LTX Holdings Pty Limited v Solution4 Software Pty Limited [2011] NSWSC 1030

Supreme Court New South Wales

Medium Neutral Citation: LTX Holdings Pty Limited v Solution4 Software Pty Limited [2011] NSWSC 1030 Hearing dates: Monday, 22 August 2011 Decision date: 22 August 2011 Jurisdiction: Equity Division - Corporations List Before: White J Decision: 1. Dispense with the requirements of s 465A(c) of the Corporations Act and with any requirements of the Supreme Court (Corporations) Rules 1999 that have not been complied with. 2. I make orders 1, 2 and 3 in the originating process. Catchwords: CORPORATIONS - winding up - application for winding up and appointment of provisional liquidator - where admitted that defendant is insolvent - final orders for winding up made Legislation Cited: Corporations Act 2001 (Cth) Category: Principal judgment Parties: LTX Holdings Pty Limited (Plaintiff) Solution4 Software Pty Limited (Defendant) Representation: P Reynolds (Plaintiff) Hemsworth (Defendant) Clayton Utz (Plaintiff) File Number(s): 2011/260701

Judgment 1HIS HONOUR : By originating process filed on 12 August 2011, the plaintiff seeks an order that the defendant be wound up and that Matthew James Byrnes and Said Jahani be appointed as liquidators of the defendant. 2On the same day the plaintiff filed an interlocutory process seeking the appointment of those persons as provisional liquidators. 3Today the plaintiff pressed for the appointment of provisional liquidators to the defendant. 4Mr Hemsworth, solicitor, who appears for the defendant sought an adjournment of three weeks in order for the director of the defendant to appoint an administrator with a view to the director's proposing a deed of company arrangement. 5It is admitted that the defendant is insolvent. 6I do not accede to that application for an adjournment. 7If it appears that a deed of company arrangement could be formulated, which it would be in the interests of creditors to accept, then there is no reason that a liquidator or provisional liquidator could not appoint an administrator to convene a meeting of creditors to consider the proposed deed of company arrangement. With the approval of the company's creditors given at a meeting, or with the leave of the Court, a liquidator or provisional liquidator could appoint himself or herself as administrator for that purpose (ss 436B, 439A, 439C and 444A of the Corporations Act 2001 (Cth)). 8Having regard to the evidence in the affidavits of Mr Kelly and Mr Thanos to the effect that the business of the defendant has been transferred and that the defendant is a shell with debts, this would clearly be an appropriate case for the appointment of a provisional liquidator. 9Given the admission that the company is insolvent, I think it appropriate to make a final order for its winding-up. 10I am told that the winding-up application has not yet been advertised. In the circumstances I will dispense with that requirement. 11For these reasons I make the following orders: 1.I dispense with the requirements of s 465A(c) of the Corporations Act and with any requirements of the Supreme Court (Corporations) Rules 1999 that have not been complied with. 2.I make orders 1, 2 and 3 in the originating process. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 September 2011