In the matter of NA Investment Holdings Pty Ltd - Perpetual Nominee Ltd v NA Investment Holdings Pty Ltd [2011] NSWSC 282

In the matter of NA Investment Holdings Pty Ltd - Perpetual Nominee Ltd v NA Investment Holdings Pty Ltd [2011] NSWSC 282

Although there was a serious question to be tried about whether the FFA Trust Property might be insufficient to discharge the debt, NA Investment gave no sufficient explanation for its earlier failure to adduce evidence of the shortfall, having made a conscious election to rely on its own construction of clause 11.18. In any event, NA Investment failed to satisfy the mandatory requirement in s 459S(2) because it did not provide adequate evidence that the proposed ground was material to proving solvency, and it did not displace the statutory presumption of insolvency arising from non-compliance with the statutory demand.

Jurisdiction
Australia
Judgment Date
07 April 2011
Procedural Posture
Application for Winding Up in Insolvency Under S 459 P of the Corporations Act 2001 (cth), With Interlocutory Application for Leave Under S 459 S / Principal Judgment
Outcome
Application for leave under s 459S dismissed; NA Investment Holdings Pty Ltd ordered to be wound up in insolvency.
Legal Topics
['winding Up in Insolvency' 'statutory Demand' 'presumption of Insolvency' 'leave to Oppose Winding Up Application Under S 459 S' 'limitation of Liability Clause' 'proof of Solvency']
['corporations Law' 'insolvency' 'civil Procedure'] ['winding Up in Insolvency' 'statutory Demand' 'presumption of Insolvency' 'leave to Oppose Winding Up Application Under S 459 S' 'limitation of Liability Clause' 'proof of Solvency']

Case Brief

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Procedural Posture

Application for Winding Up in Insolvency Under S 459 P of the Corporations Act 2001 (cth), With Interlocutory Application for Leave Under S 459 S / Principal Judgment

Legal Issues

  1. 1 ['Whether NA Investment should be granted leave under s 459S of the Corporations Act 2001 (Cth) to oppose the winding up application on a ground relied on or available in its earlier s 459G application.' "Whether there was a serious question to be tried that clause 11.18 of the Restated Facility Agreement limited Perpetual's recovery because of a shortfall between the FFA Trust Property and the amount claimed." 'Whether NA Investment gave a sufficient explanation for not adducing evidence of the alleged shortfall in the earlier statutory demand proceedings.' 'Whether the proposed ground was material to proving that NA Investment was solvent for the purposes of s 459S(2).' 'Whether NA Investment displaced the statutory presumption of insolvency arising from non-compliance with the statutory demand.']

Ratio Decidendi

Although there was a serious question to be tried about whether the FFA Trust Property might be insufficient to discharge the debt, NA Investment gave no sufficient explanation for its earlier failure to adduce evidence of the shortfall, having made a conscious election to rely on its own construction of clause 11.18. In any event, NA Investment failed to satisfy the mandatory requirement in s 459S(2) because it did not provide adequate evidence that the proposed ground was material to proving solvency, and it did not displace the statutory presumption of insolvency arising from non-compliance with the statutory demand.

Court Disposition

Application for leave under s 459S dismissed; NA Investment Holdings Pty Ltd ordered to be wound up in insolvency.

Orders

  • ['The application for leave under s 459S of the Corporations Act 2001 (Cth) is dismissed.' 'NA Investment Holdings Pty Ltd is wound up in insolvency.' 'Ginette Dawn Muller and John Gervase Shanahan are appointed as joint liquidators of NA Investment.' "The plaintiff's costs are to be paid out of the winding up."]