CBA Corporate Services (NSW) Pty Limited v Walker and Moloney, in the matter of ZYX Learning Centres Limited

Judgment (ex tempore)

1. HIS HONOUR: The plaintiffs Peter William Marsden and David John Kerr are the liquidators of the Patterson Group Pty Ltd pursuant to a deemed creditors' voluntary winding up which arose when on 25 March 2014 the company failed to execute a Deed of Company Arrangement in compliance with a creditors' resolution at a meeting which held on 3 March 2014 that it do so. The liquidators were at that time the voluntary administrators of the company pursuant to (Commonwealth) Corporations Act 2001, s 436A, having been appointed as such on 24 January 2014, which for relevant purposes is the s 513C day.
2. By originating process filed on 13 May 2014, the liquidators seek an order that the company be wound up by the Court on the just and equitable ground, or alternatively in insolvency, pursuant to Corporations Act, ss 461(1)(k) and 459P, and that they be appointed official liquidators.
3. The company was engaged in the delivery of commercial interior design and project management services. When it went into administration, its only material project was the fit-out of premises for the Australian Energy Market Commission ("AEMC"), which has filed a notice of appearance and intention to oppose the application and has been granted leave to appear on the hearing. For that purpose, the company entered into a minor works contract with AEMC in June 2013 and subsequently into an amendment and reinstatement deed on 23 August 2013. The contract provided for the company to make progress claims on the 25th day of each month, to be assessed and certified by AEMC as principal, and that within fourteen days after receipt of the claim, AEMC was required to procure payment by the landlord or itself pay the amount certified. AEMC was permitted to pay, out of any moneys payable to the company, any moneys owing by the company to a subcontractor, worker or consultant in relation to the execution of any of the work under the contract, such payment to be deemed to have been paid to the contractor under the contract.
4. In December 2013, the company made a payment claim for $277,214 and in January 2014 two further payment claims for $30,399 and $10,072 respectively. On 6 March 2014, AEMC served two payment schedules in which it identified that payments had been made to subcontractors totalling $246,165.