In the matter of LML Repairs Pty Limited (No 2) [2020] NSWSC 310

In the matter of LML Repairs Pty Limited (No 2) [2020] NSWSC 310

Although the solicitor's earlier affidavits created a misleading impression that an accountant had been retained and a solvency report was underway, the defendant had paid the costs thrown away and the COVID-19 pandemic created unusual circumstances. The Court therefore looked beyond the solicitor's conduct to the client and allowed one further short period to file and serve any solvency evidence, while refusing the lengthy adjournment sought.

Jurisdiction
Australia
Judgment Date
26 March 2020
Procedural Posture
Application to Wind Up the Defendant or Appoint a Liquidator by Reason of Presumed Insolvency / Further Directions Following Vacation of Hearing to Enable the Defendant to File a Solvency Report
Outcome
Directions made to permit the defendant further time to serve a solvency report.
Legal Topics
['winding Up Application' 'solvency Report' 'statutory Demand' 'adjournment' 'covid 19 Pandemic' 'extension of Time Under S 459 R(2)']
['corporations Law' 'insolvency' 'civil Procedure'] ['winding Up Application' 'solvency Report' 'statutory Demand' 'adjournment' 'covid 19 Pandemic' 'extension of Time Under S 459 R(2)']

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 to Wind Up the Defendant or Appoint a Liquidator by Reason of Presumed Insolvency / Further Directions Following Vacation of Hearing to Enable the Defendant to File a Solvency Report

Legal Issues

  1. 1 ['Whether the defendant should be given further time to file and serve evidence including any expert solvency report.' "Whether the time in which the plaintiffs' winding up application was to be determined should be extended under section 459R(2) of the Corporations Act 2001 (Cth)." "Whether the defendant's request for a lengthy adjournment should be accepted in light of earlier misleading affidavits, payment of thrown-away costs, and the COVID-19 pandemic."]

Ratio Decidendi

Although the solicitor's earlier affidavits created a misleading impression that an accountant had been retained and a solvency report was underway, the defendant had paid the costs thrown away and the COVID-19 pandemic created unusual circumstances. The Court therefore looked beyond the solicitor's conduct to the client and allowed one further short period to file and serve any solvency evidence, while refusing the lengthy adjournment sought.

Court Disposition

Directions made to permit the defendant further time to serve a solvency report.

Orders

  • ["Pursuant to section 459R(2) of the Corporations Act 2001 (Cth) the time in which the plaintiff's application to wind up the defendant is to be determined, is extended up to and including 17 April 2020." 'Defendant to file and serve any evidence upon which it relies in opposition to the orders sought (including any...