In the matter of Nighthawks Aviation Operations Pty Ltd (No 2)

Legislation Cited: Corporations Act 2001 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited: Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6
In the matter of GHS Safety Products Pty Ltd [2019] NSWSC 668
Smith v New South Wales Bar Association (1992) 176 CLR 256; [1992] HCA 36
Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471

Texts Cited: N.A.

Category: Consequential orders

Parties: Jen Group Pty Ltd (plaintiff)
Nighthawks Aviation Operations Pty Ltd (defendant)

Representation: Counsel:
N Bailey (plaintiff)
M R Davis (defendant)
Solicitors:
Keypoint Law (plaintiff)
FSC Law (defendant)

File Number(s): 2025/308171

Publication restriction: N.A.

JUDGMENT – EX TEMPORE (REVISED FROM THE TRANSCRIPT)

1. On 2 March 2026, I announced orders in this matter and gave reasons for those orders. Those orders were:

2. Nighthawks Aviation Operations Pty Ltd ACN 168 769 926 be wound up.

3. Scott Darren Pascoe and Glenn Ian Livingstone of WLP Restructuring Pty Ltd be appointed as joint and several liquidators of Nighthawks Aviation Operations Pty Ltd ACN 168 769 926.

4. The costs of the plaintiff be paid out of the assets of the defendant.

5. The orders have not been formally entered. Entry of orders is governed by r 36.11 of the Uniform Civil Procedure Rules 2005 (NSW). This rule relevantly provides that any judgment or order of the Court is to be entered and that unless the Court orders otherwise, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. That has not yet occurred in this case.

6. The defendant made an oral application today (foreshadowed yesterday) that I should not enter the orders and that, instead, the Court should order that the plaintiff’s application be dismissed. The basis for the application is that after I delivered my reasons yesterday, an amount of $84,626.65 was paid into the defendant's solicitor's trust account. That figure, I was informed, was arrived at by the amount of the statutory demand, being $34,626.65, plus a further $50,000 which would represent payment, at least in part, towards the legal costs of plaintiff. I was told that the defendant was unaware of the plaintiff's actual legal costs and that it was prepared to pay an amount to cover those costs, at least on the ordinary basis.

7. The Court has power under UCPR r 36.16 to vary an order if a notice of motion for the variation is filed before the entry of the order. In this case, no notice of motion was filed but an application was made orally. It was not suggested that I should not entertain the application because it was made orally. I accept that the Court has power to vary the orders that I announced yesterday in open Court prior to the entry of those orders.

8. The relevant principles that apply in this context are set out in the reasons of Mason CJ in Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6. His Honour stated as follows (at 303):

However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases.

I was also taken to the decision of Brennan, Dawson, Toohey and Gaudron JJ in Smith v New South Wales Bar Association (1992) 176 CLR 256; [1992] HCA 36. Their Honours addressed the circumstance where orders had not yet been entered and the appellant made an application for re-opening. Their Honours referred to the earlier form of what is now UCPR r 36.16 and observed as follows (at 265):

The power is discretionary and, although it exists up until the entry of judgment, it is one that is exercised having regard to the public interest in maintaining the finality of litigation. Thus, if reasons for judgment have been given, the power is only exercised if there is some matter calling for review.

6. Counsel for the defendant also took me to the reasons of Clarke JA (with whom Mahoney and Meagher JJA agreed) in Urban Transport Authority of New South Wales v Nw**eiser (1992) 28 NSWLR 471. In that case, Clarke JA was considering circumstances where a defendant, after the closing of its case and there being no case in reply, sought leave to re-open because its counsel realised he had made a mistake. Clarke JA stated the following (at 478):

The principle which should guide the court in determining whether to grant an application for leave to re-open is whether the interests of justice are better served by allowing or rejecting the application as the case may be. No doubt it is relevant to take account of a number of matters such as likely prejudice to the party resisting the application and the reasons why the evidence was not led in the first place, but there is not, in my opinion, any hard and fast rule which requires the court to reject an application where the decision not [to] call the witness in the party's case was a deliberate one. Of course that does not mean that that is not a very relevant consideration. It is. Where, for instance, a decision was based on tactical grounds it may be difficult to resist the conclusion that the interests of justice were better served by the rejection of the application. But even in that circumstance there may be cases in which it is felt that the client whose application it is should not have to suffer for his or her counsel's deliberate decision. Where the decision is not made for tactical reasons and is based on a mistaken apprehension of the law or the facts the case is more appropriately to be considered as one in which the application has resulted from an error by counsel.

7. None of the grounds identified by Mason CJ in Autodesk are relied upon in this case. Rather, the defendant effectively seeks to reopen its case to rely on developments that took place after I published my reasons.

8. I am prepared to accept that if the payment for the debt and provision for costs had been made prior to my delivery of reasons and, in particular, if it occurred prior to the hearing, which occurred on 25 and 26 February 2026, that would have been relevant to the exercise of my discretion as to whether to make orders winding up the defendant in insolvency.

9. In this case, the defendant made a forensic decision to wait until after my reasons to proffer the amount to pay the debt and anticipated legal costs. The defendant must have appreciated that the Court could have made the orders that I announced yesterday. That is because the orders granted the relief that was being sought by the plaintiff.

10. I do not accept that the defendant has shown exceptional circumstances that would justify revisiting and changing the orders that I announced.

11. I accept that the payment proposed by the defendant after I delivered my reasons would not be entirely without risk to the plaintiff. That is because if the defendant is wound up at some future time (within the relevant statutory period), there is the possibility that the payment could be deemed an unfair preference and at risk. This is a risk, but it is not altogether apparent to me that this risk is greater than the risk that the plaintiff currently faces in the circumstances of a winding up of the defendant.

12. The evidence demonstrated that the defendant has liabilities to Mr Kennedy and other related entities that would, I expect, be claimed on a winding up. It is not obvious that the plaintiff would be better off on a winding up compared to the risks that would flow if it now receives the outstanding debt, together with a payment of its costs. The defendant submitted that the plaintiff was acting unreasonably in not accepting the offer. While I am not prepared to come to that conclusion, I also take the view that there would seem to be some real justification in the plaintiff accepting the offer.

13. Nevertheless, in my view, it is inimical to the administration of justice that a party in the position of the defendant can wait until after reasons are delivered before taking steps, such as proffering payment of a debt, and then seek to have the Court revisit those reasons in light of that step. In making a forensic and tactical decision to wait until after my reasons to proffer payment, the defendant, in my view, has left it too late to be able to rely on that offer as a reason to resist the entry of the orders that have been announced in open Court, and to seek different orders instead.

14. If the defendant wished for me to take into account an offer to pay the debt and costs, they needed to make the offer certainly before I announced my orders, and probably prior to the hearing: see the reasons of Rees J in In the matter of GHS Safety Products Pty Ltd [2019] NSWSC 668 at [48]-[50].

15. I recognise the serious consequences of the orders for the defendant. I recognise that the outstanding debt is not a large one. I have found in my reasons that the defendant has not rebutted the presumption of insolvency and I have also concluded that the evidence would not otherwise have led me to a finding that the defendant is insolvent. In that respect, the position in this case is different to that considered by Rees J in GHS Safety Products Pty Ltd.

16. I also note that it is regrettable that so much time and expense has been incurred over what is a relatively modest debt. It is apparent that the legal expense significantly outweighs the amount of the debt.

17. For these reasons, I am not prepared to accede to the defendant’s application that I vary the orders that were announced (but not entered) yesterday. The orders that were announced will be entered. I will not order that the winding up application is dismissed.

**********