Expile Pty Limited v Jabb's Excavations Pty Ltd & Anor (No 2) [2004] NSWSC 301

Expile Pty Limited v Jabb's Excavations Pty Ltd & Anor (No 2) [2004] NSWSC 301

The adjournment is granted to afford the company one last opportunity to remove the obstacle to the continuation of the Deed—namely, payment of Expile's costs in full by a set date—or else evidence of a reasonable prospect of payment, as denying this would unnecessarily prejudice creditors if satisfaction of debts is reasonably possible. No further unnecessary delay will be permitted.

Parties
Plaintiff: Expile Pty Limited; First Defendant: Jabb's Excavations Pty Ltd; Second Defendant: Peter Ngan
Jurisdiction
Australia
Judgment Date
13 April 2004
Procedural Posture
Corporations Deed of Company Arrangement Termination Winding Up / Adjournment Pending Final Orders After Reasons Delivered
Outcome
Adjournment granted until 16 April 2004 for Defendants to pay plaintiff's costs or provide sufficient evidence of ability to do so; time for winding up extended; costs of the day and of the proceedings reserved.
Legal Topics
Deed of Company Arrangement, Winding Up, Adjournment, Company Solvency
Corporations Deed of Company Arrangement Winding Up Adjournment Company Solvency

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 2 Authorities cited 2 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Expile Pty Limited

Plaintiff

Jabb's Excavations Pty Ltd

First Defendant

Peter Ngan

Second Defendant

Procedural Posture

Corporations Deed of Company Arrangement Termination Winding Up / Adjournment Pending Final Orders After Reasons Delivered

Legal Issues

  1. 1 Whether an adjournment should be granted to allow the company to pay the plaintiff's debt in full before the Deed of Company Arrangement is terminated and the company wound up.

Ratio Decidendi

The adjournment is granted to afford the company one last opportunity to remove the obstacle to the continuation of the Deed—namely, payment of Expile's costs in full by a set date—or else evidence of a reasonable prospect of payment, as denying this would unnecessarily prejudice creditors if satisfaction of debts is reasonably possible. No further unnecessary delay will be permitted.

Court Disposition

Adjournment granted until 16 April 2004 for Defendants to pay plaintiff's costs or provide sufficient evidence of ability to do so; time for winding up extended; costs of the day and of the proceedings reserved.

Orders

  • Proceedings stood over to 10.00am on 16 April 2004 for further hearing.
  • Time for winding up extended to 4.00pm on 16 April 2004 pursuant to s.459R(1) Corporations Act.