International Greetings UK Ltd v Stansfield [2010] NSWSC 1357

The creditor's right of recovery under s 588M(3) is not available unless the company is being wound up at the time recovery is sought; as Oz Wrap is not being wound up and is non-existent, recovery is precluded and the proceedings must be dismissed.

Jurisdiction: Australia
Judgment Date: 24 November 2010
Procedural Posture: Principal Judgment / Preliminary Determination and Dismissal
Outcome: Proceedings dismissed
Legal Topics: ['winding Up' 'insolvent Trading' 'creditor Recovery' 'company Deregistration']

['corporations' 'equity'] ['winding Up' 'insolvent Trading' 'creditor Recovery' 'company Deregistration']

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Procedural Posture

Principal Judgment / Preliminary Determination and Dismissal

Legal Issues

1 ["Whether plaintiff's right of recovery under section 588M(3) of the Corporations Act 2001 is precluded because the company is not being wound up" "Whether plaintiff's right of recovery is precluded because, before proceedings commenced, the liquidator lodged a return with ASIC under section 509(4)"]

Ratio Decidendi

Court Disposition

Proceedings dismissed

Orders

["A separate question is determined: whether the plaintiff's right of recovery under section 588M(3) of the Corporations Act 2001 is precluded by Oz Wrap not being wound up—answered 'Yes'" "A separate question is determined: whether the plaintiff's right of recovery is precluded because the liquidator had lodged a...