In the matter of Peter Maxwell & Associates (Services) Pty Limited [2015] NSWSC 976

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Peter Maxwell & Associates (Services) Pty Limited [2015] NSWSC 976 Hearing dates: 18 May 2015 Date of orders: 18 May 2015 Decision date: 18 May 2015 Jurisdiction: Equity Division - Corporations List Before: Brereton J Decision: Originating process dismissed. Catchwords: CORPORATIONS – winding up – winding up in insolvency – where company resolves to be wound up voluntarily – requirement of leave where winding up application on foot – where petitioning creditor does not oppose grant of leave – where no advantage to be gained from insisting upon compulsory winding up – held, leave granted for company to be wound up voluntarily. Legislation Cited: (CTH) Corporations Act 2001, s 490(1) Category: Procedural and other rulings Parties: Deputy Commissioner of Taxation (plaintiff) Peter Maxwell & Associates (Services) Pty Limited (defendant) Representation: Counsel: C Bavin (solicitor) J Raftery

Solicitors: Hunt & Hunt (plaintiff) Moisson Lawyers (defendant) File Number(s): 2015/129520

Judgment (ex tempore) 1. HIS HONOUR: On 1 May 2015, the plaintiff Deputy of Taxation filed an originating process claiming an order that the defendant Peter Maxwell & Associates (Services) Pty Limited be wound up in insolvency and a liquidator be appointed. So far as appears, that originating process was filed at 10.30 am on that day. At 10.50am on that same day, before the originating process was served, the company resolved that it be wound up and that Mr Borous and Mr Tonks of PKF be appointed liquidators. This purported winding up was a creditor's voluntary winding up. Since that appointment, the purported liquidators have progressed the liquidation and taken a number of steps to carry it into effect. 2. (CTH) Corporations Act 2001, s 490(1)(a), provides that, except with the leave of the Court, a company cannot resolve that it be wound up voluntarily before its winding up in insolvency has been commenced. Such leave can be granted retrospectively. 3. It is relevant that, as in this case, the petitioning creditor consents to the relief sought. There is ample explanation for why the resolution was passed, since there is no prospect that notice of the winding up application could have been lodged with ASIC in the few minutes that passed between its filing and the passage of the winding up resolution. There is no suggestion that in the circumstances of this case there is any particular advantage in a compulsory winding up. That the petitioning creditors consent to the relief sought is significant evidence that a sophisticated creditor does not perceive that anything is to be gained by insisting on a compulsory winding up. 4. The Court therefore orders that: 1. Pursuant to Corporations Act, s 490(1)(a), the defendant Peter Maxwell & Associates (Services) Pty Limited have and be deemed on and since 1 May 2015 to have had leave to resolve that it be wound up voluntarily notwithstanding that an application for the company to be wound up in insolvency was filed on 1 May 2015. 2. The originating process be dismissed. 3. The plaintiff's costs in the sum of $2,145 be costs in the winding up payable following the liquidator's costs and expenses.