Michael Gregory Jones as Liquidator of SBH Australia Pty Limited (In Liq) & Anor v Joseph Cummins [2018] NSWSC 606

Supreme Court New South Wales

Medium Neutral Citation: Michael Gregory Jones as Liquidator of SBH Australia Pty Limited (In Liq) & Anor v Joseph Cummins [2018] NSWSC 606 Hearing dates: 17, 18 April 2018 Decision date: 09 May 2018 Jurisdiction: Equity Before: White J Decision: (1) Give judgment for the defendant on the plaintiffs' statement of claim. (2) Order that the plaintiffs pay the defendant's costs. (3) Order that the cross-claim be dismissed. (4) Order as between the cross-claimant and the first and second cross-defendants the costs of the cross-claim be costs in the proceedings between the plaintiffs and the defendant. (5) No order as to costs as between the cross-claimant and the third cross-defendant. Catchwords: CORPORATIONS – winding up – insolvency – set-off – Corporations Act 2001 (Cth) s 553C – where question as to quantum of debt owed to company - where discrepancies between MYOB records and financial statements – Corporations Act s 1305 - whether former director could set-off alleged debt – where director intended to take assignment of debt owed by company to a related company but agreement for assignment made between related company and co-director - where debt arose through constructive trust creating an equitable interest at the time of commencement of winding up – whether equitable interest short of equitable ownership could be set-off

CIVIL PROCEDURE – Pleadings – whether s 553C(2) was required to be pleaded – Uniform Civil Procedure Rules, r 14.14(2)(b) – leave to amend not sought Legislation Cited: Bankruptcy Act 1806 (UK), s 3 Bankruptcy Act 1966 (Cth), s 86 Conveyancing Act 1919 (NSW), s 12 Corporations Act 2001 (Cth), ss 513A(e), 553C