Supreme Court New South Wales Medium Neutral Citation: In the matter of Binqld Finances Pty Limited; In the matter of EGL Development (Canberra) Pty Limited; In the matter of Ligon 268 Pty Limited [2015] NSWSC 278 Hearing dates: 2 March 2015 Date of orders: 02 March 2015 Decision date: 02 March 2015 Jurisdiction: Equity Division - Corporations List Before: Brereton J Decision: Winding up orders made and liquidators appointed. Catchwords: CORPORATIONS – winding up – winding up in insolvency – failure to comply with creditor's statutory demand – opposition only to nominated liquidator – where liquidators appointed to related company – held, concurrent appointments not inappropriate. Legislation Cited: (Cth) Corporations Act 2001, s 459E Category: Procedural and other rulings Parties: Deputy Commissioner of Taxation (plaintiff) Binqld Finances Pty Ltd ACN 119 243 220 (defendant in 2014/364715) EGL Development (Canberra) Pty Limited ACN 008517646 (defendant in 2014/364827) Ligon 268 Pty Ltd ACN 051 824 081 (defendant in 2014/364844) Representation: Counsel: F Assaf (plaintiff) J T Johnson (defendants) Solicitors: Australian Government Solicitor (plaintiff) Polcynski Lawyers (defendants) File Number(s): 2014/364715; 2014/364827; 2014/364844 Judgment (ex tempore) 1. HIS HONOUR: In each of these three matters, the plaintiff Deputy Commissioner of Taxation served on the defendant company a creditor's statutory demand under (Cth) Corporations Act 2001, s 459E, on 27 October 2014 by pre-paid post to the registered office of the defendant. The creditor's statutory demand claimed tax liabilities said to be due and payable by the relevant defendant to the plaintiff. Proof of service of the creditor's statutory demand is established by the affidavit of Lyn Kennedy of 28 November 2014. 2. The plaintiff filed an originating process claiming an order that the defendant be wound up in insolvency and a liquidator appointed on 11 December 2014. The application relies on the failure to comply with the statutory demand. The affidavit of Lyn Kennedy of 11 December 2014 establishes that the defendant failed to pay the amount of the debt demanded or to secure or compound for it to the plaintiff's reasonable satisfaction within 21 days after service of the demand. Ian Lock and John Sheahan of Sheahan Lock Partners have consented to be appointed liquidators. 3. The defendant filed a notice of appearance on 3 February 2015, which stated two grounds of opposition: first, that there was no available presumption of insolvency by reason of the address for service specified in paragraph 6 of the demand, not being an address accessible for service; such demand was a nullity; and, secondly, that the defendant objected to the nominated liquidators and sought the appointment of some other official liquidator, but did not seek to nominate any such liquidator. 4. The first ground of opposition is no longer pressed. 5. The affidavit of Zoe Daniels of 16 January 2015 establishes, to the extent it is necessary to do so in the light of the notice of appearance, service of the originating process on the defendant company, and also publication on 15 January 2015 on the ASIC insolvency notice websites of the requisite order, save that the affidavit incorrectly states that the notice referred to an application for a winding-up order in the Federal Court of Australia. 6. The affidavit of Natasha Atanasovska of 12 December 2014 proves lodgement of the requisite notice of the winding-up application with ASIC. 7. It is admitted that the debt is still outstanding. I am satisfied that the company is presumed to be insolvent and ought to be wound up. 8. In support of its second ground of opposition, the defendants tendered three documents, which are said to indicate that the proposed liquidators have been appointed to a related company and may not be suitable to be appointed. This evidence is served very late, outside the time permitted for directions. I have received it and admitted it so that I can understand the submissions made in that respect and take them into account. But there is no affidavit evidence adverse to the fitness or suitability of the liquidators. The mere fact of their appointment to a related company is often a benefit rather than a disadvantage. As presently advised, I can see nothing in this material which would suggest they are otherwise than appropriate, especially in circumstances where no alternative is proffered. 9. In each case, I order that the company be wound up in insolvency, and that Ian Lock and John Sheahan of Sheahan Lock & Partners be appointed liquidators of the defendant. 10. I fix the costs payable out of the assets of the defendant, pursuant to the Act, in each matter at $8,434. ********** 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