In the matter of Mistypeak Investments Pty Ltd [2013] NSWSC 356

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Mistypeak Investments Pty Ltd [2013] NSWSC 356 Hearing dates: Monday 11 March 2013 Decision date: 11 March 2013 Jurisdiction: Equity Division - Corporations List Before: Brereton J Decision: That Mistypeak Investments Pty Ltd be wound up in insolvency. That Chris Wykes of Lawler Partners Chartered Accountants be appointed as the liquidator of the defendant. Operation of this order be stayed until and including 25 March 2013 Catchwords: CORPORATIONS - External administration - application to wind up in insolvency - failure to comply with a statutory demand - whether order should be stayed in order to allow completion of sale of property Category: Interlocutory applications Parties: Australia & New Zealand Banking Group Limited (Plaintiff) Mistypeak Investments Pty Ltd (Defendant) Representation: Counsel: J Mallios (Plaintiff) D Allen (Defendant) Solicitors: Kemp Strang (Plaintiff) Hancocks Solicitors (Defendant) File Number(s): 2012/ 266986

Judgment (ex tempore) 1HIS HONOUR: By application filed on 27 August 2012 the plaintiff Australia and New Zealand Banking Group Limited seeks an order that the defendant Mistypeak Investments Pty Ltd be wound up and that a liquidator be appointed. The application is made on the ground of failure to comply with a statutory demand dated 26 April 2012 that was served on the defendant on 24 May 2012, then claiming a sum of $535,060.62. The defendant failed to comply with the statutory demand, but has made some small instalment payments in the meantime. 2The defendant is therefore presumed to be insolvent. All necessary formal matters to enable a winding up order to be made have been satisfied. Chris Wykes of Lawler Partners Chartered Accountants has consented to be appointed liquidator. 3However, the defendant has contracted to sell a property at Macquarie Fields for a total of $572,800 which would practically, if not completely, enable the debt to be extinguished. On the occasion when the matter was last before the Court, and with considerable misgivings, I adjourned the hearing until today, as it appeared that completion of that sale was imminent. Completion was appointed for 5 March 2013, but did not proceed. On 11 March 2013, the company's solicitors served on the purchaser a notice to complete, requiring completion by 25 March 2013. By letter of the same date, the purchaser's solicitors have indicated that they have received the notice to complete and are instructed that the purchaser's incoming mortgagee will be in a position to settle by 21 March 2013. 4The plaintiff's director, Mr Cannavo, has offered to pay the defendant $20,000 forthwith in the event that an adjournment is granted or, as I understand it, if the operation of a winding up order is stayed. Once that and the instalment payments already made are taken into account, the proceeds of sale would seemingly be sufficient to extinguish the debt. There are no supporting creditors. 5In those circumstances, it seems to me that, while a winding up order should be made, its operation should be stayed to enable it to be ascertained whether the sale is completed. While I am conscious of the repeated indulgences that have been granted to the defendant, there is in this case at least some evidence to found a supposition that it may well be possible for the sole creditor to be paid in full within a short space of time, and the company's director is prepared to stand behind that by committing to pay $20,000 now. 6For those reasons: (1)I order that Mistypeak Investments Pty Ltd be wound up in insolvency. (2)I order that Chris Wykes of Lawler Partners Chartered Accountants be appointed liquidator of the defendant. (3)I order that the operation of this order be stayed until and including 25 March 2013. (4)I reserve liberty to apply in the meantime.