In the matter of Edifice Australia Pty Limited [2019] NSWSC 1215

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Edifice Australia Pty Limited [2019] NSWSC 1215 Hearing dates: 9 August 2019 Decision date: 09 August 2019 Jurisdiction: Equity - Corporations List Before: Rees J Decision: Adjournment application refused. Defendant company wound up in insolvency. Catchwords: CORPORATIONS — Winding up — Application to adjourn winding up proceedings pending outcome of administration — Administrators appointed on eve of hearing of winding up application — Evidence shows company clearly insolvent — Evidence of administrator inconsistent with solvency report — Nascent DOCA proposal — Test in s 440A(2) not satisfied — Adjournment refused.

CORPORATIONS — Winding up — Winding up in insolvency — Where presumption of insolvency from failure to comply with statutory demand — Company's evidence far short of that required — Presumption not displaced — Winding up order made. Category: Principal judgment Parties: AFM Masonry Pty Limited (Plaintiff) Edifice Australia Pty Limited (Defendant) Representation: Counsel: Mr M Fernandez (Plaintiff) Mrs C Perry, solicitor (Defendant)

Solicitors: Sachs Gerace Broome (Plaintiff) Pure Legal (Defendant) File Number(s): 2019/46938

Judgment 1. HER HONOUR: This matter is listed for hearing today on an application under section 459A of the Corporations Act 2001 (Cth) to appoint a liquidator to the defendant company, Edifice Australia Pty Limited, on the grounds of insolvency. Edifice is a builder. The plaintiff is AFM Masonry Pty Limited. 2. This morning, Edifice sought leave to move on an interlocutory process filed at about 8.30 pm last night seeking to adjourn the hearing because Gavin Moss was appointed as an administrator to the company, apparently yesterday afternoon. The purpose of the adjournment was to enable a section 439A report to be prepared and, potentially, a first meeting of creditors to be held. 3. Edifice, by its administrator, does not necessarily accept that, if I refuse to grant the adjournment, that it is insolvent and a liquidator should be appointed, so it will be necessary to deal, firstly, with the application for an adjournment and then, if necessary, to proceed to consider whether Edifice is solvent.