Masri Apartments Pty Limited Acn 097 751 669 (in Liquidation) and Aus Constructions Pty Limited Acn 103 449 663 (in Liquidation) v Perpetual Nominees Limited Acn 000 733 700

(2004) 214 ALR 338; [2004] NSWCA 471

NSW Court of Appeal

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Interrogate

Catchwords

1. Corporations
2. › Winding up
3. › Insolvency
4. › Standing to apply
5. › Prospective creditor
6. › Secured creditor
7. › Whether secured prospective creditor requires leave to apply for winding up on ground of insolvency
8. › Corporations Act 2001 (Cth), s 459P(2)
1. Corporations
2. › Winding up
3. › Insolvency
4. › Secured creditor
5. › Whether secured creditor required to surrender security before bringing application to wind up
6. › Corporations Act 2001 (Cth), s 459P(1)(b)
1. Practice and Procedure
2. › Irregularity
3. › Failure to obtain leave before applying for winding up order
4. › Whether court has power to cure defect by granting leave nunc pro tunc
1. Statutory Construction
2. › Corporations Act 2001 (Cth), s 459P
3. › Relationship between sub-sections (1) and (2)
4. › Meaning of 'only' in s 459P(2)(a)

Quick Take

A party who is both a secured creditor and a contingent or prospective creditor falls within s 459P(2) of the Corporations Act 2001 (Cth) and requires leave of the court before applying for a winding up order on the ground of insolvency. The failure to obtain such leave is an irregularity that may be cured by granting leave nunc pro tunc. The policy underlying the leave requirement is that liquidation should not be available to a party whose debt is not presently due unless the court is satisfied of a prima facie case of insolvency.