In the matter of Pendonna Pty Ltd [2012] NSWSC 631

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Pendonna Pty Ltd [2012] NSWSC 631 Hearing dates: Monday 28 May 2012 Decision date: 28 May 2012 Jurisdiction: Equity Division - Corporations List Before: Brereton J Decision: Leave to wind up voluntarily granted Catchwords: CORPORATIONS - winding up - Creditor's petition to wind up - Subsequent purported voluntary winding up in ignorance of creditor's petition - Whether leave should be granted nunc pro tunc to voluntarily wind up - Corporations Law s 490 Legislation Cited: (Cth) Corporations Act 2001, s 490 Cases Cited: Re Horsham Kyosan Engineering Company Limited [1972] VR 403 Progress Printers & Distributors Pty Limited v Production & Graphics Communications Pty Limited (1996) 21 ACSR 241 Re Northwestern Fruit Growers Pty Limited [1965] VR 306 Re South Australian Air Conditioning Centre Pty Limited (1977) 2 ACLR 539 GIO NSW v Krey Investments Pty Limited (Young J) 29 October 1990 Category: Principal judgment Parties: Pendonna Pty Limited (applicant) Workers' Compensation Nominal Insurer Employees Mutual NSW Limited (respondent) Representation: Mr Taylor (applicant) Ms Fowler (respondent) CCSG Legal P/L (applicant) RJF & Associates P/L (respondent) File Number(s): 2012/ 96399

Judgment (ex tempore) 1HIS HONOUR: The respondent Workers' Compensation Nominal Insurer Employees Mutual NSW Limited filed an application for the winding up of the applicant company Pendonna Pty Limited on 22 March 2012. For reasons that do not currently require explanation, but were not attributable to any default on the part of the petitioning creditor, notice of the application for winding up was not received by the Australian Securities and Investment Commission ("ASIC") until 2 April 2012, and was not processed and recorded by ASIC until 14 May 2012. In the meantime, on 27 April 2012, the directors of the company resolved to convene a members' meeting for the purposes of passing a special resolution for the winding up of the company, and on the same date an extraordinary meeting of members specially resolved that the company be wound up. The winding up is a creditor's voluntary winding up. Mr Peter Amos was appointed liquidator. 2By reason of (Cth) Corporations Act 2001, s 490, a company cannot, without the permission of the Court, effectively resolve that it be wound up voluntarily once an application has been filed with the Court for an order that it be wound up in insolvency. However, it is established that such permission may be granted retrospectively [Re Horsham Kyosan Engineering Company Limited [1972] VR 403 at 406; Progress Printers & Distributors Pty Limited v Production & Graphics Communications Pty Limited (1996) 21 ACSR 241]. 3It has been said that while a retrospective order can be made, it is ordinarily necessary to establish that it is preferable that the company be wound up voluntarily, rather than compulsorily [Re Northwestern Fruit Growers Pty Limited [1965] VR 306; Re South Australian Air Conditioning Centre Pty Limited (1977) 2 ACLR 539]. Indeed, it has been said that it will be a rare case in which such an order will be made retrospectively, presumably because of the difficulty in establishing that a voluntary winding up will be more in the interests of creditors than a compulsory winding up [GIO NSW v Krey Investments Pty Limited (Young J) 29 October 1990 (unreported)]. 4In the present case, the winding up is a creditor's voluntary winding up, not a members' voluntary winding up. In those circumstances, the powers of the voluntary liquidator do not differ markedly from those of a Court appointed liquidator. There has been a creditors' meeting, which was apprised of the pendency of the winding up proceedings, which by then had been discovered, and no issue appears to have been raised at that meeting concerning the appropriateness of the liquidator, nor the desirability of some other form of administration. 5The administration is well progressed, and time would be lost and effort wasted were it now necessary to appoint a new liquidator. The single significant advantage of a Court ordered winding up appears to be an earlier relation-back date by about one month, but at least at this stage there is no suggestion that there is any transaction that might be affected, were that earlier relation-back date applicable. 6Significantly, the respondent petitioning creditor does not oppose the relief sought, and I consider that an important factor in the circumstances, and indicative of a view of a creditor that its interests will be at least as well served by the voluntary winding up continuing, as by the alternative of a compulsory winding up. 7For those reasons, I grant leave to the applicant Pendonna Pty Limited, pursuant to s 490(1)(a) of (Cth) Corporations Act 2001, to resolve that it be wound up voluntarily, notwithstanding that an application for the company to be wound up in insolvency had been filed as at the date of the resolution, namely 27 April 2012. 8I order that the originating process filed 22 March 2012 be dismissed. I order the costs of the petitioning creditor be costs in the winding up.