Donald Stevan Raice -v- I.C.T.A. (Investments) Pty Limited [2011] NSWSC 672

Supreme Court New South Wales

Medium Neutral Citation: Donald Stevan Raice -v- I.C.T.A. (Investments) Pty Limited [2011] NSWSC 672 Hearing dates: 27 June 2011 Decision date: 27 June 2011 Jurisdiction: Equity Division - Corporations List Before: Hammerschlag J Decision: With effect from 27 June 2011 the winding up of I.C.T.A. (investments) Pty Limited (In Liquidation) ACN 00 643 121 be terminated Catchwords: Corporations Act 2001 (Cth) - s 482(1) - application to terminate winding-up where company was wound up at the instance of a judgment creditor whose judgment was overturned on appeal - where the company is owed money by a related company - winding-up stayed to allow payment to be made - company clearly solvent - winding-up terminated Legislation Cited: Corporations Act 2001 (Cth) Category: Principal judgment Parties: Donald Stevan Raice - Plaintiff I.C.T.A. (Investments) Pty Limited - Defendant Representation: Counsel: T.J. Saunders - Plaintiff Solicitors: Donald Stevan Raice File Number(s): 2011/193294

EX TEMPORE Judgment 1HIS HONOUR: The plaintiff, a shareholder and contributory of the defendant company (the company), moves, by way of Originating Process filed on 14 June 2011, for an order that the winding-up of the company be terminated pursuant to s 482(1) of the Corporations Act 2001 (Cth). 2The circumstances under which the company was wound up and the circumstances which give rise to this application are set out principally in the affidavit of Donald Stevan Raice sworn 24 May 2011 and a series of documents exhibited to it. 3The company was wound up at the instance of a putative creditor, GE Commercial Corporation (Australia) Pty Ltd, which obtained a money judgment against the company, then served a statutory demand and on the basis of that statutory demand moved for and obtained an order for the winding-up of the company. The judgment was, however, later overturned by the Court of Appeal and the putative creditor still owes the company money for the costs of the proceedings. 4The company was engaged in a property development enterprise with a related company and is owed money by that company. That company has set aside a fund of $200,000 to pay the company, which, according to the affidavit, will be paid upon the termination of the winding-up. 5The information before the Court indicates that as at June 2004 the company had total liabilities of $95,451.79, of which at that time $80,631.42 were attributable to a loan from the plaintiff. 6There is further evidence before the Court that satisfies me that no creditor proved in the winding up. 7I was not satisfied that the winding-up of the company should be terminated until that payment was received but was prepared to make an order pursuant to s 482(1) of the Act that the winding-up be stayed, to allow the payment to be made on the basis that the winding-up would be terminated thereafter, given that the company would then undoubtedly be solvent. 8ASIC has been notified of this application, as has the liquidator. Neither has appeared to oppose. 9The proceedings were adjourned to allow the payment to be made and I am satisfied that it has been received by the company. 10The company is now clearly solvent. The circumstances which led to its winding up were somewhat unfortunate and there is now no reason why (taking into account the public interest) the company should not now be restored to its ordinary status. Indeed, there are good reasons why it should be. 11I make an order that with effect from 27 June 2011 the winding up of I.C.T.A (Investments) Pty Limited (In Liquidation) ACN 000 643 121 be terminated.