In the matter of Bitar Pty Ltd [2015] NSWSC 2158

In the matter of Bitar Pty Ltd [2015] NSWSC 2158

As the winding up application is not a proceeding for the recovery of legal costs, the prohibition in s 355 of the Legal Profession Act 2004 does not apply; no sufficient reason for stay or adjournment is established, and there is nothing to rebut the presumption of insolvency arising from failure to comply with statutory demand; winding up order is therefore made.

Jurisdiction
Australia
Judgment Date
12 October 2015
Procedural Posture
Corporations Winding Up Application / Final Determination Winding Up Order
Outcome
Winding up order made
Legal Topics
['winding Up in Insolvency' 'statutory Demand' 'legal Costs Assessment' 'adjournment Application' 'debt Recovery Proceedings']
['corporations Law' 'insolvency' 'legal Profession'] ['winding Up in Insolvency' 'statutory Demand' 'legal Costs Assessment' 'adjournment Application' 'debt Recovery Proceedings']

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Procedural Posture

Corporations Winding Up Application / Final Determination Winding Up Order

Legal Issues

  1. 1 ['Whether winding up proceedings for failure to comply with a statutory demand based on legal costs should be stayed pending costs assessment under legal profession legislation' 'Whether such proceedings are proceedings for the recovery of legal costs within the meaning of the Legal Profession Act 2004, s 355' 'Whether adjournment ought to be granted due to pending related proceedings or pending costs assessment' 'Applicability of Corporations Act 2001, s 459S to disputes about debt in opposition to winding up']

Ratio Decidendi

As the winding up application is not a proceeding for the recovery of legal costs, the prohibition in s 355 of the Legal Profession Act 2004 does not apply; no sufficient reason for stay or adjournment is established, and there is nothing to rebut the presumption of insolvency arising from failure to comply with statutory demand; winding up order is therefore made.

Court Disposition

Winding up order made

Orders

  • ['The defendant be wound up in insolvency and Anthony Warner of CRS Insolvency Services be appointed liquidator of the defendant' "The plaintiff's costs be paid out of the assets of the defendant" 'Orders not to be entered before 20 October 2015']