Consolidated Constructions P/L ; In the matter of The Satellite Group Limited [2000] NSWSC 984

Consolidated Constructions P/L ; In the matter of The Satellite Group Limited [2000] NSWSC 984

The defendant (applicant) failed to provide sufficient evidence to rebut the presumption of insolvency or establish solvency regardless of the disputed debt. The threshold requirement under s459S(2) was not met, so leave under s459S(1) to oppose the winding up proceedings was declined.

Parties
Plaintiff/respondent: Consolidated Constructions Pty Limited ACN 008 699 330; Defendant/applicant: The Satellite Group Limited ACN 087 721 079; Supporting Creditor: Harbour Radio Pty Limited trading as Radio 2GB; Solicitor for Supporting Creditors: Peter M Wayne & Associates
Jurisdiction
Australia
Judgment Date
20 October 2000
Procedural Posture
Corporations – Application for Leave to Oppose Winding Up / Ex Tempore Judgment on Application for Leave Under S459 S
Outcome
Application dismissed; leave to oppose under s459S of the Corporations Law declined
Legal Topics
Statutory Demand, Winding Up, Insolvency, Leave to Oppose Winding Up, Enforceability of Debt, Guarantee and Indemnity
Corporations Equity Statutory Demand Winding Up Insolvency Leave to Oppose Winding Up Enforceability of Debt Guarantee and Indemnity

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Parties

Consolidated Constructions Pty Limited ACN 008 699 330

Plaintiff/respondent

The Satellite Group Limited ACN 087 721 079

Defendant/applicant

Harbour Radio Pty Limited trading as Radio 2GB

Supporting Creditor

Peter M Wayne & Associates

Solicitor for Supporting Creditors

Procedural Posture

Corporations – Application for Leave to Oppose Winding Up / Ex Tempore Judgment on Application for Leave Under S459 S

Legal Issues

  1. 1 Whether leave should be granted under s459S of the Corporations Law for the company to oppose a winding up application relying on a statutory demand
  2. 2 Whether the ground sought to be relied on is material to proving solvency as required by s459S(2)
  3. 3 Whether defendant has satisfactorily explained the failure to raise the ground when the statutory demand was served

Ratio Decidendi

The defendant (applicant) failed to provide sufficient evidence to rebut the presumption of insolvency or establish solvency regardless of the disputed debt. The threshold requirement under s459S(2) was not met, so leave under s459S(1) to oppose the winding up proceedings was declined.

Court Disposition

Application dismissed; leave to oppose under s459S of the Corporations Law declined

Orders

  • Amended Notice of Motion dismissed with costs to the respondent
  • Proceedings for winding up adjourned to 6 November 2000