Mitchell Warren Ball (in his capacity as official liquidator of Wealthfarm Group Services) v Nicholas Quinn Sinclair [2015] NSWSC 2103

Supreme Court New South Wales

Medium Neutral Citation: Mitchell Warren Ball (in his capacity as official liquidator of Wealthfarm Group Services) v Nicholas Quinn Sinclair [2015] NSWSC 2103 Hearing dates: 31 August 2015 Date of orders: 31 August 2015 Decision date: 31 August 2015 Jurisdiction: Equity - Corporations List Before: Brereton J Decision: Judgment for the plaintiff. Catchwords: CORPORATIONS – insolvent trading – pleading – necessity to plead date of insolvency and date when debt incurred – presumption of insolvency under (CTH) Corporations Act 2001, s 588E(4) – failure to keep financial records under s 286 – bare assertion of liquidator insufficient to found presumption – proof of actual insolvency – whether claims for damages for disclaimed lease constitute "debts" – whether debt to Department of Employment in respect of claims of company's former employees satisfied under FEG Scheme recoverable – whether Department is assignee of employees' claims for purposes of s 588M(1)(b) – assessment of loss or damage suffered by creditor – credit to be given for probable dividend. Legislation Cited: (CTH) Corporations Act 2001, s 286, s 286(1), s 286(2), s 588E(4), s 588G, s 588M, s 588M(1) (NSW) Civil Procedure Act 2005, s 100 Cases Cited: Edenden v Bignell [2007] NSWSC 1122 Powell v Fryer [2001] SASC 59; (2001) 159 FLR 433; 37 ACSR 589 In the matter of Salfa Pty Limited (in liquidation) (ACN 082 308 101) [2014] NSWSC 1493 Tourprint International Pty Ltd v Bott [1999] NSWSC 581; (1999) 32 ACSR 201 Texts Cited: ASIC Information Sheet Number 76 Category: Procedural and other rulings Parties: Mitchell Warren Ball (in his capacity as official liquidator of Wealthfarm Group Services Pty Ltd (in liquidation) ACN 144 779 475) (first plaintiff) Wealthfarm Group Services Pty Ltd (in liquidation) ACN 144 779 475 (second plaintiff) Nicholas Quinn Sinclair (defendant) Representation: Counsel: F Salama (plaintiffs)