In the Matter of Enviro Energy Australia Pty Ltd (in liquidation) [2010] NSWSC 1222

New South Wales Supreme Court

CITATION : In the Matter of Enviro Energy Australia Pty Ltd (in liquidation) [2010] NSWSC 1222

HEARING DATE(S) : 23 September 2010

JUDGMENT DATE : 23 September 2010

JURISDICTION : Equity

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 23 September 2010

DECISION : 1. Order that the interlocutory process filed on 8 April 2010 be dismissed; 2. order that the applicant pay the costs of the second respondent and the liquidator on the indemnity basis; 3. order that the applicant pay the costs of Challenger Managed Investments Limited in respect of the interlocutory process on the ordinary basis; 4. exhibits may be returned after 28 days.

CATCHWORDS : CORPORATIONS – application under Corporations Act 2001 (Cth), s 482 to stay or terminate winding-up of defendant company – application made by contributory and sole director of defendant company – where applicant proffered undertakings to seek adjournment of proceedings to make arrangements to discharge liabilities – onus on applicant to make out positive case for application – considerations relevant to grant of application – where evidence that company insolvent – where applicant failed to provide books and records to liquidator – where no evidence from external party to corroborate applicant's assertions as to company's financial position – not in the public interest or interests of commercial morality to restore stewardship of company to applicant's control – undertakings proffered not proper basis for adjournment - COSTS – whether company's liquidator and major creditor entitled to indemnity costs – where applicant delinquent in pursuing application

LEGISLATION CITED : Corporations Act 2001 (Cth)