Hosking v Extend N Build Pty Ltd [2018] NSWCA 149

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Hosking v Extend N Build Pty Ltd [2018] NSWCA 149 Hearing dates: 1 March 2018 Date of orders: 13 July 2018 Decision date: 13 July 2018 Before: Bathurst CJ at [1]; Beazley P at [123]; Gleeson JA at [124] Decision: (1) In relation to the first to fifth respondents:

(a) Dismiss the appeal.

(b) Order the appellants to pay the first to fifth respondents' costs of the appeal.

(2) In relation to the sixth respondent:

(a) Allow the appeal.

(b) Set aside the orders made by the primary judge dismissing the appellants' claim against the sixth respondent.

(c) Direct the appellants and the sixth respondent to bring in short minutes of order to give effect to this judgment within 7 days.

(d) Order the sixth respondent to pay the appellants' costs of the appeal against it and have a certificate under the Suitors Fund Act 1951 (NSW) if eligible. Catchwords: CORPORATIONS – Winding up – Voidable transactions – unfair preference – Corporations Act 2001 (Cth) s 588FA(1) – third party paid creditor of debtor in response to industrial pressure – whether payment was a "transaction" to which the debtor was a party – whether the payment was received "from" the debtor

CORPORATIONS – Winding up – Voidable transactions – statutory defence – Corporations Act 2001 (Cth) – s 588FG(2) – creditor received payment from debtor during relation-back period – whether creditor had reasonable grounds for suspecting that debtor was insolvent Legislation Cited: Corporations Act 2001 (Cth) Suitors Fund Act 1951 (NSW) Cases Cited: Burness v Supaproducts Pty Ltd (2009) 259 ALR 339; [2009] FCA 893 Federal Commissioner of Taxation v Kassem (2012) 205 FCR 156; [2012] FCAFC 124 Lumbers v W Cook Builders Pty Ltd (in liq) (2008) 232 CLR 635; [2008] HCA 27 Nilant v Plexipack Packaging Services Pty Ltd (1996) 21 ACSR 428 Re Alsafe Security Products Pty Ltd (in liq) [2016] NSWSC 428 Re Emanuel (No 14) Ltd (in liq) (1997) 147 ALR 281 Re Imobridge Pty Ltd (in liq) [2000] 2 Qd R 280; [1999] QSC 342 Woodgate v National Associates International BV [2007] NSWSC 1260 Category: Principal judgment Parties: Philip Raymond Hosking, in his capacity as joint and several liquidator of Evolvebuilt Contracting Pty Ltd (in liquidation) (first appellant) David Anthony Hurst, in his capacity as joint and several liquidator of Evolvebuilt Contracting Pty Ltd (in liquidation) (second appellant) Evolvebuilt Contracting Pty Ltd (in liquidation) (third appellant) Extend N Build Pty Ltd (first respondent) Build Projects Pty Ltd (second respondent) Consek Pty Ltd (third respondent) Thehai Trinh (fourth respondent) Truthful Constructions Pty Ltd (fifth respondent) Kennico Interiors Pty Ltd (sixth respondent) Representation: Counsel: M Pesman SC with C Alexander (appellants) A G Martin (first, second, third, fifth and sixth respondents) J Cohen (fourth respondent)