Shaw (as liquidator of ACN 166 338 138 Pty Ltd (in liq) (formerly Structural Projects Pty Ltd) v KPR Recruitment Australia Pty Ltd [2017] NSWSC 539

Supreme Court New South Wales

Medium Neutral Citation: Shaw (as liquidator of ACN 166 338 138 Pty Ltd (in liq) (formerly Structural Projects Pty Ltd) v KPR Recruitment Australia Pty Ltd [2017] NSWSC 539 Hearing dates: 24 April 2017 Decision date: 05 May 2017 Before: Gleeson JA Decision: (1) Grant liberty to the plaintiff to apply within 14 days of these reasons for leave to re-open the plaintiff's case to adduce further evidence on the issue of insolvency. (2) Direct that notice of any application to re-open the plaintiff's case be served on the defendant. (3) Note that if the plaintiff does not exercise the liberty to apply within the time stated in order 1, the Court will make an order that the plaintiff's interlocutory process filed 20 March 2017 be dismissed with no order as to costs. Catchwords: CORPORATIONS – external administration – application to recover monies paid to creditor pursuant to a purported voidable transaction within the meaning of Corporations Act, s 588FE – whether payment to creditor voidable as unfair preference and insolvent transaction within meaning of Corporations Act, ss 588FA and 588FC – where presumption of insolvency under s 588E(4) on basis that company failed to keep adequate books and records not available because liquidator's claim not against a related entity of the company – whether plaintiff established on balance of probabilities that transaction was made at a time when the company was insolvent. Legislation Cited: Bankruptcy Act 1966 (Cth), s 122 Corporations Act 2001 (Cth), ss 9, 95A, 286(1), 459A, 513A, 588E(4), 588E(7), 588FA, 588FC, 588FE, 588FF; Div 1A, Pt 5.6 Cases Cited: ASIC v Plymin and Ors (2003) 46 ACSR 126; [2003] VSC 123 Lewis v Doran [2004] NSWSC 608; (2004) 50 ACSR 175 Lewis (as liq of Doran Constructions Pty Ltd (in Liq)) v Doran and Others (2005) 219 ALR 555; [2005] NSWCA 243 M & R Jones Shopfitting Co Pty Ltd v National Bank of Australasia Ltd (1983) 68 FLR 282; (1983) 7 ACLR 445 Pegulan Floor Covering Pty Ltd V Carter (1997) 24 ACSR 651 Quick v Stoland Pty Ltd (1998) 157 ALR 615; 29 ACSR 130 Re Ashington Bayswater Pty Ltd [2013] NSWSC 1008 Re Emanuel (No 14) Pty Ltd (in liq) (1997) 24 ACSR 292; [1997] FCA 667 Re Structural Projects Pty Ltd [2015] NSWSC 1859 Sheahan v Carrier Air Conditioning Pty Ltd and Campbell (1997) 189 CLR 407; [1997] HCA 37 Southern Cross Interiors Pty Ltd (in liq) v Deputy Commissioner of Taxation (2001) 53 NSWLR 213; [2001] NSWSC 621 Sutherland & Another (as joint liquidators of Australian Coal Technology) v Hanson Construction Materials Pty Ltd and Others (2009) 254 ALR 650; [2009] NSWSC 322 Walsh as liquidator of Thompson Land Ltd (receiver and manager appointed) v Terranova (1994) 14 ACSR 432 Welcome Homes Real Estate Pty Limited v Ziade Investments Pty Limited [2007] NSWCA 167 Texts Cited: McPherson's Law of Company Liquidation (5th ed 2006, Thomson Lawbook Co) Category: Principal judgment Parties: James Alexander Shaw as liquidator of ACN 166 338 183 Pty Ltd (in liq) (Plaintiff) KPR Recruitment Aust Pty Ltd (Defendant) Representation: Counsel: Mr D Allen (Plaintiff)