Re Brew Still Pty Ltd (admin apptd) [2023] NSWSC 256

Re Brew Still Pty Ltd (admin apptd) [2023] NSWSC 256

The Court was not satisfied under s 440A(2) that continuing the voluntary administration for about a month would be in creditors' interests. The administrator had been appointed only three days before the winding up hearing, the proposed deed or restructuring was not established by evidence, funding and asset values were uncertain, and further administration costs risked eroding returns while exposing creditors, including the Deputy Commissioner of Taxation, to further unpaid liabilities. The presumption of insolvency arising from non-compliance with the statutory demand was not displaced, so Brew Still was wound up in insolvency and the plaintiffs' nominated liquidator was appointed.

Jurisdiction
Australia
Judgment Date
17 March 2023
Procedural Posture
Winding Up Application in Insolvency and Application to Adjourn Winding Up Application Under S 440 A(2) of the Corporations Act 2001 (cth) / Hearing of Winding Up Application and Interlocutory Application for Adjournment
Outcome
Application to adjourn the winding up proceeding dismissed; Brew Still Pty Ltd wound up in insolvency; Mr Andrew Barnden appointed liquidator.
Legal Topics
['winding Up in Insolvency' 'voluntary Administration' 'adjournment Under S 440 A(2)' "creditor's Statutory Demand" 'presumption of Insolvency' 'appointment of Liquidator' 'costs in Winding Up']
['corporations Law' 'insolvency'] ['winding Up in Insolvency' 'voluntary Administration' 'adjournment Under S 440 A(2)' "creditor's Statutory Demand" 'presumption of Insolvency' 'appointment of Liquidator' 'costs in Winding Up']

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Procedural Posture

Winding Up Application in Insolvency and Application to Adjourn Winding Up Application Under S 440 A(2) of the Corporations Act 2001 (cth) / Hearing of Winding Up Application and Interlocutory Application for Adjournment

Legal Issues

  1. 1 ['Whether the winding up application should be adjourned under s 440A(2) of the Corporations Act 2001 (Cth) because Brew Still was under voluntary administration.' "Whether it was in the interests of Brew Still's creditors for the company to continue under administration rather than be wound up." "Whether the presumption of insolvency arising from non-compliance with a creditor's statutory demand had been displaced." 'Whether a winding up order should be made and who should be appointed liquidator.' 'Whether costs of the winding up application should be payable in the winding up under s 466(2) of the Corporations Act 2001 (Cth).']

Ratio Decidendi

The Court was not satisfied under s 440A(2) that continuing the voluntary administration for about a month would be in creditors' interests. The administrator had been appointed only three days before the winding up hearing, the proposed deed or restructuring was not established by evidence, funding and asset values were uncertain, and further administration costs risked eroding returns while exposing creditors, including the Deputy Commissioner of Taxation, to further unpaid liabilities. The presumption of insolvency arising from non-compliance with the statutory demand was not displaced, so Brew Still was wound up in insolvency and the plaintiffs' nominated liquidator was appointed.

Court Disposition

Application to adjourn the winding up proceeding dismissed; Brew Still Pty Ltd wound up in insolvency; Mr Andrew Barnden appointed liquidator.

Orders

  • ['Brew Still Pty Ltd be wound up in insolvency.' 'Mr Andrew Barnden of Rodgers Reidy (New South Wales) Pty Ltd be appointed as liquidator.' "The Plaintiffs' costs of the winding up application, and the Deputy Commissioner of Taxation's costs of the winding up application, excluding the costs of the adjourned...