Supreme Court New South Wales Medium Neutral Citation: Findlay v Jones [2015] NSWSC 277 Hearing dates: 9 March 2015 Date of orders: 09 March 2015 Decision date: 09 March 2015 Jurisdiction: Equity Division - Corporations List Before: Brereton J Decision: Notice of motion dismissed. Catchwords: PRACTICE AND PROCEDURE – expedition of proceedings – preservation of position of unsecured creditors – where potential prejudice not significant – held, expedition not warranted. Legislation Cited: (Cth) Corporations Act 2001, s 588FM Cases Cited: In the matter of Appleyard Capital Pty Limited [2014] NSWSC 1932 Category: Procedural and other rulings Parties: Chesspast Pty Limited (in liquidation) ACN 069 921 731 (applicant/third defendant) David Findlay (first respondent/plaintiff) Wayne Curtis Jones (second respondent/first defendant)) Veena Kaha (third respondend/second defendant) Representation: Counsel: I Pike SC with V Whittaker (applicant/third defendant) P W Flynn (first respondent/plaintiff) D Robertson with E Whitley (second respondent/first defendant) Solicitors: Bridges Lawyers (applicant/third defendant) Maddocks Lawyers (first respondent/plaintiff) Eakin McCaffrey Cox Laywers (second respondent/first defendant) File Number(s): 2014/249547 Judgment (ex tempore) 1. HIS HONOUR: In these proceedings, the plaintiff claims against the first and second defendants judgment for a sum of just under $7 million said to be the amount of loans made by the plaintiff to the defendants, and as against the third defendant company a declaration that the plaintiff is the beneficial owner of certain shares in Anvil New Zealand Limited held by the third defendant and orders to give effect to that beneficial interest. In addition, pursuant to its amended summons, the plaintiff claims orders avoiding a voluntary liquidation of the third defendant pursuant to a resolution passed on 4 September 2014, a consequential order that the third defendant be wound up in insolvency or on the just and equitable ground, and in the event such order is made, but not otherwise, an order pursuant to (Cth) Corporations Act 2001, s 588FM, extending the time for registration of its security interest in the form of the share mortgage. 2. By notice of motion filed on 4 March 2015, the company seeks orders for the determination, as a separate question, of the claims for relief voiding the voluntary liquidation and that the company be wound up; alternatively for determination as separate questions of those issues together with the claim for relief under s 588FM; and alternatively expedition of the entire proceedings. 3. When the motion came on for hearing, counsel for the applicant announced that, as a result of discussions with counsel for the plaintiff, it had emerged that it would not likely be possible to separate the preliminary questions for determination in the way contemplated by the motion, because issues of credit germane to the entire proceedings would likely arise. Accordingly, the application for determination of separate questions was not, at least significantly, pressed, and the application proceeded as one for expedition of the proceedings as a whole. 4. The requirement for expedition is said to be that if the voluntary liquidation is declared void and if a winding up order is made on the plaintiff's application after 17 April 2015, then the plaintiff would not need to make an application under s 588FM and its share mortgage would not vest in the company in liquidation to the prejudice of the unsecured creditors. That appears to analyse the position correctly. Expedition is sought essentially so that the position of the unsecured creditors is preserved and that the plaintiff be required to make an application under s 588FM. 5. As what is sought is expedition of the proceedings as a whole, a number of difficulties arise. The first is the preparation of the matter for hearing in the context that, as Mr Robertson submits, his clients the first and second defendants are facing a claim for $7 million and the time for the filing of their defences has not yet expired. Secondly, the estimated time for hearing is said to be one to two days – perhaps optimistically – and save that the next week, the court at present has no availability to hear a matter of even one day's duration prior to 21 April. 6. While the court in this list normally endeavours to facilitate the expeditious hearing of any matter with a claim to an early hearing, the prejudice to the unsecured creditors in this case, if it turns out that the original winding up ought to be avoided, does not seem to me to be a significant or important consideration. This is not only for the reasons explained in In the matter of Appleyard Capital Pty Limited [2014] NSWSC 1932, but also because it is not apparent that the unsecured creditors have a legitimate legal interest in requiring that an application be made under s 588FM if it turns out that the voluntary liquidation presently on foot ought to be set aside, and even if they have a legitimate interest in that respect, it does not seem to me one of much significance in the present circumstances as to warrant the disruption of matters already fixed for hearing without which an early hearing date could not be ensured. 7. In so far as the liquidator is concerned not to be seen to be other than diligent in the protection of the interests of the unsecured creditors, he has done what he can by making this application, albeit unsuccessfully. 8. The court orders that the notice of motion filed 4 March 2015 be dismissed with costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 March 2015