In the matter of Simeon Enterprises Pty Ltd (in liquidation) [2012] NSWSC 538

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Simeon Enterprises Pty Ltd (in liquidation) [2012] NSWSC 538 Hearing dates: 16 April 2012 Decision date: 16 April 2012 Jurisdiction: Equity Division - Corporations List Before: Hammerschlag J Decision: Pursuant to s 482(1) of the Corporations Act 2001 (Cth), the winding up of Simeon Enterprises Pty Ltd (In Liquidation) ACN 124 336 296 is stayed Catchwords: CORPORATIONS - Corporations Act 2001 (Cth) - application to terminate winding up proceedings pursuant to s 482(1) of the Corporations Act 2001 (Cth) - no response from ASIC at the time of the application - certain creditors to be paid - winding up stayed Legislation Cited: Corporations Act 2001 (Cth) Cases Cited: Re Telescriptor Syndicate Ltd [1903] 2 Ch 174 Gematech Pty Ltd v Bardi Investments Pty Ltd [2008] NSWSC 196 Category: Principal judgment Parties: Ruza Grncarski - Plaintiff Daniel Peter Juratowitch and Ozem Azzam Kassem as Liquidators of Simeon Enterprises Pty Limited (In Liquidation) - First Defendant Simeon Enterprises Pty Limited (In Liquidation) - Second Defendant Representation: Counsel: P. J. Beazley - Plaintiff S. Pagano - First and Second Defendants Solicitors: Beazley Singleton Lawyers - Plaintiff Pagano Burlovich Lawyers File Number(s): 2012/00101077

ex tempore Judgment 1HIS HONOUR: The second defendant company, Simeon Enterprises Pty Ltd (In Liquidation) ACN 124 336 296 ("the Company"), was wound up by the Court on 15 March 2012 after having failed to meet a Statutory Demand dated 14 December 2011 directed to it by the Workers Compensation Nominal Insurer ("the insurer") for the amount of $12,900.85. $6,008.16 of that amount was the subject of a judgment obtained by the creditor against the Company in the Local Court at North Sydney. 2By Originating Process sued out of the Court on 30 March 2012, the plaintiff, Ruza Grncarski, the company's shareholder and director, seeks an order terminating the winding up of the company. The application is supported by affidavits of Ms Grncarski sworn 29 March and 14 April 2012 respectively and by three affidavits of her solicitor, Mr Beazley. 3The Company carries on business as a delicatessen importing and selling foods from Serbia. It operates from rented factory premises in Marrickville consisting of two storeys. The premises have two doors, one of which leads to an upstairs section which is sublet. There are no mail boxes. 4The Statutory Demand was received (it appears), as was the winding up petition, at the Company's registered office, situated at the premises of its accountants. The accountants forwarded the documents to the Company's street address where they appear to have been pushed under the door leading to the upstairs section. The subtenant apparently handed the relevant documents to Ms Grncarski on 20 March 2012. I am satisfied that until this date she did not have personal knowledge of the existence of either the Statutory Demand or the winding up petition. 5The Company's business is operated on a cash basis. It owes no income tax and its returns are up-to-date. It owns a vehicle, the value of which approximates the money owing on it. It owns stock at a retail value of about $23,000 and it owes two providores $4,500 each. Other minor creditors have been paid. 6Since the winding up order, Ms Grncarski 's father has paid $5,000 for stock and $5,000 to the AMP, its landlord. The Company owes Ms Grncarski $15,500 for rent and stock which she paid on its behalf at a time at which the company was not trading. $10,000 has been placed in a trust account by her father to secure payment of the liquidator's fees. At the moment it may be that the liquidator's fees exceed that amount. The liquidator has appeared here today and does not oppose the orders which I propose to make. 7Ms Grncarski has undertaken to pay the two providores the amounts which are owed to them and the amount which is owing to the Insurer. It is clear that the amount which is owed is not the amount in the Statutory Demand. The evidence establishes that there are adjustments to be made. The Insurer acknowledges that the Company was charged incorrect premiums. The present amount owed is $6,476.39 in premiums and legal costs, and $5,596.20 for costs of the winding up proceedings. 8The papers have been served on the Australian Securities and Investments Commission ("ASIC") which has not yet responded despite attempts to speed up that process. 9The Company is profitable and I am satisfied that it is solvent, albeit with the support of Mr Grncarski and her father. Ms Grncarski has indicated in her affidavit evidence that her father has agreed not to make a claim on the Company for the money it owes him unless the Company can afford to repay him, a matter which I note. She herself has offered to undertake not to make a claim on the Company for the money it owes her unless the Company can afford to repay her. I note that too. 10I am satisfied that had the Statutory Demand and petition come to Ms Grncarski's notice, appropriate arrangements would have been made to pay the amount due. There is nothing to suggest that the order sought is not in the public interest, including having regard to commercial morality; see Re Telescriptor Syndicate Ltd [1903] 2 Ch 174 and the other authorities cited in Gematech Pty Ltd v Bardi Investments Pty Ltd [2008] NSWSC 196 at [24]. 11However, there being no response yet received from ASIC, whilst I consider it appropriate to allow the Company to be restored to the hands of Ms Grncarski, I am not yet satisfied that the order should be made at this time. I consider that the appropriate course is to stay the winding up order pending ASIC's response and to allow the outstanding amounts owed to the petitioning creditor and the providores to be paid, as well as to allow the release to the liquidators towards payment of their costs of the amount currently provided as security. 12I make the following orders. 13Pursuant to s 482(1) of the Corporations Act 2001 (Cth), I stay the winding up of Simeon Enterprises Pty Ltd (In Liquidation) ACN 124 336 296. 14I stand the matter over before the Corporations List Judge on 30 April 2012 with liberty to apply on 48 hours' notice. 15These orders are to be entered forthwith.