In the matter of Open Plains Wholesale Meats Pty Limited [2012] NSWSC 1156

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Open Plains Wholesale Meats Pty Limited [2012] NSWSC 1156 Hearing dates: Monday 24 September 2012 Decision date: 24 September 2012 Jurisdiction: Equity Division - Corporations List Before: Brereton J Decision: Grant leave to the plaintiff to discontinue the proceedings Catchwords: PRACTICE & PROCEDURE - leave to discontinue - plaintiff seeks leave to discontinue application to wind up in insolvency for failure to comply with creditor's statutory demand - factors to be considered when granting leave to discontinue - where there is no evidence of solvency of the defendant Category: Principal judgment Parties: Reid Administration Services Pty Limited (in liq) (plaintiff) Open Plains wholesale Meats Pty Ltd (defendant) Representation: Counsel: Mr S Vuleta (plaintiff) Ms C Perry (defendant) Solicitors: Wyndham Prem P/L (plaintiff) Pure Legal (defendant) File Number(s): 2012/ 186105

Judgment (ex tempore) 1By originating process of 13 June 2012 the plaintiff Reid Administration Services Pty Ltd (in liquidation) seeks an order that the defendant Open Plains Wholesale Meats Pty Ltd be wound up in insolvency on the basis of failure to comply with a Creditor's Statutory Demand. The originating process was first made returnable on 25 July before the Registrar, when it was adjourned to 11 August, with the defendant being directed to file and serve a Notice of Appearance and/or grounds for opposition by 30 July 2012. None appears to have been filed. 2On 1 August 2012, the proceedings were again before the Registrar, when they were adjourned by consent to 3 September, with directions that the defendant serve evidence concerning service of the Creditor's Statutory Demand by 14 August 2012, and the plaintiff to serve its evidence in reply by 28 August 2012. It thus seems that a central issue was to be service of the Demand. 3On 3 September, the proceedings were before me in the Corporations List, when they were adjourned to 10 September for directions, the court being informed that there were negotiations on foot between the parties. On 10 September, the proceedings were adjourned to today, when the plaintiff sought leave to file a Notice of Discontinuance, to which the defendant consented. 4The proceedings had been advertised: an affidavit of publication of 12 July deposes to advertisement in the Gazette on 29 June, and the Daily Telegraph on 3 July, 2012 5Ordinarily, when winding up proceedings have been before the court on more than one occasion, and in particular when they have been advertised, and it is proposed that they be dismissed by consent, the court expects to receive evidence of the solvency of the corporation and evidence - that is to say, on affidavit - deposing to what, if any, notices of intention to appear, and support or oppose the application, have been received from creditors or contributories. No such evidence has been provided in this case. 6The court, however, was informed that notice had been received from a creditor, being SNSH Pty Limited (in liquidation), and, after an adjournment this morning, has been provided with evidence of a communication with the liquidators of that company to the effect that they are not in a position to be substituted as plaintiff, as their claim against the defendant in the District Court is defended, and liability disputed. 7The court has not been provided with evidence of solvency of the defendant. However on this occasion I have regard to the circumstance that there appears to have been a dispute as to service of the Demand, and that the amount of the debt claimed was only in the order of $20,000. 8With considerable misgivings, therefore, I will grant the plaintiff leave to discontinue the proceedings.