In the matter of Eurool Traditional Owners Aboriginal Corporation [2018] NSWSC 1485

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Eurool Traditional Owners Aboriginal Corporation [2018] NSWSC 1485 Hearing dates: 19 April 2018 Decision date: 19 April 2018 Jurisdiction: Equity - Corporations List Before: Black J Decision: Order made winding up the Defendant in insolvency. The Plaintiff's costs of and incidental to the winding up application, as agreed or as assessed, be costs in the winding up. Catchwords: CORPORATIONS – winding up – application based on failure to meet creditor's statutory demand – whether company should be wound up Legislation Cited: - Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) ss 120.1 526.1, 526.5, 526.15, 526.35 - Corporations Act 2001 (Cth) s 459E - Evidence Act 1995 (NSW) s 160 Category: Procedural and other rulings Parties: Menzies Pumps & Irrigation Pty Ltd (Plaintiff) Eurool Traditional Owners Aboriginal Corporation (Defendant) Representation: Counsel: R. Notley (Plaintiff)

Solicitors: Wilsons Solicitors (Plaintiff) File Number(s): 2018/78491

Judgment – ex tempore (revised 23 april 2018)

Nature of the application and evidence 1. By Originating Process filed on 10 March 2018, the Plaintiff, Menzies Pumps & Irrigation Pty Ltd ("MPI"), applies to wind up Eurool Traditional Owners Aboriginal Corporation ("Corporation") under s 526.15 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) ("ATSI Act"). That application is in the nature of a winding up on the ground of insolvency, in reliance on an unsatisfied creditor's statutory demand for the payment of debt dated 1 February 2018, which in turn identifies the debt claimed as a judgment debt arising from a judgment in the Local Court of New South Wales in the amount of $68,449.69. A sealed copy of that judgment is in evidence. I should briefly refer to the evidence on which MPI relies, before turning to the statutory scheme to which Mr Notley, who appears for MPI, draws attention. 2. An affidavit of Mr Geoffrey Menzies, dated 8 March 2018, indicates that he is the sole director of MPI and confirms that, as at 28 February 2018, the Corporation was indebted to MPI in the amount claimed which was then due and payable, and also confirms that at the time of the making of the affidavit, immediately before the winding up application was filed, the amount claimed remained due and payable by the Corporation to MPI. MPI also relies on a corporation extract annexed to Mr Menzies' affidavit which indicates that MPI is a small corporation, although it has a main place of business and a registered office address described by reference to a street address and post office box in Collarenebri in New South Wales. That corporation extract also identifies a contact person, as required for a small corporation, who is named and whose residential address is given at the same address, but by reference to what is apparently a street address rather than the post office box address. I will return to further evidence which deals with that matter below. 3. An affidavit of Mr Wilson, MPI's solicitor, dated 8 March 2018 confirms service of the creditor's statutory demand by post, and the annexed letter was addressed to the street address and post office box which is recorded as the Corporation's main place of business and registered office, and the street address part of which is recorded as the address of the contact officer of the Corporation. An affidavit of Mr Wilson dated 23 March 2018 confirms service of the Originating Process seeking to wind up the Corporation, again by ordinary prepaid mail, and again addressed to the house address and post office box recorded as the Corporation's main place of business and registered office and also, in respect of the house address, the address of the contact person for the Corporation. An affidavit of service of Mr Wilson dated 5 April 2018 refers to notification of the application to the office of the Registrar of Indigenous Corporations and to service of a liquidator's consent to act and notice of application for the winding up order on the Corporation, in the same manner as service of previous documents had been effected by post. 4. A further affidavit of Mr Wilson dated 9 April 2018 addresses the fact that the address of the Corporation's registered office and the main place of business includes, as I noted above, both a house address and a post office box address. Mr Wilson explains that matter, by reference to his knowledge, as a practitioner in Dubbo, New South Wales, that Collarenebri is a small town in north western New South Wales, which does not have a postal delivery service, but that mail is instead there delivered to the Collarenebri Post Office and residents collect their mail from the post office. It follows that, in practical terms, a reference to a house address and a reference to a post box address have corresponding effect, because mail would not be delivered to a house address but is instead made available for collection from the relevant post office box. Mr Wilson also refers to failed attempts made to deliver correspondence and documents to an email address for the Corporation. By a further affidavit dated 12 April 2018, Mr Wilson addresses further aspects of service and addresses questions of the cost of the proceedings. A consent of liquidator is in evidence.