11 I am satisfied that all necessary elements have been proved in order to warrant the winding up of the Defendant on the basis of failure to comply with the Statutory Demand. The Defendant has been given the opportunity to prove solvency, but has failed to prove solvency, and I have earlier refused a further adjournment application on the part of the Defendant for the reasons which I have given.
12 The only submission now made by Mr M. Foley, who appears for the Defendant in opposition to the winding up order, is that there is evidence sufficient to show that the Plaintiff is not a creditor of the Defendant. The submission is founded upon evidence from a director of the Plaintiff, Mr Rohan, who was cross examined by Mr Foley today, that the Plaintiff has assigned the Defendant's debt to a mercantile agency.
13 There is no evidence of any notice of assignment of the debt which conforms to s.12 of the Conveyancing Act 1919 (NSW). If there is any assignment of the debt, and I should add that no deed of assignment has been produced in evidence, then the assignment can only take effect in equity. Mr Foley, I think, concedes as much, but he says that as this is a court of equity, it must have regard to the equities so that, as I understand his submission, in the eyes of equity the Plaintiff is no longer a creditor of the Defendant. He cited no authority for this submission and I cannot accept it.
14 In New South Wales the Equity Division of the Supreme Court is certainly one of the courts administering the Corporations Act . However, whether it be the Supreme Court or the Federal Court which is deciding whether or not a person is a "creditor" for the purposes of s.459E or for the purpose of an application to wind up a company under s.459P of the Corporations Act , the status of the applicant is determined simply according to the meaning which the word "creditor" has in the Corporations Act . It is well established that for the purposes of a winding up application "creditor" includes both a creditor at law and a creditor in equity: In re Steel Wing Co Limited [1921] 1 Ch 349, at 355. It seems to me that "creditor" must have the same meaning in s.459E for the purposes of a statutory demand, at least where the equitable creditor is the assignee in equity of the whole, rather than a part, of the company's debt: cf. In re Steel Wing at 357; Manzo v 555/255 Pitt Street Pty Limited (1990) 21 NSWLR 1, at 8; Reale Bros Pty Ltd v Reale [2003] NSWSC 666, at paras.56, 57. It follows that, where there is an equitable assignment of a debt, either the creditor at law or the creditor in equity may make a statutory demand on the debtor and may apply to have the debtor wound up in default of compliance; it is of no consequence that the creditor at law, if paid by the debtor, will have to account to the creditor in equity.
15 In the present case, in the absence of any evidence of a notice of assignment complying with s.12 of the Conveyancing Act , the Plaintiff is, at the very least, a creditor at law of the Defendant, so that it continues to have standing to sue the Defendant for the debt, to serve the statutory demand upon which it relies, and to make an application to wind up the Defendant founded on non-compliance with the demand.
16 Accordingly, I am satisfied that there is no proper basis upon which the Defendant is able to resist a winding up order at the instance of the Plaintiff.
17 I order that Glengor Pastoral Company Pty Ltd be wound up in accordance with the Corporations Act , and that Martin John Green be appointed as the Liquidator of the company. The exhibits may be returned. I direct that the orders be passed and ordered forthwith.