In the matter of Denham Constructions Pty Limited [2016] NSWSC 1425

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Denham Constructions Pty Limited [2016] NSWSC 1425 Hearing dates: 1 September 2016 Decision date: 01 September 2016 Jurisdiction: Equity - Corporations List Before: Black J Decision: The Court orders that the application for adjournment of the winding up application be dismissed and the administrators pay the costs of the adjournment application. The Court orders that the Defendant be wound up in insolvency; Mr Alan John Hayes be appointed to act as liquidator of the Defendant; and the Plaintiff's costs, including its costs of the substitution application, the earlier adjourned winding up application, and all reserved costs, be its costs in the winding up. Catchwords: CORPORATIONS — Winding up — Winding up in insolvency – Adjournment of winding up application — where administrators of company sought adjournment of winding up application to allow further assessment of affairs of company and allow a proposed deed of company arrangement to be considered at second creditors' meeting – where winding up application had previously been adjourned for short period – whether the terms of the proposed deed of company arrangement are such that it is in the interests of the company's creditors that the company continue under administration rather than be wound up. CORPORATIONS — Winding up — Presumption of insolvency — where company failed to comply with creditor's statutory demand — where applicant for the winding up of the company was previously substituted as applicant in the winding up proceedings under s 465B of the Corporations Act 2001 (Cth) – whether the company be wound up under s 459P of the Corporations Act 2001 (Cth). Legislation Cited: - Corporations Act 2001 (Cth), ss 436C, 440A, 553C, 556 - Evidence Act 1995 (NSW), s 136 - Building and Construction Industry Security of Payment Act 1999 (NSW) - Building and Construction Industry (Security of Payment) Act 2009 (ACT) Cases Cited: - Creevey v Deputy Commissioner of Taxation (1996) 19 ACSR 456 - Earthwave Corporation Pty Ltd v Starcom Group Pty Ltd [2011] NSWSC 694 - Re C2C Investments Pty Ltd [2012] NSWSC 1443; (2012) 92 ACSR 266 - Re Denham Constructions Pty Ltd [2016] NSWSC 948 - Re El Zorro Transport Pty Ltd [2013] NSWSC 1082 Category: Principal judgment Parties: A Murray & Sons Pty Limited (Plaintiff) Denham Constructions Pty Limited (Defendant) Representation: Counsel: K J Williams/D Birch (Plaintiff) B F Katekar (Administrator) K J Williams/D Birch (Presbyterian Church (NSW) Property Trust – supporting creditor) J Knackstredt (Hakea Holdings Pty Ltd – supporting creditor) J Neal (BaptistCare NSW & ACT – supporting creditor) G Campbell (Islamic Republic of Pakistan – supporting creditor)