In the matter of Epic Mining Pty Limited [2019] NSWSC 890

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Epic Mining Pty Limited [2019] NSWSC 890 Hearing dates: 12 April 2019 Decision date: 12 April 2019 Jurisdiction: Equity - Corporations List Before: Black J Decision: Order that the Defendant be wound up in insolvency. Catchwords: CORPORATIONS – application for winding up – where employee claims have not been controverted by company. Legislation Cited: - Corporations Act 2001 (Cth) ss 459A, 459P, 467 Cases Cited: - Expile Pty Ltd v Jabb's Excavations Pty Ltd [2003] NSWSC 699; (2003) 46 ACSR 446 - TS Recoveries Pty Ltd v Sea-Slip Marinas (Aust) Pty Ltd [2007] NSWSC 1074; (2007) 25 ACLC 1371 Category: Principal judgment Parties: Samuel Tarabori (First Plaintiff) Thomas Belcher (Second Plaintiff) Hilton Lisle Cuthell (Third Plaintiff) Frank Vaquera (Fourth Plaintiff) Bobo Tang (Fifth Plaintiff) Jason Darmanin (Sixth Plaintiff) Epic Mining Pty Limited (Defendant) Representation: Counsel: J T Johnson (Plaintiffs) P M Barham (Defendant)

Solicitors: MCW Lawyers (Plaintiffs) VL Macri Lawyers (Defendant) File Number(s): 2018/351696

Judgment – ex tempore (revised 12 april 2019) 1. By Originating Process filed on 15 November 2018, Mr Samuel Tarabori and others, who appear to be former employees of Epic Mining Pty Limited (rec and mgr apptd) ("Epic"), in its capacity as the trustee of a trust, apply for an order that Epic be wound up in insolvency under ss 459A and 459P of the Corporations Act 2001 (Cth) and that a liquidator be appointed. A consent of that liquidator is in evidence. Section 459A of the Corporations Act relevantly provides that, on an application under s 459P, the Court may order that an insolvent company be wound up in insolvency. Section 459P in turn provides that, relevantly, a creditor may apply to the Court for a company to be wound up in insolvency. Each of Mr Tarabori and the other Plaintiffs contend that they are creditors of Epic, at least in respect of unpaid wages and annual leave, for amounts to which I will refer. 2. It is, of course, commonplace for applications for winding up to be based on the issue of a creditor's statutory demand which, if not paid or set aside, will give rise to a presumption of insolvency. However, it has always been open to a creditor to proceed without a creditor's statutory demand, by affirmatively establishing a company's insolvency, involving an inability by it to pay its debts as and when they fall due.