In the matter of Wine National Pty Ltd, James Estate Wines Pty Ltd, Liquor National Pty Ltd [2014] NSWSC 507

Judgment 1By Amended Interlocutory Process filed on 12 December 2013, the Applicants, Douglas Hawkins Pty Ltd, Shelteo Pty Ltd ("Shelteo"), Aramax Nominees Pty Ltd ("Aramax"), Primax Nominees Pty Ltd ("Primax") and Mr David James seek a range of orders. 2The First and Second Respondents to the application are Messrs David Merryweather and Greg Hall ("TLT Receivers"), who are the receivers and managers appointed by Australia and New Zealand Banking Group Limited ("ANZ") to Rugama Trading Pty Ltd (receivers and managers appointed) (in liquidation) ("Rugama") and James Australia Group Pty Ltd (receivers and managers appointed) (in liquidation) ("JAG"'), which are the Eighth and Ninth Respondents in the application. 3The Third and Fourth Respondents to the application are Mr Shaun Fraser and Mr Christopher Honey, who are the liquidators ("Liquidators") of JAG, Rugama and several other entities. They did not take an active role in the proceedings although their solicitors wrote two letters that were drawn to the Court's attention at their request. The Liquidators have indicated, by their solicitors' letter dated 19 November 2013, that they are without funds in the liquidation of Rugama, JAG and the Seventh Respondent, Wine Investment Services Pty Ltd ("WIS"). The Liquidators make certain comments in respect of Mr James' affidavit evidence in that letter and further comments in respect of affidavit evidence of Ms Irene James and Mr David James in a further letter from their solicitors dated 24 January 2014. I have not considered it necessary or appropriate to have regard to those comments, not led by affidavit evidence, in determining this application. 4The Fifth and Sixth Respondents to the application, Messrs Cussen and Strawbridge ("JE Receivers"), are the receivers appointed by the Court to certain wine stock and also the joint and several receivers and managers of substantially all of the assets of James Estate Wines Pty Ltd and other entities ("JE Companies"). 5An application was made on the first day of the hearing of the application to join ANZ as a further respondent to the application and the Applicants initially sought to contend that ANZ's appointment of administrators to JAG was not made in good faith or for a proper purpose. Mr Foreman, who appeared for the TLT Receivers and ANZ, objected to the joinder of ANZ if that submission was to be put, on that basis that fairness required that ANZ be given sufficient notice of it and afforded an opportunity to lead evidence in response. The Applicants did not press those contentions and ANZ did not object to its joinder to the application on the basis that the Applicants accepted that ANZ had power under s 436C of the Corporations Act to appoint an administrator and did not argue that appointment was not made in good faith or for an improper purpose, but pressed a contention that ANZ could have secured its position without appointing an administrator. I will determine the application on that basis. Application to stay the winding up of JAG 6The Applicants did not press all of the relief sought in the Amended Interlocutory Process in this application. The first order that they pressed in the application was: "7. An interim order staying the winding up of [WIS] and [JAG] until further order." 7By way of background to this order, as at May 2010, Mr David James controlled a group of companies including JAG ("TLT Companies") that had given security to ANZ. JAG was the owner of real property at Rutherford, New South Wales, and, in May 2010, JAG borrowed $385,000 from ANZ which was secured by a fixed and floating charge and a real property mortgage over the property situated at Rutherford. The security granted by JAG was not cross-collateralised in respect of other debts owed by the TLT Companies. By letter dated 20 December 2012, ANZ's solicitors demanded repayment of amounts due under its loan facility to JAG and again demanded repayment on 21 June 2013. There was no challenge to the validity of those demands in the course of this application. 8ANZ appointed Messrs Fraser and Honey as administrators ("Administrators") of several companies including JAG on 19 August 2013 under s 436C of the Corporations Act, which provides that: "A person who is entitled to enforce a security interest in the whole, or substantially the whole, of a company's property may by writing appoint an administrator of the company if the security interest has become, and is still, enforceable." The TLT Receivers were appointed as joint and several receivers and managers of substantially all of the assets of the same companies by ANZ as secured creditor on the same date. The JE Receivers were appointed as joint and several receivers and managers of substantially all of the assets of the JE Companies by Rabobank Australia Ltd ("Rabobank") on 28 August 2013. 9The Administrators' report to creditors dated 11 September 2013, dealing with JAG and several other companies, recorded, inter alia, that Mr David James had at that time failed to comply with their request for access to the relevant companies' books and records or to attend their office to answer queries; that some books and records had been recovered from the companies' premises by the Administrators and they had been provided access to records recovered by the receivers and managers, but those records were incomplete and inconsistent; that the Administrators suspected that the companies had failed to maintain appropriate records in accordance with the requirements of s 286 of the Corporations Act, and that failure may give rise to a presumption of insolvency; that the Rutherford land owned by JAG was unlikely to have sufficient value to repay the secured creditor, ANZ, in full; and that unsecured creditors' prospect of a return would be through the successful pursuit of voidable transactions or claims against Mr David James, which would only be possible in a winding up. The Administrators' recommendation was that the relevant companies, including JAG, be wound up on the basis that there was no proposal for a deed of company arrangement; the companies were, or were likely to become, insolvent; and a liquidation would facilitate the completion of investigations commenced by the Administrators. Following the second creditors meeting in the administration, JAG passed into voluntary liquidation on 18 September 2013. 10On 22 November 2013, the TLT Receivers sought expressions of interest for the purchase of the Rutherford property owned by JAG. It is common ground that that property has not been sold. 11Section 482 of the Corporations Act provides that at any time during the winding up of a company, the Court may, on application, make an order, relevantly, staying the winding up either indefinitely or for a limited time. It is common ground that the jurisdiction under s 482 of the Corporations Act does not apply directly to a company that is being wound up voluntarily; however, by s 511 of the Corporations Act, the Court may exercise any power in a voluntary winding up which it could exercise if the company was wound up by the Court, including the power to stay or terminate the winding up. Standing to make the relevant application is conferred on the liquidator, creditor or contributory under s 482(1A). The definition of "contributory" in s 9 is defined, in relation to a company, as the holder of fully paid shares in a company. I will assume, without deciding, that at least one of the Applicants has standing to bring the application in respect of JAG. 12The order that the Applicants seek was framed as an "interim" order staying the winding up. It does not seem to me that s 482 of the Corporations Act authorises the Court to take an "interim" step falling short of a stay of a winding up, which is itself an order that is interim in character. In Austral Brick Co Pty Ltd v Falgat Constructions Pty Ltd (1990) 21 NSWLR 389 at 392; (1990) 2 ACSR 766, Young J (as his Honour then was) distinguished the usual meaning of the word "stay" from the concept of a stay of a winding up order, noting that such a stay "temporarily or indefinitely removed" any limitation upon the company's normal activities and permitted the directors "once again to implement their powers". The effect of a stay of a winding up was described by Hodgson CJ in Eq (as his Honour then was) in Amann Aviation Pty Ltd v Continental Venture Capital Ltd [1999] NSWSC 1212 at [41] as follows: "... a stay of a winding up order has the effect that the winding up order is itself deprived of continuing effect, so that the appointment of the liquidator is no longer sustained and control of the company returns to the directors: see Austral Brick Co Pty Ltd v Falgat Constructions Pty Ltd (1990) 21 NSWLR 389." 13In oral submissions, Mr Allen initially approached the application on the basis that the Court would apply the tests applicable to the grant of interlocutory relief, namely, whether there was an arguable case on the balance of convenience, but ultimately accepted that the Court may apply the usual discretionary considerations applicable to a stay of a winding up, but on the basis that such a stay was temporary in character. It does not seem to me that the question whether the winding up should be stayed is to be determined by reference to principles of whether there is a "serious question to be tried" or the "balance of convenience", since a stay of the winding up does not preserve the status quo, but instead restores powers of the directors which are suspended during the winding up, and removes, albeit potentially on a temporary basis, the liquidator from control of the company. In that sense, a stay of a winding up seems to me to be in the nature of final relief, although it may be temporary in character. 14In Mercy & Sons Pty Ltd v Wanari Pty Ltd (subject to deed of company arrangement) (in liq) [2000] NSWSC 756; (2000) 35 ACSR 70 at [47]-[51], Austin J observed that: "[47] In considering an application to stay or terminate a court-ordered winding up under s 482, the court has regard to various categories of interests. First, the court considers the interests of creditors, taking into account whether they object to the proposed termination. But even if all the existing creditors agree, the court may take the view that the proposed termination puts at risk the interests of future creditors. For example, the court is likely to be concerned where the proposal preserves the existing debts but defers their payment, particularly if the deferment has no enforceable status: see the remarks of Street J at first instance in Re Data Homes Pty Ltd [1971] 1 NSWLR 338 at 341. Similarly, if the proposal is that the principal shareholder/creditor will pay out all the other creditors and seek recovery of his debt by instalments, the court is unlikely to permit the company to start trading again and thereby incur additional debts, since if the company fails again, recovery by the new creditors may be prejudiced by the existing debt. However, if the principal shareholder/creditor capitalises his debt, the court may well take a different view: Collins v G Collins & Sons Pty Ltd (1984) 9 ACLR 58. [48] The cases concerning the interests of creditors do not, in my opinion, establish inflexible rules. Specifically, I do not believe that there is any absolute rule that a winding up cannot be terminated as long as one or more debts remains undischarged. Instead, the cases identify the range of concerns which the court is likely to have in exercising its discretion when an application is made, and therefore give guidance as to the matters upon which the court will need to be satisfied. [49] Second, the court considers the interests of the liquidator, particularly with respect to costs. ... [50] Third, the court considers the interests of contributories. Generally a stay or termination will not be granted unless each member of the company either consents or is otherwise bound not to object to it, or his or her rights are properly secured: Re Calgary and Edmonton Land Co Ltd (in liq) [1975] 1 All ER 1046. ... [51] Finally, the court considers the public interest, including matters of commercial morality, taking the initial approach that insolvent companies should be wound up: Re Data Homes Pty Ltd [1972] 2 NSWLR 22." Austin J also noted (at [53]) that the factors relevant to the exercise of the discretion were not "absolute rules" but "identify the range of discretionary concerns which the Court will need to address". 15The TLT Receivers also drew attention to the summary of the principles governing the stay or termination of a liquidation in Re 311 Hume Highway Liverpool Fund Pty Ltd (in liq) [2013] NSWSC 465; 93 ACSR 683 at [3]-[8], where I observed that: "[4] The factors relevant to whether a winding up should be stayed or terminated were summarised by Master Lee QC of the Supreme Court of Queensland in Re Warbler Pty Ltd (1982) 6 ACLR 526 at 533 as follows: "1. The granting of a stay is a discretionary matter, and there is a clear onus on the applicant to make out a positive case for a stay: Re: Calgary and Edmonton Land Co Ltd (in liq) (1975) 1 WLR 355 at pp 358-359 per Megarry J. See also sec 243 of the Act [ie, Companies Act 1961]. 2. There must be service of notice of the application for a stay on all creditors and contributories, and proof of this; Re South Barrule Slate Quarry Co (1869) 8 Eq 688; Re Bank of Queensland Ltd (1870) 2 QSCR 113. 3. The nature and extent of the creditors must be shown, and whether or not all debts have been or will be discharged: Krextile Holdings Pty Ltd v Widdows (above) [[1974] VR 689]]; Re Data Homes Pty Ltd (above) [[1971] 1 NSWLR 338], Law of Company Liquidation (above) at p 395. 4. The attitude of creditors, contributories and the liquidator is a relevant consideration: sec 243(1), Calgary and Edmonton Land Co Ltd (above). 5. The current trading position and general solvency of the company should be demonstrated. Solvency is of significance when a stay of proceedings in the winding-up is sought: In Re a Private Company [1935] NZLR 120; Re Mascot Home Furnishers Pty Ltd [1970] VR 593 at p 598. 6. If there has been non-compliance by directors with their statutory duties as to the giving of information or furnishing a statement of affairs, a full explanation of the reasons and circumstances should be given: Re Telescriptor Syndicate Ltd (above) [[1903] 2 Ch 174]. 7. The general background and circumstances which led to the winding-up order should be explained: Krextile Holdings Pty Ltd v Widdows (above). 8. The nature of the business carried on by the company should be demonstrated, and whether or not the conduct of the company was in any way contrary to "commercial morality" or the "public interest": Krextile Holdings Pty Ltd v Widdows (above)." Master Lee noted that it that this list was not intended to be exhaustive and should not be regarded as a series of rigid principles, and that proposition was subsequently emphasised in Dubolo Pty Ltd (t/as Fender Signs) v Codrington Investment Corporation Pty Ltd (1998) 26 ACSR 723 at 725, Metledge v Bambakit Pty Ltd (in liq) [2005] NSWSC 160 at [5] and Von Riesefer v Mainfreight International Pty Ltd [2009] VSCA 129; (2009) 73 ACSR 427 at 438. [5] Relevant factors to such an application were identified in Mercy & Sons Pty Ltd v Wanari Pty Ltd [2000] NSWSC 756; (2000) 157 FLR 107; (2000) 35 ACSR 70; Re Nardell Coal Corporation Pty Ltd [2004] NSWSC 281; (2004) 49 ACSR 110 and summarised by Austin J in Vero Workers Compensation (NSW) Ltd v Ferretti Pty Ltd [2006] NSWSC 292; (2006) 57 ACSR 103 at [17] as including the interests of the Company's creditors, including future creditors; the interests of the liquidator, particularly with regard to costs; the interests of contributories and the interests of "the public", including the public interest in matters of commercial morality, and the public interest that insolvent companies should be wound up. Generally, the Court will not terminate a winding up so as to restore control of a company to its shareholders and directors unless the company will have additional financial strength and stability to provide confidence that it can continue without an appreciable risk of returning to liquidation: Re Data Homes Pty Ltd (in liq) [1972] 2 NSWLR 22 at 27; Leveraged Equities Ltd v Hilldale Australia Pty Ltd [2008] NSWSC 190; (2008) 28 ACLC 182; Re SNL Group Pty Ltd (in liq) [2010] NSWSC 797. [6] In Apostolou v VA Corporation of Australia Pty Ltd [2010] FCA 64; (2010) 77 ACSR 84 at [14], [58], Finkelstein J noted that there may be cases, which he characterised as exceptional, where a stay of a company's winding up would not be granted when the company was solvent, but noted that such an order would usually be made if all the creditors are paid out, the liquidator's costs and expenses are covered and the members agree; see also Re Kitchen Dimensions Pty Ltd (in liq) [2012] VSC 280 at [22]ff. I have also recently summarised the applicable legal principles to an application of this kind in Re Plaza West Pty Limited (in liq) (subject to deed of company arrangement) [2013] NSWSC 168 and I have drawn upon that summary here. [7] The importance of proof, preferably including accounting evidence, as to the Company's financial position was emphasised by White J in QBE Workers Compensation Pty Ltd v P Russell Enterprises Pty Ltd [2005] NSWSC 1128 at [26], where his Honour observed that the Court was unlikely to be persuaded of a company's solvency on the evidence of a single director/shareholder without external confirmation, typically obtained either from the liquidator or from the evidence of an external accountant. That observation was approved by Barrett J in Owners Strata Plan 70294 v LNL Global Enterprises Pty Ltd [2006] NSWSC 1386; (2006) 60 ACSR 646 at [4]. In Expile Pty Ltd v Jabb's Excavations Pty Ltd [2003] NSWCA 163; (2003) 45 ACSR 711, the Court of Appeal emphasised that a party seeking to establish solvency must lead the "fullest and best" evidence of the company's financial position and, in Owners Strata Plan 70294 v LNL Global Enterprises Pty Ltd above, Barrett J observed (at [5]) that the same principle applied where an applicant sought to show that solvency would be achieved if a particular course of conduct was followed. [8] In Gematech Pty Ltd v Bardi Investments Pty Ltd [2008] NSWSC 196 at [26]-[27], Hammerschlag J pointed to the need for the "fullest and best" evidence of the company's solvency in an application of this kind. In Re Pine Forests of Australia (Canberra) Pty Ltd [2010] NSWSC 1127 at [3], Barrett J formulated a central question in an application under s 482 as: "... whether the company's financial health is such that it may safely be released from the form of external administration focussed mainly on the interests of creditors and returned to the mainstream of commercial life where it may, under the control of its directors, incur new debts that have to be paid as and when they fall due. A capacity to operate in a financially sound and responsible way and to service foreseen indebtedness is central to the inquiry." In Re SNL Group Pty Ltd (in liq) above at [24], Bergin CJ in Eq similarly observed that: "it is clear that in determining whether to terminate the winding up of a company, it is usual that the most significant matter for consideration is the solvency of the Company. The other considerations, such as the extent of the creditors, the status of the debts and the nature of the company's business will be taken into account in determining whether the company has returned to, or will be returned to solvency." 16A stay or termination of a winding up will only be ordered if there is some valid reason why it is appropriate to make that order rather than permit the winding up to take its normal course: El-Fahkri, in the matter of Elfah Pty Ltd (in liq) [2002] FCA 1469 at [9]. 17The Applicants developed several discrete arguments in support of the application for the stay of the winding up of JAG and to some extent those arguments shifted between their written and oral submissions and also between their submissions on 12 December 2013 and at the second listing of the application on 28 February 2014. In response, the TLT Receivers submit that, even if the Applicants have standing to make the application in respect of JAG, they have not discharged the onus on them to make out a positive case for a stay. The TLT Receivers contend that there is insufficient evidence of solvency; that the application for a stay has not been served on creditors and contributories and their attitude has not been established; the nature and extent of creditors has not been shown; the failure to comply with requests for a report as to affairs by Mr David James is a factor tending against the stay or termination of the winding up; and that questions of commercial morality may also be relevant. 18First, the Applicants contended in oral submissions that the application in respect of JAG was brought because Mrs Irene James wants to discharge the money owing to the ANZ by JAG. Mr David James' evidence is that JAG wishes to keep the property at Rutherford and to undertake a development on the property and that Mrs Irene James has put forward a proposal through her solicitors to "repay the loan" from ANZ. That evidence mischaracterised the proposal put by Mrs James, which was to purchase the loan and take an assignment of the security rather than to repay it. 19The Applicants contended that the appointment of the administrator to JAG served no purpose to ANZ in protecting its security interest and was "not necessary" because the TLT Receivers had at least two items of property from which they could seek payment of the respective debt, namely the real property at Rutherford and a sum of $650,000 on deposit, subject to a claim by JAG's former solicitors, in the sum of $390,000. That submission reflects the fact that JAG had previously obtained a judgment against a third party in the amount of $1 million plus interest and costs, and had taken action in the Family Court of Australia which had led to the recovery of $650,000, which was subject to a claim by its former solicitors in respect of unpaid costs of the proceedings. Mr Merryweather's evidence was that, in respect of that recovery, $260,000 had initially been paid into a bank account in the name of JAG under the TLT Receivers' control. Mr Merryweather's evidence is that, on 28 November 2013, JAG entered into a deed with ANZ and JAG's former solicitors by which the proceedings commenced by those solicitors were settled, and JAG received a further $84,126.58, in addition to the amount of $260,000 initially paid to it, and had received a total of $344,126.58 in respect of the relevant proceedings. 20The Applicants assume, in submissions, that the amount received by the TLT Receivers from the proceedings is available to them and ultimately to repay ANZ's debt; however, it emerged in the course of that application that Mrs Irene James has asserted the right to receive that amount, arising from a purported assignment of the amount recoverable by JAG in the proceedings to Mrs James. The Deed of Assignment by JAG to Mrs James was dated 22 July 2013 and was executed for and on behalf of JAG by Mr David James. The recitals recorded that JAG proposed to assign to Mrs James all of the proceeds of the judgment entered in favour of JAG in the Supreme Court proceedings and cl 2 provided that: "[JAG] as the legal and beneficial owner of the Debt absolutely passes, assigns and transfers the legal and equitable right and ownership to the whole of the Debt to [Mrs James] on the Assignment Date." By letter dated 14 November 2013, Mrs James' solicitors advised the solicitors for ANZ and the TLT Receivers that if, after payment of fees to JAG's former solicitors, an excess of monies remained in the controlled monies account, Mrs James reserved her rights in relation to a claim over those monies. 21Mr Merryweather's evidence was that the amount of the debt owing by JAG to ANZ was approximately $386,000 as at 19 August 2013 and that amount had since increased through accrual of interest and incurring of continuing costs and expenses in the enforcement of ANZ's security interests over JAG, including the ongoing receivership. He identified those expenses as including costs and disbursements in this proceeding, proceedings commenced by JAG's former solicitors against it and claims made by Mrs Irene James, and fees and disbursements incurred in relation to the sale of the Rutherford property. The TLT Receivers contend, and I accept, that the debt owed by JAG to ANZ would not be paid out in full until the receiver's proper costs and associated legal costs have been paid: Austin v Royal [1999] NSWCA 222; (1999) 47 NSWLR 27 at [16]-[21]. Mr Merryweather calculated the amount that JAG owed to ANZ, after taking into account the funds received from the proceedings, as $41,903.21 plus interest on ANZ's loan accruing since 19 August 2013 and the receivers' costs and expenses to which he had referred. That calculation was, however, made on the assumption that Ms James did not pursue or was not successful in the claim to the amount received by JAG to which I referred above; if she were successful in that claim, then the amount owed by JAG to ANZ would be in excess of $385,000. 22I do not accept the Applicants' submissions that the amounts available to the TLT Receivers would necessarily be sufficient to repay ANZ's debt and that the appointment of receivers was unnecessary. The first proposition may well not be correct given the accrual of interest, the receivers' costs and expenses and Mrs Irene James' competing claim. The amount that will be recovered from the sale of the Rutherford property and when that sale will be achieved is unknown. While the appointment of receivers and managers was one step that was available to ANZ to enforce its security, ANZ as secured creditor also had the ability to appoint an administrator to JAG and that right was not conditioned by any requirement of necessity. 23The Applicants also contend that the appointment of receivers and managers to JAG was analogous to a clog on the equity of redemption, because it put JAG in a position where the mortgage cannot be redeemed. It does not seem to me that that submission is well-founded. It would be open to JAG, by its liquidators, to redeem the mortgage if it was in funds to do so and it would also be open to Mrs James to put the Liquidators in funds to do so. Mr Allen responded to that possibility, in oral submissions, by noting that Mrs James did not have a payout figure for the mortgage. However, Mrs James herself has not sought a figure to pay out the mortgage, as distinct from a price to acquire it, and it would be open to the Liquidators to seek such a figure. There is no evidence that Mr David James or Mrs James have put any offer to the Liquidators to put them in funds to redeem the mortgage, and Mr Allen accepted in oral submissions that that matter was relevant to the exercise of the Court's discretion. Mr Allen ultimately contended that it would be "more convenient and cost-effective" for JAG to be put in the hands of Mr David James so that he could cause those steps to take place. It does not seem to me that that matter warrants a stay of the winding up, given the issues as to solvency and the public interest to which I will now refer. 24The solvency of a company is generally an important issue in the exercise of the Court's discretion whether to stay or terminate a winding up. Mr Allen submits that solvency is not a relevant consideration, or is at least a matter of lesser relevance, in an application to stay a winding up application where, he submits, JAG was not placed in liquidation because it was insolvent and was instead placed in liquidation as a result of the appointment of an administrator by a secured creditor under s 436C of the Corporations Act and then passed into voluntary liquidation at the conclusion of the administration. I do not find that submission persuasive, where JAG has passed into voluntary liquidation because creditors did not return it to the control of its directors and no deed of company arrangement was proposed or adopted in the administration. Issues of solvency and public policy are relevant even in an application to stay or terminate the winding up of a company that is in members' voluntary winding up: McKern (as liquidator of Pacific Edge Corporation Pty Ltd (in liq)) v Pacific Edge Corporation Pty Ltd (in liq) [2004] NSWSC 1150; (2004) 51 ACSR 602 at [6]. In Acconci v Alpha Technologies Corporation Ltd (in liq) [2010] FCA 970; (2010) 79 ACSR 505, in considering whether to terminate a winding up where the company had passed into liquidation following the second creditors meeting in an administration, Dodds-Streeton J (at [92]-[94] and [111]-[114]) similarly pointed to the interests of present and future creditors and the relevance of solvency. 25The TLT Receivers also rely, in opposition to the application for a stay of the winding up of JAG, on issues arising from dealings with the Office of State Revenue which they contend are relevant to the question of solvency. Mr Merryweather refers, in his affidavit dated 24 January 2014, to a claim made by the Commissioner of State Revenue of New South Wales in respect of payroll tax of $303,405.30 against JAG, and penalty tax of 90% of that amount. Mr Allen responds that the claim by the Office of State Revenue does not establish any amount of a debt due immediately by JAG, although Mr Allen acknowledges that it lists a number of assessments that have been made. Companies including JAG had commenced proceedings in the Administrative Decisions Tribunal of New South Wales in respect of that assessment, but the TLT Receivers have since given instructions that they do not intend to cause those companies to continue to prosecute those proceedings. 26In Supplementary Submissions filed on 3 March 2014, by leave, the TLT Receivers referred to the provisions dealing with payroll tax under the Payroll Tax Act 2007 (NSW) and pointed out that the Payroll Tax Act was a "taxation law" for the purposes of the Taxation Administration Act 1996 (NSW) and that, under s 44 of the Taxation Administration Act, the Commissioner may recover the amount of any tax unpaid as a debt to the Commissioner. There is evidence, in a letter dated 27 November 2013 from JAG's former solicitors to the TLT Receivers, that an amount exceeding $1 million has been paid by the relevant companies towards a total payroll tax liability of $4,293,913 claimed by the Office of State Revenue. The TLT Receivers also refer to s 81 of the Payroll Tax Act and s 45 of the Tax Administration Act, which provide that each member of a company group is liable jointly and severally to pay an amount unpaid by a member of the group in respect of any period. The TLT Receivers contend that it may be inferred that JAG, as a member of the relevant group, has a liability to the Commissioner in respect of payroll tax of up to $4,293,913, (including interest and penalties), although that amount may be reduced by the payment in excess of $1 million to which reference was made above. 27The TLT Receivers subsequently sought leave to reopen the hearing of the proceedings for the limited purpose of tendering copies of notices of assessment in respect of payroll tax totalling $303,405.30 including interest and penalties issued by the Commissioner of State Revenue to JAG for the period 1 July 2003 to 30 June 2010, and a formal proof of debt or claim dated 28 August 2013 in the amount of $5,833,959.06 (including payroll tax, interest and penalties) in respect of joint and several liabilities of JAG lodged by the Commissioner with the liquidators of JAG. The Applicants did not oppose that leave and I consider that it should be granted. These assessments indicate that JAG is likely to be presently insolvent and that tends strongly against a stay of the winding up. 28The case law also recognises that questions of commercial morality may give rise to reasons not to terminate a winding up where there is serious impropriety in the conduct of a company's affairs or significant risk to future creditors. In Gematech Pty Ltd v Bardi Investments Pty Ltd [2008] NSWSC 196 at [28]-[29], Hammerschlag J noted that the Court will have regard, in such an application, not only to creditors' interests but also to the public interest, including whether granting the order would be detrimental to commercial morality. In Prendergast v Rolcross Pty Ltd (in liq) [2008] NSWSC 146 at [25], White J directed attention to the question: "... whether it appears that it would be, or may be, contrary to the public interest if the company were permitted to resume operations." 29Several matters of concern arise from the Administrators' report to creditors dated 11 September 2013, to which I referred above, including their observation that Mr David James had failed to comply with their request for access to the relevant companies' books and records or to attend their office to answer queries; that books and records recovered from the companies' premises by the Administrators and the receivers and managers were incomplete and inconsistent; and that the Administrators suspected that the companies had failed to maintain appropriate records in accordance with the requirements of s 286 of the Corporations Act. The TLT Receivers also refer to non-compliance by Mr David James with his statutory duties in respect of furnishing statements of affairs, and that matter is also relevant to the public interest in determining whether to stay the winding up of JAG so far as it is sought to return the company to his control. 30The TLT Receivers contend that the allegations made by the Office of State Revenue in respect of the claims to which I have referred above can be taken into account in the exercise of the Court's discretion whether to wind up JAG. By letter dated 21 February 2012, the Office of State Revenue alleged that companies including JAG had provided false and misleading documentation to it during an investigation in the amount of payroll tax payable by those companies. I proceed on the basis that those matters are merely allegations, and have not been established, and do not have regard to them in determining the public interest issues arising in this application. 31The position of the Liquidators is also a relevant factor in determining whether to stay or terminate a winding up: Re Australian Eco-Retreats Pty Ltd (in liq) [2011] NSWSC 1178 at [13]; Smith; In the matter of Matrix Metals Ltd (in liq) [2011] FCA 1399 at [33]. The Applicants have taken no steps to address the position of the Liquidators, including as to costs that have been incurred in the liquidation to date, other than initially to seek an order (not pressed in this application) that the TLT Receivers pay the costs of the winding up of WIS. No basis for such an order has been established and the Liquidators' position would not be protected if the winding up were stayed without any other indication that the Applicants would pay their costs. 32In submissions in reply, Mr Allen accepted that JAG was "probably" insolvent, and accepted that that was a "very important factor" in the Court exercising its discretion, but contended that this was an unusual circumstance where ANZ's position was protected by the fact that it was a secured creditor who had taken action to recover the debt by enforcement against a security. It does not seem to me that that matter outweighs the other reasons not to stay the winding up to which I have referred, or addresses the risk to other persons who might deal with JAG, in a position of insolvency, if the winding up was stayed. Mr Allen also contends that JAG may be made solvent through the provision of money by Mrs James or the assignment of the mortgage, but no step has been taken to, for example, demonstrate that sufficient funds are available to pay out the entirety of ANZ's debt (which, as noted above, would be greater if Mrs James' claim to the monies recovered by JAG were to succeed) or interest or the receivers' costs, prior to any stay or termination of the winding up. Instead, the proposal appears to contemplate that the liquidation should be stayed, while JAG remains insolvent, so that some further step may be taken at some later date to address its state of insolvency. 33For these reasons, I am not satisfied that an order should be made staying the winding up of JAG. At one point, Mr Allen also contended that a refusal by the TLT Receivers to provide a payout figure for the loan in respect of JAG was amenable to review under s 1321 of the Corporations Act. That submission was rightly not pressed, since ANZ rather than the receivers and managers were asked for, and declined to provide, that figure and ANZ's conduct is not amenable to review under that section. Application for stay of the winding up of WIS 34The business of WIS included the storage of wine for customers, which the Applicants claim was stored at several locations. On 10 October 2013, there was correspondence between the solicitors for the TLT Receivers as receivers appointed to Rugama and the solicitors acting for the JE Receivers appointed by another secured creditor of other entities, Rabobank, indicating that liquidators would be appointed to WIS who could, inter alia, investigate competing claims on the wine stock held by WIS. There is, as will emerge below, a difficulty with the proposition that the Liquidators would assess what assets are owned by WIS and who has possession of them, namely, that they are not presently in funds to do so, which has been addressed by the appointment of court-appointed receivers to at least a large part of that stock. On 10 October 2013, the TLT Receivers caused Rugama, as sole shareholder of WIS, to resolve that WIS be wound up and that Messrs Fraser and Honey be appointed as liquidators of WIS. 35The Applicants also seek an "interim" order staying the winding up of WIS until further order. As I noted above, standing to make such an application is limited to the liquidator or a creditor or contributory of the relevant company. Mr Murray James' evidence, in his affidavit dated 6 November 2013, are that the Third and Fourth Applicants, Aramax and Primax, are creditors of WIS because they have not been paid monthly charges due for packing and delivery services. The fact that monies due to Aramax and Primax have not been paid by WIS does not, of course, assist the Applicants in establishing WIS's present or future solvency. Mr David James also claimed, by his affidavit dated 17 December 2013, to be a creditor of WIS on the basis that he had purchased wine from time to time and stored it with WIS. I will assume, without deciding, that Aramax, Primax or Mr David James have standing to bring the relevant application. Mrs Irene James also claims to be a creditor of WIS because she held wine with WIS; however, Mrs James is not an applicant, so it is not necessary to determine her standing to bring the application. 36Mrs Irene James also gave evidence, in her affidavit dated 17 December 2013, that the Second Applicant, Shelteo, was WIS's sole shareholder. That evidence is inconsistent with WIS's statutory records, at least so far as the legal ownership of the share is concerned. Notwithstanding Mrs James' evidence noted above, it was largely common ground that Rugama is the sole shareholder of WIS, although there is a dispute as to which entity has a beneficial interest in the shares. The dispute as to the beneficial ownership of the share in Rugama is relevant to the question of standing, since Shelteo claims that it also has standing to bring the application to stay the winding up of WIS as beneficial holder of the share owned by Rugama in WIS, where Rugama is not in a position to prosecute its claim as shareholder because it is in liquidation. I do not accept that submission. It is not suggested that Shelteo is a creditor of WIS and it could only have standing as a contributory of WIS. The term "contributory" is relevantly defined in s 9 of the Corporations Act as the "holder" of fully paid shares and that definition refers to the legal owner of shares according to the register of members, which is Rugama, not Shelteo: Dalgety Downs Pastoral Company Pty Ltd v Federal Commissioner of Taxation (Cth) (1952) 86 CLR 335 at 341; Maertin v Klaus Maertin Pty Ltd [2006] NSWSC 588; (2006) 57 ACSR 714 at [11]. Accordingly, I do not accept that Shelteo has standing to bring the relevant application, even if the share in WIS held by Rugama was held on trust for it. 37I will nonetheless address the evidence as to whether the share in Rugama was held in trust for Shelteo. A company search for WIS records that Rugama did not beneficially hold the shares in WIS and that proposition appears to be uncontroversial. The TLT Receivers contend that the share held by Rugama was held on trust for the Avadan Family Trust. The Applicants accept that, if that contention is correct, the assets of WIS would be secured for the payment of the debts owed to ANZ. The Applicants contend that the share in WIS is held by Rugama on trust for Shelteo. 38The records maintained by ASIC in respect of WIS record that the one share in it is held by Rugama, not beneficially, but the document number referenced in respect of that information is a Change of Company Details dated 17 August 2009. That date broadly corresponds to a declaration of trust by which Rugama, as trustee for the Avadan Family Trust, declared that it was acquiring all of the issued shares in the capital of WIS on behalf of the Avadan Family Trust, and is prior to a later purported declaration of trust in favour of Shelteo. 39By his affidavit dated 6 November 2013, Mr Murray James gave hearsay evidence that he was informed by his brother Mr David James, his mother Mrs Irene James and a third person that Rugama held the shares on trust for Shelteo. Mrs Irene James also annexed to her affidavit a share transfer form dated 1 March 2010 by which Rugama declared that it held one share in the issued capital of WIS in trust for Shelteo. The suggestion that the share in WIS was transferred from Rugama to Shelteo on 1 March 2010 is contrary to the representation later made to ANZ in the fixed and floating charge ("Charge") given by Rugama by a Mortgage Debenture dated 23 December 2010 as to the identity of the trust for which Rugama was trustee. Although Mrs Irene James led evidence, in her 17 December 2013 affidavit, of amounts purportedly paid for the WIS share, that evidence did not demonstrate payments made by Shelteo but by another entity, Douglas Hawkins Pty Ltd. That evidence seems to me to provide, at best, weak support for the suggestion that the share was held on trust for Shelteo. The Applicants also led evidence, but ultimately did not rely upon, the subsequent appointment of Douglas Hawkins Pty Ltd as trustee of the trust in place of Rugama; the relevant documents had been signed by Mr David James on behalf of Rugama when Rugama was in liquidation. 40The TLT Receivers submit that, even if the Applicants have standing to make the application, they have not discharged the onus on them to make out a positive case for a stay. They contend that there is insufficient evidence of WIS's solvency; that the application for a stay has not been served on other creditors of WIS and their attitude has not been established; the nature and extent of other creditors of WIS has not been established; a failure by Mr David James to comply with requests for a report as to affairs is a factor tending against a stay of the winding up; and that other questions of commercial morality may also be relevant. 41The question whether Rugama held the share in WIS in its capacity as trustee for the Avadan Family Trust or as trustee for Shelteo is arguably also relevant to whether the liquidation of WIS should be stayed. At the time security was given to ANZ, Rugama represented that the share in WIS was held by it as trustee of the Avadan Family Trust and the provisions of ANZ's charge are sufficiently wide to extend to that share even if it is held by Rugama as trustee for another trust, including on trust for Shelteo. The "charged property" under the Charge given by Rugama includes, relevantly, all assets held by Rugama as a trustee. The terms of the Charge recognised that that share was held in trust for the Avadan Family Trust pursuant to a Deed of Settlement made 10 August 2009 between the settlor and Rugama. Clause 8.1 of the Charge in turn provides that: "If the Company acts now or in the future as trustee of any trust (regardless of whether or not the Company has told ANZ about that trust): (a) The provisions of this charge apply to the Company, both in its own capacity and as trustee of any trust. ..." By cl 8.3 of the Charge, Rugama represented that it did not act as the trustee of any trust other than as trustee of the Avadan Family Trust. Mr Foreman contends, and I accept, that if that representation was false, then that would be a matter relevant to considerations of commercial morality in respect of a stay of the winding up of WIS. 42For completeness, I should add that Mr Murray James refers in his affidavit evidence to various matters that, he suggests, indicate that the Receivers did not treat WIS as within the scope of ANZ's security, including the fact that ANZ or the TLT Receivers had accounted to WIS for monies held in a bank account held in its name. It does not seem to me that these matters have any significant impact upon the entitlement of the TLT Receivers, in their capacity as receivers of Rugama, to cause the resolution to place WIS in liquidation to be passed, or on whether the winding up of WIS should now be stayed. 43The Applicants also contend that the winding up of WIS did nothing to realise the share in WIS held by Rugama, assuming that it was a charged asset, and had the effect of jeopardising the business conducted by WIS and wine stock held as part of the business. I do not accept that submission. Mr Merryweather's evidence, as to which he was not cross-examined and which I accept, was that he caused the appointment of liquidators to WIS for the purpose of protecting and realising the value of WIS's assets for the benefit of Rugama and its secured creditor, ANZ, and with a view to assisting in the resolution of disputes as to the ownership of wine stock in the possession of WIS. That evidence is consistent with the correspondence with the solicitors acting for the JE Receivers to which I have referred above. 44The Applicants also contend that Mr David James and his brother, Mr Murray James, are familiar with the business of and stock held by WIS; could secure premises for the storage of the stock; are willing to take action to protect and maintain the stock; and that it would be "business as usual" if WIS came out of liquidation. Mr Murray James gave evidence, in his affidavit dated 6 November 2013, that he and David James operated WIS, although his evidence at one point was that his involvement started in 2013. He gave evidence as to the circumstances in which the TLT Receivers took control of various premises at which WIS stored wine. Much of this evidence is contested and it is not necessary to determine that contest in order to determine this application. Mr Murray James also gave apparently contradictory evidence that, since 2009, he had acted as a manager of WIS, at the request of his brother David James and his mother Mrs Irene James. In his further affidavit dated 8 November 2013, Mr Murray James gave evidence that Mr David James oversaw the day-to-day operation of WIS before his grandmother's death in mid-July 2012, and reconfirmed that he (Mr Murray James) became involved in the day-to-day operations of the business in 2013. Mr Murray James was cross-examined as to the apparent inconsistency between the propositions that his "involvement' with WIS started in 2013 and that he had acted as a manager of WIS since 2009. It is also not necessary to reach any determination as to that matter for the purposes of this judgment. 45Mr Murray James' evidence in respect of his role in WIS is further complicated by his evidence, in an interview with the JE Receivers on 18 September 2013, that he had not talked to Mr David James for 6½ years, and that it was only in the "last couple of years" that "we've been sort of coming back together". That period would include a substantial part of the period in which he claims to have been a manager of WIS, although it is perhaps not inconceivable that Mr David James who is said to have acted as the director of WIS and Mr Murray James who is said to have been involved in its management would have worked together over for several years while not talking to each other. 46A further factor that tends strongly against a stay of the winding up of WIS is that there is considerable uncertainty, at best, as to whether there is presently a properly appointed director to WIS who is capable of performing that role. In Dean-Willcocks v Payce (Buildings) Pty Ltd (Supreme Court (NSW), 1 September 1994, unrep), Young J noted: "[the importance], when making an order terminating a winding up and putting a company back into the marketplace to ensure that there are people who are responsible for it[s] management and to whom the authorities can look for compliance with the provisions of the Corporations Law". That factor is not, in my view, satisfied in the present case. At the date WIS was wound up, ASIC's records recorded that Mrs Jessica James was the sole director of WIS. Mr Murray James acknowledged, in his affidavit dated 8 November 2013, that Mrs Jessica James, his deceased grandmother, had died in mid-July 2012. Mr Murray James gave hearsay evidence that he was told by Mr David James that a memorandum of WIS had been executed removing Mrs Jessica James as a director and appointing Mr David James as a director of WIS. No such memorandum is in evidence and no such change of director was notified to ASIC. Mrs Irene James' evidence is that, after the death of Mrs Jessica James, she had a conversation with Mr David James requesting that he become the director of WIS and he agreed; further evidence as to the outcome of that conversation was not in admissible form, and was not admitted. Even if Mr David James was now the sole director of WIS, there is real doubt that he would be in a position to discharge the duties of a director, if the winding up were stayed, since there is evidence that he has been hospitalised over at least part of the period of the winding up, and Mr Murray James gave evidence in cross-examination confirming that Mr David James' capacity to deal with relevant issues has been impaired over the relevant period. 47It is also plain that there are multiple competing claims to the wine stock held by WIS, including at least claims by ANZ, Rabobank, WIS in its own right or persons associated with it, and third parties who had placed wine in WIS's custody. A circular to creditors issued by Messrs Honey and Fraser dated 17 October 2013 in their capacity as liquidators of WIS indicates their assessment that WIS has numerous "investor creditors" in respect of wine held with it, some of them having claims for substantial amounts. The fact that there is considerable uncertainty as to the ownership of wine in WIS's possession, and real doubt as to whether WIS's records are capable of resolving that uncertainty, is a matter tending against the return of WIS to the control of its former management, including Mr David James and Mr Murray James, to the extent that it is contended that the former was a director and the latter assisted in the management of WIS. The fact that WIS, or members of the James family, are claimants to that stock is also a matter that suggests that the resolution of competing claims would better be undertaken by an independent person. 48I have referred above to the fact that questions of commercial morality may give rise to reasons not to terminate a winding up. Mr Katekar, who appeared for the court-appointed receivers, also submitted that the Court could not be satisfied that Mr David James could be relied upon as a director of WIS, or that Mr Murray James's evidence as to his involvement in the management of WIS could be accepted given the contradictions in his evidence. 49I accept that, as Mr Allen points out, the liquidators appointed to WIS are not presently in a position to resolve any dispute as to the right to possession of wine held by WIS, where they are without funds to do so, although I note that the receivers have now been appointed by the Court on a basis that will address that issue. It does not seem to me that the consequence is that it is preferable to return WIS to the control of Mr David James, whether or not he is assisted by Mr Murray James, where it appears Mr David James has not been properly appointed as a director of WIS and may not presently have the capacity to fulfil that role. It seems to me that, as Mr Allen accepted in oral submissions, the Court may place weight on the independence of a liquidator appointed to WIS, even if the liquidator does no more than preserve the position without taking active steps which he or she is not funded to take. 50There is, on any view, also insufficient evidence that WIS would have additional financial strength and stability to provide any real confidence that it could continue as a going concern without an appreciable risk that it would be returned to liquidation: Re 311 Hume Highway Fund above at [5]. The orders sought also do not address the Liquidator's costs of the winding up, as will, as I have noted above, ordinarily be required in an application of this kind. For all these reasons, I am not satisfied that an order should be made staying the winding up of WIS. 51Each of the Applicants also claimed to be persons aggrieved by the decision of Messrs Merryweather and Hall, as receivers of Rugama, to have Rugama resolve, as WIS's sole member, to have WIS wound up and the subsequent passage of the resolution to have WIS wound up. They relied on s 1321 of the Corporations Act and s 66 of the Supreme Court Act 1970 (NSW) in that regard. The TLT Receivers point out that the Court's power to review a discretionary decision of a receiver is generally confined to circumstances where the receiver is acting unreasonably or in bad faith: McGrath v Sturesteps [2011] NSWCA 315; (2011) 81 NSWLR 690 at [73]. It does not seem to me that any basis has been established for a finding that the TLT Receivers' decision to wind up WIS was made unreasonably, in bad faith or not for a proper purpose, given the contemporaneous correspondence recognising the dispute as to ownership of the wine stock held by WIS and the fact that the appointment of a liquidator would place the company under the control of an independent party. For this reason, no basis to interfere with that appointment has been established. Order in respect of payout figure 52The second order that was pressed in this application was: "7A. An order that Hall and Merewether [sic] and/or the Australia New Zealand Banking Group Limited provide to [JAG] or the applicants' legal representatives a payout figure for the amount of money owing from [JAG] to the ANZ." 53The Applicants relied on a letter dated 10 December 2013, where the solicitors for ANZ indicated that they did not accept Mrs Irene James' proposal to pay an amount of approximately $125,000 in return for ANZ assigning to Mrs James the registered mortgage over the Rutherford property, and declined to undertake the work necessary to provide an up-to-date payout figure to Mrs James where ANZ did not wish to accept that proposal. Contrary to the Applicants' submissions, that was not a refusal by a mortgagee (ANZ) to provide a mortgagor (JAG) with information necessary to discharge a security, but a refusal to provide information to a third party (Mrs James) who sought, not to discharge, but to acquire the relevant security. I see nothing improper in ANZ's position. 54It does not seem to me that any basis for the order sought by the Applicants has been established. It does not appear that JAG has itself requested a payout figure for the amount of money owing to ANZ, although Mrs James sought the information for the different purpose noted above. Mr Foreman, who appears for ANZ, submitted that ANZ had no difficulty in principle with providing a payout figure to JAG, although he pointed out, correctly, that it may be of limited utility if given at any particular point in time, since a payout of the debt would ultimately require that costs properly incurred by the receivers on an ongoing basis also be paid out. There is nothing to prevent the Liquidators seeking such information, if it seeks to do so, and there is nothing to prevent the Applicants undertaking discussions with the Liquidators as to the basis on which that might properly take place. There is, however, no reason for the Court to order the ANZ or the TLT Receivers provide such information where JAG has not presently sought it, or to provide that information to the Applicants' legal representatives who do not represent JAG in that regard. Orders in respect of delivery up of books and stock of WIS 55The third and fourth orders that were pressed in this application were: "8 An interim order directing Fraser and Honey: (a) To deliver up to [WIS] the books of [WIS] in their control and possession; (b) To deliver up to [WIS] the stock of [WIS] in their control and possession; (c) To file and serve within 7 days an affidavit setting out the books and stock of [WIS] they took possession of and what has happened to those books and stock. 9.An interim order directing Hall and Merewether [sic]: (a) To deliver up [WIS] the books of [WIS] in their control and possession; (b) To deliver up to [WIS] the stock of [WIS] in their control and possession; (c) To file and serve within 7 days an affidavit setting out the books and stock of [WIS] they took possession of and what has happened to those books and stock; (d) To deliver up the books of Wine National Pty Ltd, Liquor National Pty Ltd, James Estate Wines Pty Ltd, Sundara Pty Ltd, Print National Pty Ltd and Print National Australia Pty Ltd to Cussen and Strawbridge within 48 hours; (e) Deliver up to Cussen and the applicant a copy of information stored on the hard drives of the computer serves [sic] taken from 10 Denny Street Broadmeadow, Burroway Road Homebush, 56 The Avenue Wickham and 16 - 18 Carter Street Homebush." 56These orders were supported as steps necessary to place the business of WIS back in the position that it was when it was wound up, if there was a stay of the winding up. These orders were consequential upon a stay of the winding up of WIS and, since I do not consider the basis for such a stay has been made out, these orders should not be made. Interim restraint of dealing with certain property 57The fifth order that was pressed in this application was: "10. An interim order enjoining any of the defendants, by themselves, their servants or agents from alienating, transferring, encumbering or otherwise dealing with until further order, all wine stock, plant and equipment at or removed from: (a) Rosemount Estate Denman; (b)Burroway Road Homebush Bay; (c) 56 The Avenue Wickham, also known as 56 The Avenue Maryville." 58No basis for this order has been established. At least so far as Messrs Cussen and Strawbridge are concerned, there seems to me to be no need for order 10, so far as the orders made by the Court on 21 October 2013 already adequately deal with the circumstances in which the relevant stock may be sold and the manner in which the proceeds of such a sale may be treated. The fact that there is a dispute about ownership of wine stock does not require that the stock be retained, if the court-appointed receivers properly form the view that it should be sold or otherwise dealt with, since appropriate records can be kept as to the proceeds received on a sale of that stock and those proceeds can be distributed to the persons entitled to them in due course. Removal of court-appointed receivers 59The sixth order that was pressed in this application was: "11. An order setting aside or staying the operation of the ex parte orders made in this Court on 21 October 2013." 60On 21 October 2013, the Court made an order under s 67 of the Supreme Court Act that Messrs Cussen and Strawbridge be appointed as receivers of the bottles of wine stored at the date of that order at a warehouse leased by Wine National Pty Ltd (recs and mgrs apptd) situated at Rosemount Road, Denham and be vested with all powers set out in s 420 of the Corporations Act in respect of the specified stock. That order was made following leave for short service given on 17 October 2013, and there is evidence that Mr Murray James was in court when short service was granted so that he was on notice of the application before the Court on 21 October 2013. Several parties with a potential interest in the stock were represented in respect of that application and do not contest the orders that were made. 61The appointment of Messrs Cussen and Strawbridge as receivers was conditional upon their taking all steps necessary to investigate and adjudicate upon competing claims to the stock; sell the stock after having obtained the agreement of the parties to the proceedings or an order of the Court; and hold the proceeds of any such sale in a separate bank account pending agreement of the parties as to the disposal of that money or further order of the Court. There is evidence that work is being done by Messrs Cussen and Strawbridge in their capacity as court-appointed receivers to identify the ownership of the stock held at Rosemount Estate, as the appointment made by the Court contemplated (Cussen 20.11.2013 [7]-[9]). 62The Applicants contend that, if there is a stay of the winding up of WIS, there is no reason for the receivership constituted by the Court's orders on 21 October 2013 to continue. On the other hand, Mr Katekar, who appears for Messrs Cussen and Strawbridge in their capacity as court-appointed receivers, submits that they should not be removed as receivers of the stock of Rosemount Estate even if the winding up of WIS were stayed, because the competing claims to that stock continue to exist, and a stay or termination of the winding up would put WIS in the hands of Mr David James and Mr Murray James, when at least the former and possibly the latter was in control of WIS at the time those competing claims arose and issues as to the adequacy of the books and records of WIS which might identify ownership of the stock arose. That matter is, of course, a reason not to stay the winding up of WIS, and I have held that the winding up should not be stayed. The Applicants concede that there is no reason for the Court to remove Messrs Cussen and Strawbridge as receivers of the stock if the Court does not order a stay of the winding up of WIS (28.2.2014 T43). That is sufficient to dispose of this application, where I have held that the winding up of WIS should not be stayed. 63I should add, for completeness, that it also appears that the application to set aside the orders made on 21 October would have a potentially significant impact on another entity, Wine National Pty Ltd (recs and mgrs apptd), since there is evidence that it, rather than WIS, operated the business known as "Wine for Life" in which the relevant stock was or may have been used, and it has not been joined as a party to the application so as to be given an opportunity to be heard. Orders and costs 64For these reasons, the application should be dismissed. The Applicants should pay the costs of the Respondents to the application as agreed or as assessed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 May 2014