In the matter of Fawaz Pty Ltd [2019] NSWSC 1010

In the matter of Fawaz Pty Ltd [2019] NSWSC 1010

The Court was persuaded to exercise its discretion to terminate the winding up because the evidence showed that the company was likely solvent or able to continue operating as a going concern, known creditors had been paid or sufficient funds existed for payment, the liquidators' remuneration and expenses were to be paid from the company's bank account, the company's failure to attend the winding up hearing was satisfactorily explained by non-receipt of the proceedings, and there was no demonstrated commercial impropriety, lack of commercial morality or public interest reason to refuse the orders.

Jurisdiction
Australia
Judgment Date
07 August 2019
Procedural Posture
Corporations Application for Termination of Winding Up / Notice of Motion Filed on 7 August 2019 Seeking Orders Under S 482 of the Corporations Act 2001 (cth) and Setting Aside of a Winding Up Order Made on 1 July 2019
Outcome
Winding up terminated; winding up order set aside; control of Fawaz Pty Ltd returned to its director; originating process otherwise dismissed; otherwise no order as to costs.
Legal Topics
['termination of Winding Up' 'solvency' 'return of Control of Company to Director' 'setting Aside Winding Up Order']
['corporations Law' 'insolvency'] ['termination of Winding Up' 'solvency' 'return of Control of Company to Director' 'setting Aside Winding Up Order']

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Procedural Posture

Corporations Application for Termination of Winding Up / Notice of Motion Filed on 7 August 2019 Seeking Orders Under S 482 of the Corporations Act 2001 (cth) and Setting Aside of a Winding Up Order Made on 1 July 2019

Legal Issues

  1. 1 ['Whether the winding up of Fawaz Pty Ltd should be terminated under s 482 of the Corporations Act 2001 (Cth).' 'Whether the order of Registrar Walton made on 1 July 2019 winding up Fawaz Pty Ltd should be set aside under r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW).' "Whether the company was solvent and whether creditors and the liquidators' remuneration and expenses had been paid or secured." "Whether the circumstances leading to non-attendance at the winding up hearing and the company's conduct raised any issue of commercial morality or public interest."]

Ratio Decidendi

The Court was persuaded to exercise its discretion to terminate the winding up because the evidence showed that the company was likely solvent or able to continue operating as a going concern, known creditors had been paid or sufficient funds existed for payment, the liquidators' remuneration and expenses were to be paid from the company's bank account, the company's failure to attend the winding up hearing was satisfactorily explained by non-receipt of the proceedings, and there was no demonstrated commercial impropriety, lack of commercial morality or public interest reason to refuse the orders.

Court Disposition

Winding up terminated; winding up order set aside; control of Fawaz Pty Ltd returned to its director; originating process otherwise dismissed; otherwise no order as to costs.

Orders

  • ['Pursuant to s 482 of the Corporations Act 2001 (Cth), the winding up of Fawaz Pty Ltd (ACN 160 605 774) (in liquidation), be terminated.' 'Pursuant to r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW), the order of Registrar Walton made on 1 July 2019 winding up Fawaz Pty Ltd (in liquidation) on 1 July 2019...