Bushreed Pty Ltd, Re [1991] QSC 387

TRANSCRIPT OF PROCEEDINGS :5G '9;/387 State Reporting Bureau, 4th Floor, The Law Courts, George Street, · BRISBANE, 0. 4000 Tel. (07) 227.4360 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Repon:ing Bureau.) ' SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION SHEPHERDSON J No 902 of 1991 IN THE MATTER OF THE CORPORATIONS LAW and IN THE MATTER OF BUSHREED PTY LTD BRISBANE .. DATE 9/12/91 JUDGMENT J. I REVISED COPIES -ISSUED court Reporting Bureau O&te, /J' //2 / I'"'??/ .·. I /f q -- 1 of 5 -- ( 10 20 30 091291 JUDGMENT HIS HONOUR: The Deputy Commissioner of Taxation applied to have the abovenamed company wound up under the provisions of the Corporations Law. The application was filed on 7 November 1·991. It relied on a notice served on 27 September 1991. This statutory notice was not complied with and there was a deemed insolvency. The matter appears to have come before a Master on 3 December 1991 and it was adjourned to today. Mr Henry, from the Australian Government Solicitors Office, appeared for the Deputy Commissioner of Taxation. He read certain material to assist Mr Heyworth-Smith, wh011I shall shortly mention, and the material shows that the only creditor that gave notice of intention to attend the hearing on 3 December was a company known as Barmac Pty Ltd. Mr Heyworth-Smith has appeared for that company today. Mr Henry informed me that he did not wish to proceed with the application because Bushreed Pty Ltd had made arrangements with his client. Mr Heyworth-Smith sought to 40 have his client, Barmac Pty Ltd, substituted as applicant/creditor~ He relied on an affidavit by Philip Stephen McCoy filed on 5 December 1991 .. Mr Curran appeared for the company and he relied on an affidavit of Ronald Vincent McLaughlin and an affidavit of Joanne McLaughlin,, both · so filed today by leave. 60- . ,, It is apparent from the McLaughlins' affidavit~ that the debt of Barmac Pty Ltd is disputed. Mr Heyworth-Smith properly recognises that with the disputed debt the substitution cannot occur. The situation then is that I am r ' ··• •,ter, Old. 2 10 30 -- 2 of 5 -- ( 10 20 30 091291 JUDGMENT left with an application to wind up where the applicant/creditor, The Deputy Commissioner of Taxation, does not wish to proceed and really no other creditor qualifies to be substituted. Whether or not Barmac Pty Ltd will ever become a creditor sufficient to justify presentation of a petition will only be answered by future events. It is, I think, true to say that it was not until late on Friday last, 6 December, that Barmac's solicitors became aware that their debt was disputed. I should, at this stage, say that Mr McCoy in paragraph 14 of his affidavit swore that on 9 September 1991 Barmac's fees were settled in the sum of $24,000 then due and owing by Bushreed Pty Ltd as a result of negotiations between Ronald Vincent McLaughlin on behalf of Bushreed and McCoy for Barmac. He has exhibited to his affidavit a document dated 9 September 1991 coming from Bushreed Pty Ltd purporting to be signed by R J McLaughlin in which R J McLaughlin; as Director of Bushreed, authorise~ certain hotel agents·in Lismore to 40 account to Barmac Pty Ltd for $24,000 out of a deposit held 50 60 on the sale of the hotel property. These are matters, of course, which will have to be investigated and I mention that because the affidavits of the McLaughlins read today say that the authority .to the agents was signed without authority. This is a case where it is not appropriate to stay the application to wind up, nor is it one where this Court can determine the extent of the indebtedness, if any, of r.nvt •. Pcinter, Old. 10 20 30 40 50 60 -- 3 of 5 -- ( 10 20 091291 JUDGMENT Bushreed to Barmac. Mr Heyworth-Smith has referred me to a number of authorities, but I have reached the firm and clear view that t~e proper order to make in this case is to dismiss the application to wind up. ·r ·ao that because, as I have said, there is really no creditor qualified to prosecute the application to wind up. I further have regard to the affidavit of Ronald Vincent McLaughlin filed by leave today, towards the end of which says, in effect, that the company is able to pay most of creditors as and when the debts fall due and pay other creditors on normal credit arrangements. In effect, he he its denies that the company is insolvent and I do not think it right that a petition or an application to_ wind up a company should be allowed to hang over the head of the company 30 indefinitely until a potential creditor, and I say potential advisedly, establishes whether or not it does have a debt properly due and owing by the company. I therefore dismiss the application to wind up the company 40 and refuse Mr Heyworth-Smith' s application to have·. Barmac Pty Ltd substituted as th_e applicant/creditor. On the question of costs I indicated during Mr Heyworth-Smith's submissions that I thought this was a so proper case not to make any order as to costs. Mr Curran opposed this urging, first of all that his client should have the costs of today, and finally seeking part costs. I have already mentioned the agreement alleged by McCoy and 60 t"~- 11'-<!nter, Qld. 10 30 40 5C 6C -- 4 of 5 -- ( 10 20 30 40 50 60 091291 JUDGMENT the authority given to the hotel broker. It is true that it was not until late on 6 December 1991 that Barmac knew the debt was disputed. I do not think it proper for me to make any order as to costs because to do so would mean that I am, in effect, judging" one side's case against that of the other at a time when I have had no opportunity, nor do I wish the opportunity at this stage, to decide on credibility of the various witnesses. In the circumstances therefore, I decline to make any orders \ as to costs. I give you leave, Mr Henry, to withdraw. t.gvt. 0 r~nter, Qld. 5 10 20 30 40 50 60 -- 5 of 5 --