 459H, 459J, 459P, 459Q, 467A

CATEGORY : Principal judgment

David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265 Golden Plantation Pty Ltd v TQM Design and Construct Pty Ltd [2010] NSWSC 1279 Leveraged Capital Pty Ltd v Modena Imports Pty Ltd [2009] NSWSC 509 CASES CITED : Long Nominees Pty Ltd v Roandale Holdings Pty Ltd [2009] NSWSC 932 Missing Link Network Integration Pty Ltd v Keene Consulting International Pty Ltd [2007] NSWSC 1377 Pinn v Barroleg Pty Ltd (1997) 138 FLR 417 Woodgate v Garard Pty Ltd [2010] NSWSC 508; (2010) 239 FLR 339