In the matter of Structural Projects Pty Limited [2015] NSWSC 1859

In the matter of Structural Projects Pty Limited [2015] NSWSC 1859

The Amended Grounds of Opposition should not be struck out because the remaining ground invoked a discretionary basis on which the Court might decline to make a winding up order, namely that IMF's alleged breach caused Lend Lease to withhold payment and thereby caused Structural Projects' cash flow problem. The Court could not be satisfied with the required high degree of certainty that the ground would fail, particularly where the exercise of discretion under s 467 depended on the evidence and argument at the final hearing and where unresolved complexities concerning ss 459S and 459J should not be determined on a strike out application.

Jurisdiction
Australia
Judgment Date
26 November 2015
Procedural Posture
Corporations Winding Up Application / Amended Interlocutory Process Seeking Strike Out of Amended Grounds of Opposition to Winding Up
Outcome
Application to strike out the Amended Grounds of Opposition to Winding Up declined.
Legal Topics
['winding Up' 'strike Out Application' 'grounds of Opposition to Winding Up' "creditor's Statutory Demand" "court's Inherent Jurisdiction" 'discretion Under S 467 of the Corporations Act 2001 (cth)']
['corporations' 'civil Procedure'] ['winding Up' 'strike Out Application' 'grounds of Opposition to Winding Up' "creditor's Statutory Demand" "court's Inherent Jurisdiction" 'discretion Under S 467 of the Corporations Act 2001 (cth)']

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Procedural Posture

Corporations Winding Up Application / Amended Interlocutory Process Seeking Strike Out of Amended Grounds of Opposition to Winding Up

Legal Issues

  1. 1 ["Whether the Amended Grounds of Opposition to Winding Up should be struck out in the Court's inherent jurisdiction or under r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW)." 'Whether the notice of grounds of opposition disclosed a basis on which the Court might decline to make a winding up order.' "Whether s 459S of the Corporations Act 2001 (Cth) precluded Structural Projects from relying on matters that could potentially have been raised to set aside a creditor's statutory demand under s 459J."]

Ratio Decidendi

The Amended Grounds of Opposition should not be struck out because the remaining ground invoked a discretionary basis on which the Court might decline to make a winding up order, namely that IMF's alleged breach caused Lend Lease to withhold payment and thereby caused Structural Projects' cash flow problem. The Court could not be satisfied with the required high degree of certainty that the ground would fail, particularly where the exercise of discretion under s 467 depended on the evidence and argument at the final hearing and where unresolved complexities concerning ss 459S and 459J should not be determined on a strike out application.

Court Disposition

Application to strike out the Amended Grounds of Opposition to Winding Up declined.

Orders

  • ['Decline to strike out Amended Grounds of Opposition to Winding Up.' 'Application to strike out the grounds of opposition, as amended to maintain only paragraph 4, dismissed.']