New Wilkie woes grow as BDO chases fees

Cop a creditors statutory demand, make sure you apply to have it set aside within the 21 day period specified by the Act.

That is the stark reality for demand recipients with a NSW Supreme Court judge yesterday finding that applying to set aside a demand beyond the deadline was not something the court had jurisdiction to indulge, at least not in the circumstances advanced by the parties’ legal representatives.

In terms of evidence put before the court this particular stoush began in February when BDO Corporate Finance issued a demand to New Wilkie Energy Group Pty Limited (NWEG) for payment of a fees incurred in the provision of advice in respect of unspecified transactions.

NWEG is currently one of the few New Wilkie group companies not in administration under the control of the KordaMentha trio of David Johnstone, Richard Tucker and David Osborne. Whether it remains solvent after yesterday’s outcome would seem to be up to BDO.

The court heard that correspondence was first exchanged in February between lawyers for BDO and Domenic Martino, the most colourful of all former Deloitte CEOs and a NWEG director since December 30, 2023.

Read into evidence was a chain of emails and attachments dating back as far as February 22 which included a covering letter and a copy of the statutory demand.

While Martino didn’t commence his set aside application until March 25, he argued via his counsel University Chambers’ Bede “the Venerable” Haines that actual service of the demand was not effected until March 4, which if correct would mean the set aside application was brought just in time.

There was argument about the distinctions between “actual service” and “deemed service” and Haines made the point, unconvincing as it was, that Martino had not been a director of NWEG when BDO was engaged, but it all came to naught with the judge dismissing the application with costs.

Barring any appeal the ball’s now in BDO’s court in respect of whether it wants to seek to have NWEG wound up.