In the matter of JIB Transport Pty Limited

[2015] NSWSC 972

Supreme Court

New South Wales

Medium Neutral Citation:	In the matter of JIB Transport Pty Limited [2015] NSWSC 972
Hearing dates:	18 May 2015
Date of orders:	18 May 2015
Decision date:	18 May 2015
Jurisdiction:	Equity Division - Corporations List
Before:	Brereton J
Decision:	Originating process dismissed; leave granted for company to resolve that it be wound up voluntarily.
Catchwords:	CORPORATIONS – winding up – winding up in insolvency – where company resolves to be wound up voluntarily – requirement of leave where winding up application on foot – where major creditor consents to grant of leave – held, leave granted for company to resolve to be wound up voluntarily.
Legislation Cited:	(CTH) Corporations Act 2001, s 490(1)
Cases Cited:	In the matter of Pendonna Pty Limited [2012] NSWSC 631 Re Horsham Kyosan Engineering Co Ltd [1972] VR 403 Re South Australian Air Conditioning Centre Pty Limited (1977) 2 ACLR 539
Category:	Principal judgment
Parties:	Deputy Commissioner of Taxation (plaintiff) JIB Transport Pty Ltd ACN 113 568 737 (defendant)
Representation:	Counsel: C Bavin (solicitor) (plaintiff) C Latham (defendant)     Solicitors: Hunt & Hunt (plaintiff) Gillis Delaney Lawyers (defendant)
File Number(s):	2015/118406

Judgment (ex tempore)

1. HIS HONOUR: On 21 April 2015, the plaintiff Deputy Commission of Taxation filed an originating process seeking an order that the defendant company JIB Transport Pty Limited be wound up in insolvency and a liquidator appointed. On 27 April 2015, the company purported to resolve that it be wound up voluntarily and Randall Clinton Joubert be appointed liquidator. There was no declaration of solvency, and accordingly the resolution was one for a creditors’ voluntary winding up.

2. (CTH) Corporations Act 2001, s 490(1), provides:

(1) Except with the leave of the Court, a company cannot resolve that it be wound up voluntarily if:

(a) an application for the company to be wound up in insolvency has been filed.

3. It is well established that the leave of the Court contemplated by s 490(1) can be granted retrospectively [Re Horsham Kyosan Engineering Co Ltd [1972] VR 403, 406; Re South Australian Air Conditioning Centre Pty Limited (1977) 2 ACLR 539, 541]. It is a significant consideration that the petitioning creditor in the application for a compulsory winding up does not oppose the grant of leave [In the matter of Pendonna Pty Limited [2012] NSWSC 631, [6]].

4. In this case, the plaintiff Deputy Commissioner of Taxation is overwhelmingly the major creditor of the company and consents to the grant of leave sought. No advantage of a compulsory winding up has been suggested. Mr Joubert has to date not identified any transactions or conduct which would require the supervision of the Court or the invocation of the relation back period. On the other hand, Mr Joubert has taken some steps to progress the winding up, and the retrospective validation of the voluntary winding up and his appointment would avoid some duplication of work and additional expense.

5. Upon the undertaking of Nicholas Dale, Solicitor, to pay the appropriate filing fees, I grant leave to JIB Transport Pty Limited to file an interlocutory process in the form initialled by me dated this day and placed with the papers. I direct that the interlocutory process be returnable instanter. I dispense with further service of the interlocutory process. I note the consent of the plaintiff Deputy Commissioner of Taxation to the relief sought in the interlocutory process. I grant leave to the applicant to file and to read the affidavits of Ian John Primerano of 18 May 2015 and Randall Clinton Joubert of 11 May 2015.

6. The Court orders that:

1. Pursuant to Corporations Act, s 490(1), the company JIB Transport Pty Limited have, and be taken on 27 April 2015 to have had, leave to resolve that it be wound up voluntarily, notwithstanding that an application for it to be wound up in insolvency was filed on 21 April 2015.

2. The originating process be dismissed.

3. The plaintiff's costs fixed in the sum of $2,294 be costs in the winding up of the company, payable after payment of the liquidator's costs and expenses.

4. The costs of the applicant in the interlocutory process be costs in the winding up.

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