In the matter of Nostalgia Motorcycles Pty Limited (in liquidation) [2015] NSWSC 2036

In the matter of Nostalgia Motorcycles Pty Limited (in liquidation) [2015] NSWSC 2036

The Court terminated the winding up because the further evidence, particularly the accountant's verification of the Company's financial records and cash flow forecast, affirmatively established the Company's solvency; the interests of creditors, future creditors, contributories and the liquidator were sufficiently protected by payment arrangements and undertakings; the petitioning creditor's debt and costs of the winding up application would be paid; and no public interest or commercial morality concern justified continuation of the winding up. The creditor was not entitled to costs of its appearance under r 2.13 because the appearance was not special, unusual or exceptional.

Jurisdiction
Australia
Judgment Date
11 December 2015
Procedural Posture
Application Under S 482 of the Corporations Act 2001 (cth) to Terminate a Winding Up / Principal Judgment; Ex Tempore Judgment
Outcome
Orders made for termination of winding up. Orders to be entered forthwith.
Legal Topics
['winding Up' 'termination of Winding Up' 'company Solvency' "liquidator's Remuneration" "creditor's Costs" 'supreme Court (corporations) Rules 1999 (nsw), R 2.13']
['corporations Law' 'equity'] ['winding Up' 'termination of Winding Up' 'company Solvency' "liquidator's Remuneration" "creditor's Costs" 'supreme Court (corporations) Rules 1999 (nsw), R 2.13']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application Under S 482 of the Corporations Act 2001 (cth) to Terminate a Winding Up / Principal Judgment; Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether the winding up of Nostalgia Motorcycles Pty Limited (in liquidation) should be terminated under s 482 of the Corporations Act 2001 (Cth).' 'Whether the Company had established solvency by sufficient evidence, including external verification of its financial records and cash flow position.' 'Whether the interests of creditors, future creditors, contributories and the liquidator were protected if the Company was released from winding up.' 'Whether the creditor appearing under r 2.13 of the Supreme Court (Corporations) Rules 1999 (NSW) should receive costs of its appearance on the application.']

Ratio Decidendi

The Court terminated the winding up because the further evidence, particularly the accountant's verification of the Company's financial records and cash flow forecast, affirmatively established the Company's solvency; the interests of creditors, future creditors, contributories and the liquidator were sufficiently protected by payment arrangements and undertakings; the petitioning creditor's debt and costs of the winding up application would be paid; and no public interest or commercial morality concern justified continuation of the winding up. The creditor was not entitled to costs of its appearance under r 2.13 because the appearance was not special, unusual or exceptional.

Court Disposition

Orders made for termination of winding up. Orders to be entered forthwith.

Orders

  • ['The undertaking given by Mr Browne recorded in the schedule to the short minutes of order was noted.' 'Orders were made in accordance with the short minutes of order initialled by the Court and placed in the file.' 'The orders were ordered to be entered forthwith.']