Austin Australia Pty Ltd v De Martin & Gasparini Pty Ltd; Austin Australia Pty Ltd v A & G Scaffolding & Rigging Service Pty Ltd [2007] NSWSC 1238

Austin Australia Pty Ltd v De Martin & Gasparini Pty Ltd; Austin Australia Pty Ltd v A & G Scaffolding & Rigging Service Pty Ltd [2007] NSWSC 1238

Austin Australia Pty Limited was insolvent at all times between 30 June 2003 and 31 December 2003, as demonstrated by persistent cash deficits, inability to meet payment obligations, and established indicators of insolvency. The deficiency was deep-seated and not temporary, confirming continued insolvency throughout the period.

Parties
First Plaintiff: Austin Australia Pty Limited; Second Plaintiffs: Keiran William Hutchison and John Raymond Gibbons; First Defendant: De Martin & Gasparini Pty Limited; Second Defendant: Chadwick Building Systems Pty Limited; Third Defendant: Stegbar Pty Limited; Fourth Defendant: Steelscope Pty Limited; Fifth Defendant: Corkjoint (Aust) Pty Limited; Sixth Defendant: Edwin S. Scott t/as Dalton Plumbing & Roofing Services Pty Limited; Seventh Defendant: Mastercut Concrete; Eighth Defendant: Piling Contractors (Qld) Pty Limited; Ninth Defendant: Steel Foundations Contracting Pty Limited; Tenth Defendant: Sydney Re-Roofing Pty Limited; Eleventh Defendant: Timberite Building Supplies Pty Limited; Twelfth Defendant: Transylvanian Timbers Pty Limited; Thirteenth Defendant: Buildup Interior Pty Limited; Fourteenth Defendant: Conceal Concrete Waterproofing Pty Limited; Fifteenth Defendant: Budget Stairs Pty Limited; First Defendant: A & G Scaffolding and Rigging Pty Limited; Second Defendant: Delta Pty Limited; Third Defendant: Fanelec Pty Limited; Fourth Defendant: Going Up Lifts Pty Limited; Fifth Defendant: IP Corporation Pty Limited; Sixth Defendant: Jones & Jones Master Plumbers Pty Limited; Seventh Defendant: Epic Construction Pty Limited; Eighth Defendant: Murphy, McCarthy & Associates Pty Limited; Ninth Defendant: Northern Structures NSW Pty Limited; Tenth Defendant: San Marcos Formwork Pty Limited; Eleventh Defendant: Specpipe Technology Pty Limited; Twelfth Defendant: Absolute Contracting (NSW) Pty Limited; Thirteenth Defendant: Carron Concrete Services Pty Limited; Fourteenth Defendant: FIFA Group Tiles Pty Limited; Fifteenth Defendant: NDA Engineering Limited; Sixteenth Defendant: Osbuild (Aust) Pty Limited; Seventeenth Defendant: Robinson's Reliable Plumbing Pty Limited; Eighteenth Defendant: F & B Skrobar Engineering Pty Limited; Nineteenth Defendant: The Austral Brick Co Pty Ltd; Twentieth Defendant: Boral Bricks Pty Limited; Twenty First Defendant: Boral Constructions Materials Group Pty Limited; Twenty Second Defendant: Boral Windows Systems Limited; Twenty Third Defendant: Crane Australia Pty Limited; Twenty Fourth Defendant: Higgins Coatings Pty Limited; Twenty Fifth Defendant: Neumann Steel Pty Limited; Twenty Sixth Defendant: Onesteel Trading Pty Limited; Twenty Seventh Defendant: Dean Mann t/as PK Ceilings
Jurisdiction
Australia
Judgment Date
02 November 2007
Procedural Posture
Preference Recovery Proceedings / Determination of Separate Question as to Solvency
Outcome
Separate question answered in favour of plaintiffs: Austin was insolvent for the entire period.
Legal Topics
Winding Up, Unfair Preference, Solvency Definition, Insolvent Transaction
Corporations Law Insolvency Winding Up Unfair Preference Solvency Definition Insolvent Transaction

Case Brief

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Parties

Austin Australia Pty Limited

First Plaintiff

Keiran William Hutchison and John Raymond Gibbons

Second Plaintiffs

De Martin & Gasparini Pty Limited

First Defendant

Chadwick Building Systems Pty Limited

Second Defendant

Stegbar Pty Limited

Third Defendant

Steelscope Pty Limited

Fourth Defendant

Corkjoint (Aust) Pty Limited

Fifth Defendant

Edwin S. Scott t/as Dalton Plumbing & Roofing Services Pty Limited

Sixth Defendant

Mastercut Concrete

Seventh Defendant

Piling Contractors (Qld) Pty Limited

Eighth Defendant

Steel Foundations Contracting Pty Limited

Ninth Defendant

Sydney Re-Roofing Pty Limited

Tenth Defendant

Timberite Building Supplies Pty Limited

Eleventh Defendant

Transylvanian Timbers Pty Limited

Twelfth Defendant

Buildup Interior Pty Limited

Thirteenth Defendant

Conceal Concrete Waterproofing Pty Limited

Fourteenth Defendant

Budget Stairs Pty Limited

Fifteenth Defendant

A & G Scaffolding and Rigging Pty Limited

First Defendant

Delta Pty Limited

Second Defendant

Fanelec Pty Limited

Third Defendant

Going Up Lifts Pty Limited

Fourth Defendant

IP Corporation Pty Limited

Fifth Defendant

Jones & Jones Master Plumbers Pty Limited

Sixth Defendant

Epic Construction Pty Limited

Seventh Defendant

Murphy, McCarthy & Associates Pty Limited

Eighth Defendant

Northern Structures NSW Pty Limited

Ninth Defendant

San Marcos Formwork Pty Limited

Tenth Defendant

Specpipe Technology Pty Limited

Eleventh Defendant

Absolute Contracting (NSW) Pty Limited

Twelfth Defendant

Carron Concrete Services Pty Limited

Thirteenth Defendant

FIFA Group Tiles Pty Limited

Fourteenth Defendant

NDA Engineering Limited

Fifteenth Defendant

Osbuild (Aust) Pty Limited

Sixteenth Defendant

Robinson's Reliable Plumbing Pty Limited

Seventeenth Defendant

F & B Skrobar Engineering Pty Limited

Eighteenth Defendant

The Austral Brick Co Pty Ltd

Nineteenth Defendant

Boral Bricks Pty Limited

Twentieth Defendant

Boral Constructions Materials Group Pty Limited

Twenty First Defendant

Boral Windows Systems Limited

Twenty Second Defendant

Crane Australia Pty Limited

Twenty Third Defendant

Higgins Coatings Pty Limited

Twenty Fourth Defendant

Neumann Steel Pty Limited

Twenty Fifth Defendant

Onesteel Trading Pty Limited

Twenty Sixth Defendant

Dean Mann t/as PK Ceilings

Twenty Seventh Defendant

Procedural Posture

Preference Recovery Proceedings / Determination of Separate Question as to Solvency

Legal Issues

  1. 1 Was Austin Australia Pty Limited insolvent at any time between 30 June 2003 and 31 December 2003? If so, during what periods?

Ratio Decidendi

Austin Australia Pty Limited was insolvent at all times between 30 June 2003 and 31 December 2003, as demonstrated by persistent cash deficits, inability to meet payment obligations, and established indicators of insolvency. The deficiency was deep-seated and not temporary, confirming continued insolvency throughout the period.

Court Disposition

Separate question answered in favour of plaintiffs: Austin was insolvent for the entire period.

Orders

  • Yes, Austin Australia Pty Limited was insolvent at all times during the period commencing 30 June 2003 and ending 31 December 2003.