In the matter of FW Projects Pty Limited (in liquidation) [2019] NSWSC 892

Supreme Court New South Wales

Medium Neutral Citation: In the matter of FW Projects Pty Limited (in liquidation) [2019] NSWSC 892 Hearing dates: 27 – 28 June 2019; 2 July 2019 Decision date: 16 July 2019 Jurisdiction: Equity - Corporations List Before: Black J Decision: The Plaintiffs' application for interlocutory relief to be dismissed. No order to be made for replacement of liquidators. Direct the parties to bring in orders to give effect to this judgment and as to costs. Catchwords: CORPORATIONS – winding up – application for replacement of liquidators – where incumbent liquidators were appointed a short period ago – where challenge to independence of incumbent liquidators – whether unreasonable for incumbent liquidators not yet to have investigated particular transactions – where solicitors advising incumbent liquidator are a substantial creditor in the winding up and had previously advised the company in liquidation and possibly its directors in respect of matters which would require investigation – where liquidators will retain new solicitors if not removed from office – where plaintiff's proposed replacement liquidators would be funded with limitations on their ability to conduct the liquidation – whether the incumbent liquidators should be replaced. Legislation Cited: - Building and Construction Industry Security of Payment Act 1999 (NSW) - Conveyancing Act 1919 (NSW) s 37A - Corporations Act 2001 (Cth) Pt 5.7B, ss 79, 181, 182, 503, 588FA, 588FB; Sch 2 Insolvency Practice Schedule (Corporations) ss 75-15, 90-15, 90-15(1), 90-15(3) - Insolvency Practice Rules (Corporations) 2016 (Cth) r 75-250 - Real Property Act 1900 (NSW) s 42 - Supreme Court (Corporations) Rules 1999 (NSW) r 2.13 - Supreme Court Act 1970 (NSW) s 66 - Uniform Civil Procedure Rules 2005 (NSW) r 25.3(2) Cases Cited: - Abignano v Wenkart (1998) 9 BPR 16,765 - Advance Housing Pty Ltd (in liq) v Newcastle Classic Developments Pty Ltd (1994) 14 ACSR 230; 12 ACLC 701 - AMP Music Box Enterprises Ltd v Hoffman [2002] BCC 996 - Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 - Barnes v Addy (1874) LR 9 Ch App 244 - Bovis Lend Lease Pty Ltd v Wily [2003] NSWSC 467; (2003) 45 ACSR 612 - Citrix Systems Inc v Telesystems Learning Pty Ltd (in liq) (1998) 28 ACSR 529 - Commissioner of Taxation v Oswal (No 6) [2016] FCA 762 - Deputy Commissioner of Taxation v Peter Sleiman Investments Pty Ltd as trustee of the Sleiman Family Trust [2016] NSWSC 1657 - GDK Projects Pty Ltd v Umberto Pty Ltd (in liq) [2018] FCA 541 - Glegg v Bromley [1912] 3 KB 474; [1911-13] All ER Rep 1138 - Israel Discount Bank Ltd v ACN 078 272 867 Pty Ltd (in liq) (formerly Advance Finances Pty Ltd) [2019] FCAFC 90 - Korda, in the matter of Ten Network Holdings Ltd (admins apptd) (recs and mgrs apptd) [2017] FCA 914 - Marcolongo v Chen [2011] HCA 3; (2011) 242 CLR 546 - Moustach Pty Ltd v Takchi [2015] NSWSC 1013 - Multi-Core Aerators Ltd v Dye [1999] VSC 205 at [48]; (1999) 17 ACLC 1172 - Patel v Lal [2011] NSWSC 603 - Re 77738930144 Pty Ltd (in liq) (formerly Commercial Indemnity Pty Ltd) [2017] NSWSC 452 - Re ACN 151 726 224 Pty Ltd (in liq) previously Ridley Capital Holdings Pty Ltd [2016] NSWSC 1801 - Re Allebart Pty Ltd (in liq) [1971] 1 NSWLR 24 - Re Atlas Construction Group Pty Ltd (in liq) [2018] NSWSC 1189; (2018) 129 ACSR 238 - Re Bellafountain Pty Ltd [2017] NSWSC 391 - Re Biposo Pty Ltd (1995) 17 ACSR 730 - Re Colorado Products Pty Ltd (in prov liq) [2013] NSWSC 1613 - Re Ji Woo International Education Centre Pty Ltd [2019] NSWSC 93; (2019) 134 ACSR 448 - Re Sarflax Ltd [1979] Ch 592 - Re St George Builders Hardware Pty Ltd (1995) 18 ACSR 451; 13 ACLC 1801 - Re St Gregory's Armenian School (in liq) [2012] NSWSC 1215; (2012) 92 ACSR 588 - Re Universal Distributing Co Ltd (in liq) (1933) 48 CLR 171 - SingTel Optus Pty Ltd v Weston [2012] NSWSC 674; (2012) 90 ACSR 225 - Stewart v Atco Controls Pty Ltd (in liq) (2014) 252 CLR 307 - Unifor Office Systems Aust Pty Ltd v Brewer Partnership Pty Ltd [1999] NSWSC 137; (1999) 17 ACLC 642 - Wentworth v Rogers [2004] NSWCA 430 - Westpac Banking Corporation v Bell Group Ltd (in liq) (No 3) [2012] WASCA 157; (2012) 89 ACSR 1 Texts Cited: Australian Restructuring Insolvency and Turnaround Association, Code of Professional Practice (3rd ed, 2014) Category: Principal judgment Parties: Hindmarsh Construction Australia Pty Ltd (First Plaintiff) Bellerive Homes Pty Ltd (Second Plaintiff) FW Projects Pty Limited (in liq) (First Defendant) Trent Andrew Devine and Bradd William Morelli in their capacity as joint and several liquidators of FW Projects Pty Limited (in liq) (Second Defendant) Manassen Holdings Pty Ltd (Third Defendant) Albert Investment Holdings Pty Ltd (acting in its own capacity and as trustee of the Rose Capital Trust) (Fourth Defendant) S F Capital Pty Ltd (acting in its own capacity and as Trustee of the Fowler Superannuation Fund) (Fifth Defendant) Colin Biggers & Paisley Pty Limited (Heard as interested person under rule 2.13 of the Supreme Court (Corporations) Rules 1999 (NSW)) Representation: Counsel: A J McInerney SC/M A Karam (Plaintiffs) A P Cheshire SC (First and Second Defendants) A Shearer (Third Defendant) R Scruby SC (27-28 June 2019)/P Harkin (Solicitor) (2 July 2019) (Interested Person)