In the matter of Denham Constructions Pty Limited [2016] NSWSC 768

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Denham Constructions Pty Limited [2016] NSWSC 768 Hearing dates: 30 May 2016 Decision date: 30 May 2016 Jurisdiction: Equity - Corporations List Before: Black J Decision: Order that the Deputy Commissioner of Taxation, Workers Compensation Nominal Insurer and any other party that seeks to be substituted as creditor in the winding up of Defendant, file and serve any application for substitution and all affidavit evidence on which it relies by 4pm, 14 June 2016. Stand over application of A Murray & Sons Pty Ltd to be substituted as applicant in the winding up application to the Corporations Motions List at 9.45am on 20 June 2016. Stand over Interlocutory Process filed by Defendant, in the event that no application for intervention is granted, to the Corporations Motions List at 9.45am on 20 June 2016. Catchwords: PRACTICE AND PROCEDURE — Application by company to set aside winding up application under s 61(3)(a) of the Civil Procedure Act 2005 (NSW) and r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW) – where the Court had previously ordered that any party seeking substitution as creditor in the winding up application file its application by a certain date which did not occur – where several creditors intervened in application opposing company's application to dismiss the winding up application – whether the winding up application should be dismissed having consideration to the just resolution of the proceedings and interests of public policy – whether the Court should make an order extending the time for parties to file an application for substitution as creditor in the winding up application.

PROCEDURE — Costs – where company was unsuccessful in application to dismiss winding up application – where company had brought application in circumstances where no creditors had filed an application seeking substitution in the winding up application prior to the date specified in the Court's directions – whether in the relevant circumstances costs orders should be made against the unsuccessful applicant. Legislation Cited: - Civil Procedure Act 2005 (NSW), s 56–58, 61 - Uniform Civil Procedure Rules 2005 (NSW), r 12.7 - Corporations Act 2001 (Cth), s 465A, 465B Cases Cited: - In the matter of Denham Constructions Pty Ltd [2016] NSWSC 567 Category: Procedural and other rulings Parties: CSR Building Products Limited (Plaintiff) Denham Constructions Pty Limited (Defendant) Representation: Counsel: D Robertson (Defendant/Applicant) A Hack (Workers Compensation Nominal Insurer – Supporting Creditor) Ms Wong (Deputy Commissioner of Taxation – Supporting Creditor) P Hunt (5G Capital SPV27 Pty Ltd - Creditor) H Collins (A Murray & Sons Pty Ltd – Supporting Creditor)