In the matter of Nugisi Pty Limited [2011] NSWSC 1512

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Nugisi Pty Limited [2011] NSWSC 1512 Hearing dates: 7 December 2011 Decision date: 09 December 2011 Jurisdiction: Equity Division - Corporations List Before: Ball J Decision: See paragraphs 27 to 30 of this judgment. Catchwords: CORPORATIONS - application to appoint provisional liquidator - whether assets under threat - application dismissed Legislation Cited: Civil Procedure Act 2005 (NSW) Corporations Act 2001 (Cth) Private Health Facilities Act 2007 (NSW) Cases Cited: Earth Loop Pty Ltd v AIAN Investments Pty Ltd [2008] NSWSC 1042 Grace v Grace [2007] NSWSC 6 Tomanovic v Global Mortgage Equity Corporation Pty Ltd [2011] NSWCA 104 Category: Interlocutory applications Parties: Drummoyne Administration Services Pty Limited (Plaintiff) Macquarie Hospital Services Pty Limited ACN 002 616 917 (First Defendant) Nugisi Pty Limited ACN 002 527 077 (First Defendant) President Private Hospital Pty Limited (Third Defendant) Representation: G P George (Plaintiff) M Green (First Defendant) Flick Legal (Plaintiff) Bruce Stewart Dimarco (First Defendant) File Number(s): 2011/368572

Judgment 1The third defendant, President Private Hospital Pty Limited ( PPH ) operates a private hospital in Kirrawee. It is wholly owned by the second defendant, Nugisi Pty Limited. Nugisi, in turn, is owned equally by the plaintiff, Drummoyne Administration Services Pty Limited ( Drummoyne ) and the first defendant, Macquarie Hospital Services Pty Limited ( MHS ). Drummoyne is controlled by Dr Barry Landa. MHS is wholly owned by Macquarie Health Corporation Ltd ( MHC ). MHS operates a number of hospitals in New South Wales. Its chief executive officer is Dr Thomas Wenkart. Dr Landa and Dr Wenkart are the sole directors of both Nugisi and PPH. It appears that companies associated with Dr Landa and Dr Wenhart have directly or indirectly owned the hospital for in excess of 30 years. Dr Landa seeks to characterise their relationship as a quasi-partnership. That characterisation is disputed by MHS. In any event, it appears that the relationship between Dr Landa and Dr Wenkart has broken down. As a consequence, by an originating process filed on 29 November 2011, Drummoyne seeks an order that Nugisi be wound up under ss 233 or 461 of the Corporations Act 2001 (Cth) (the Act ) and that PPH be wound up under s 461 of the Act. Alternatively, Drummoyne seeks an order that Drummoyne or MHS buy the other's shares in Nugisi. By way of interlocutory relief, Drummoyne seeks an order that a provisional liquidator be appointed to Nugisi. It is with that relief that this judgment is concerned.