In the matter of Arora Supermarkets Pty Limited [2016] NSWSC 880

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Arora Supermarkets Pty Limited [2016] NSWSC 880 Hearing dates: 30 May 2016 Decision date: 30 May 2016 Jurisdiction: Equity - Corporations List Before: Black J Decision: Order that Defendant be wound up under s 459P of the Corporations Act 2001 (Cth) and specified liquidator be appointed over the Defendant. The costs to the Plaintiff of the Originating Process be paid out of assets of the Defendant. Order that, to the extent necessary, the requirement for publication in accordance with reg 5.4.01A of the Corporations Regulations 2001 (Cth) and r 5.6 of the Supreme Court (Corporations) Rules 1999 (NSW) be dispensed with. Catchwords: CORPORATIONS — Winding up — Winding up in insolvency — Application for an order that the defendant company be wound up under s 459P of the Corporations Act 2001 (Cth) — where creditor applied for winding up of company on basis of company's failure to comply with creditor's statutory demand – where the creditor's statutory demand overstated the debt owed to creditor – where the company had neither applied to set aside the creditor's statutory demand nor appeared at hearing to oppose its winding up – whether presumption of insolvency arising from noncompliance with statutory demand applies in circumstances where statutory demand overstated the amount of debt owed to creditor – whether the Court should order winding up of company. Legislation Cited: - Corporations Act 2001 (Cth), ss 9, 459E, 459F, 459G, 459J, 459P, 459S, 461, 465A, Pt 5.4 - Corporations Regulations 2001 (Cth), reg 5.4.01A - Supreme Court (Corporations) Rules 1999 (NSW), r 5.6 Cases Cited: - Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Limited [2008] HCA 9; (2008) 232 CLR 314 - Commonwealth Bank of Australia v Individual Homes Pty Ltd (1994) 119 ACTR 1 - Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd [2008] HCA 41; (2008) 237 CLR 473 - Dikwa Holdings Pty Ltd v Oakbury Pty Ltd (1992) 8 ACSR 53 - Processed Sand Pty Ltd v Thiess Contractors Pty Ltd [1983] 1 NSWLR 384 - Re Fabo Pty Limited [1989] VR 432; (1988) 14 ACLR 518 Category: Principal judgment Parties: Westpac Banking Corporation (Plaintiff) Arora Supermarkets Pty Ltd (Defendant) Representation: Counsel: C T Ensor (Plaintiff)