In the matter of Denham Constructions Pty Limited [2016] NSWSC 948

In the matter of Denham Constructions Pty Limited [2016] NSWSC 948

A Murray & Sons Pty Ltd is a creditor with standing to be substituted under s 465B. The refusal to accept payment tendered by a secured creditor does not unreasonably deprive A Murray of that status nor provide a discretionary ground to refuse substitution. Presumption of insolvency continues for purposes of the winding up application; no evidence justifies withholding the substitution order.

Jurisdiction
Australia
Judgment Date
20 June 2016
Procedural Posture
Interlocutory Process Substitution of Applicant in Winding Up Proceedings / Application for Substitution of Applicant Prior to Determination of Substantive Winding Up
Outcome
Applicant (A Murray & Sons Pty Ltd) substituted as applicant in winding up proceedings; costs reserved; note on status for winding up purposes under s 459P and s 465A.
Legal Topics
['winding Up' 'creditor Rights' 'substitution of Applicant' 'corporate Insolvency']
['corporations Law'] ['winding Up' 'creditor Rights' 'substitution of Applicant' 'corporate Insolvency']

Case Brief

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Procedural Posture

Interlocutory Process Substitution of Applicant in Winding Up Proceedings / Application for Substitution of Applicant Prior to Determination of Substantive Winding Up

Legal Issues

  1. 1 ['Whether A Murray & Sons Pty Ltd should be substituted as applicant in the winding up proceedings under s 465B of the Corporations Act 2001 (Cth)' 'Whether the refusal of tender of payment by a secured creditor was unreasonable and should preclude substitution' 'Whether A Murray & Sons Pty Ltd had standing as a creditor' 'Whether any discretionary grounds supported or opposed substitution']

Ratio Decidendi

A Murray & Sons Pty Ltd is a creditor with standing to be substituted under s 465B. The refusal to accept payment tendered by a secured creditor does not unreasonably deprive A Murray of that status nor provide a discretionary ground to refuse substitution. Presumption of insolvency continues for purposes of the winding up application; no evidence justifies withholding the substitution order.

Court Disposition

Applicant (A Murray & Sons Pty Ltd) substituted as applicant in winding up proceedings; costs reserved; note on status for winding up purposes under s 459P and s 465A.

Orders

  • ['A Murray & Sons Pty Limited be substituted as applicant pursuant to s 465B of the Corporations Act 2001 (Cth).' 'Costs of and incidental to this application be reserved.' 'From the date of this order, A Murray & Sons Pty Limited is to be treated as a person applying under s 459P for Denham Constructions Pty...