In the matter of Salfa Pty Limited (in liquidation) (ACN 082 308 101) [2014] NSWSC 1493

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Salfa Pty Limited (in liquidation) (ACN 082 308 101) [2014] NSWSC 1493 Hearing dates: 22 September 2014 Decision date: 31 October 2014 Jurisdiction: Equity Division - Corporations List Before: Brereton J Decision: Motion for summary judgment dismissed. Held, third defendant contravened s 588G in respect of the ATO debt, but not the SCC debt; Plaintiffs entitled to recover amount of ATO's loss or damage in relation to the ATO debt because of the insolvency, but absent evidence as to what if any dividend has been or is likely otherwise to be paid, court not able to be satisfied what if any loss has been suffered. Originating process adjourned to permit the Plaintiffs to adduce further evidence. Catchwords: CORPORATIONS - External administration - winding up - insolvent trading - application for judgment in default of appearance - where leave to proceed has been granted against foreign defendant - whether default judgment procedure available in proceedings under Corporations Rules - whether company insolvent when debts incurred - measure of damages under s 588M Legislation Cited: (Cth) Corporations Act 2001, s 588E, 588G, 588M (NSW) Civil Procedure Act 2005, s 63 (NSW) Supreme Court (Corporations) Rules 1999 (NSW) Uniform Civil Procedure Rules 2005, rr 1.12, 6.2, 6.28, 10.14, 11.3, 11.4, 11.6, 12.11, 16.1. 16.6, 16.7 Cases Cited: Castrisios v McManus (1990) 4 ACSR 1; [1990] Tas R (NC) N13 Commissioner of Taxation (WA) v Pollock (1993) 11 WAR 64; 12 ACSR 217 Edenden v Bignell [2007] NSWSC 1122 Powell v Fryer (2001) 159 FLR 433; 37 ACSR 589; [2001] SASC 59 Rust v Barnes [1980] 2 NSWLR 726 Tourprint International Pty Ltd (in liq) v Bott (1999) 32 ACSR 201; [1999] NSWSC 581 Wakim v Coleman [2010] NSWCA 221 Wily v King [2010] NSWSC 352 Category: Interlocutory applications Parties: Angus Carnegie Gordon as liquidator of Salfa Pty Limited (in liquidation) (first plaintiff) Salfa Pty Limited (in liquidation) (second plaintiff) Andrew Bagg (third defendant) Representation: Counsel: J Laman (solicitor) (plaintiffs) Solicitors: CBP Lawyers (plaintiffs) File Number(s): 2011/166361