Dalle Projects Pty Limited v 17 Yarra Street Development Pty Limited

1. The proceeding be dismissed.
2. The Plaintiff pay the Defendant's costs of the proceeding, such costs to be taxed in default of agreement. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

DAVIES J: 1 The originating application is an application to wind up a company on the just and equitable ground. The pleading supporting the application relies upon invoices and statements of account rendered by the plaintiff to the defendant on 7 July 2016 and 9 March 2017 respectively, which are unpaid. It is alleged that each of the invoices was a payment claim for the purposes of the Building and Construction Industry Security of Payment Act 2002 (Vic) ("the SOP Act"). It is further alleged that no response was served and no schedule received in answer to the invoices and the defendant company's banker has already inspected the site and approved the invoices for payment. It is alleged that the directors of the defendant company have refused to instruct the defendant's banker to make the payments and caused the defendant company to carry on its business such that it will not and does not pay its creditors as and when their claims for payment fall due. It is alleged that in the premises the affairs of the defendant company are being conducted in a manner that is oppressive and unfairly prejudicial to the defendant company's members in that it is not in the interests of the defendant company or its members as a whole that the defendant's directors permit the defendant to continue to carry on business in circumstances in which it does not meet its obligations to creditors and in which its debts are not paid. It is also alleged that the defendant company is justly and truly indebted to the plaintiff and the plaintiff seeks judgment against the defendant company in the sum of $316,290.30, being the total of the unpaid invoices and a declaration that the plaintiff is a creditor of the defendant company in respect of that amount. 2 The categories of circumstances under which a Court will make an order for the winding up of a company on the just and equitable ground are not closed, but it is necessary to show at the least that there is something about the conduct of the company's affairs that demonstrates a "'justifiable lack of confidence in the conduct and management of the company's affairs' and thus a risk to the public interest that warrants protection": see Australian Securities and Investments Commission v Uglii Corporation Ltd [2016] FCA 1099; (2016) 116 ACSR 389 at [77]; Australian Securities and Investments Commission v Activesuper Proprietary Limited & Ors (No 2) [2013] FCA 234; (2013) 93 ACSR 189 at [20]-[24]. The relevant principles were helpfully summarised by Gordon J in Australian Securities and Investments Commission v Activesuper Proprietary Limited & Ors (No 2) [2013] FCA 234; (2013) 93 ACSR 189 at [20]-[24]: It has long been established that a company may be wound up where there is "a justifiable lack of confidence in the conduct and management of the company's affairs" and thus a risk to the public interest that warrants protection: Loch v John Blackwood Ltd [1924] AC 783 at 788. In Australian Securities and Investments Commission v ABC Fund Managers (2001) 39 ACSR 443; [2001] VSC 383 at [119] (ABC Fund Managers), Warren J (as her Honour then was) set out three "general fundamental principles": [119] First, there needs to be a lack of confidence in the conduct and management of the affairs of the company … Second, in these types of circumstances it needs to be demonstrated that there is a risk to the public interest that warrants protection. Third, there is a reluctance on the part of the courts to wind up a solvent company. [Citation omitted.] In relation to the first, a lack of confidence may arise where, "after examining the entire conduct of the affairs of the company" the Court cannot have confidence in "the propensity of the controllers to comply with obligations, including the keeping of books, records and documents, and looking after the affairs of the company": Galanopoulos v Moustafa [2010] VSC 380 at [32]; see also Australian Securities Commission v AS Nominees Limited (1995) 62 FCR 504 at 532-3; 133 ALR 1 at 61 2; 18 ACSR 459 at 518-9 (AS Nominees); ABC Fund Managers at [117]-[118]; Australian Securities and Investments Commission v International Unity Insurance Pty Ltd (2004) 22 ACLC 1416; [2004] FCA 1059 at [135]-[139] (International Unity Insurance). There is thus a significant overlap between the matters relevant to the just and equitable ground and the matters which weigh in favour of the exercise of the Court's discretion to appoint a provisional liquidator. For example, matters which indicate "the propensity of the controllers to comply with obligations, including the keeping of books, records and documents, and looking after the affairs of the company" might also demonstrate that "the company's affairs have been conducted in a manner without regard to legal requirements or accepted principles of corporate management". In relation to the second, a risk to the public interest may take several forms. For example, a winding up order may be necessary to ensure investor protection or where a company has not carried on its business candidly and in a straightforward manner with the public: International Unity Insurance at [138]; see also Australian Securities and Investments Commission v Finchley Central Funds Management Ltd [2009] FCA 1110 at [3]. Alternatively, it might be justified in order to prevent and condemn repeated breaches of the law: Kingsley Brown Properties at [96]; see also AS Nominees at FCR 527; ALR 56-7; ACSR 513-4; Australian Securities and Investments Commission v Chase Capital Management Pty Ltd (2001) 36 ACSR 778; [2001] WASC 27 at [75]-[77]. Again, there is an overlap between matters which would pose a risk to the public interest for the purpose of s 461(1)(k) and which are relevant to the appointment of a provisional liquidator. In relation to the third, it has been said that "a stronger case might be required where the company was prosperous, or at least solvent": Kingsley Brown Properties at [96]. Solvency, however, is not a bar to the appointment of a liquidator on the just and equitable ground, particularly where there have been serious and ongoing breaches of the Act: ABC Fund Managers at [124]-[130]. As the authorities show, fraud or misconduct are significant factors relevant to the exercise of the Court's discretion to wind up on the just and equitable ground: see Deputy Commissioner of Taxation v A & S Services Australia Pty Ltd [2017] FCA 437 at [5]; Hipages Group Pty Ltd v Reach Aussie Pty Ltd [2017] FCA 112 at [47]; Royal v El Ali (No 2) [2016] FCA 1156 at [17]; International Hospitality Concepts Pty Ltd v National Marketing Concepts Inc (No 2) (1994) 13 ACSR 368. In the present case the allegation that the affairs of the defendant company are being conducted in a manner that is oppressive and unfairly prejudicial to the defendant company's members is predicated upon the claim that the defendant company is indebted to the plaintiff in an amount of $316, 290.30 and is refusing to pay that amount. 3 The claim, in essence, is a claim for a money debt in circumstances where the SOP Act provides a process for the determination as to whether the amount, in fact, is payable by the defendant or not. That process has not been followed but is sought to be followed in this proceeding in order to establish the very ground upon which it is alleged that it is just and equitable that the company be wound up. It seems to me that the application is misconceived and has no reasonable prospects of success, even if it be established under the SOP Act process that there is an amount of $316, 290.30 owed by the defendant company to the plaintiff. The asserted liability without more would be an insufficient basis on which to satisfy the Court that the defendant company should be wound up on the just and equitable ground. As the authorities establish, the just and equitable ground requires something more to be shown than just the non-payment of a debt, yet to be established: see Australian Securities and Investments Commission v Activesuper Proprietary Limited & Ors (No 2) [2013] FCA 234; (2013) 93 ACSR 189 at [23]. The allegations made in this proceeding do not support a claim for a winding up on the just and equitable ground, and for those reasons the proceeding will be dismissed. I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.