In the matter of Day & Night Online Transport Pty Ltd (in liq) [2018] NSWSC 796

In the matter of Day & Night Online Transport Pty Ltd (in liq) [2018] NSWSC 796

The court set aside the winding-up order because the company provided a prompt and reasonable explanation for its non-appearance, promptly discharged all relevant debts and liquidator's fees, faced no opposition from the liquidator or plaintiff, and satisfied the principles for varying orders made in the absence of a party.

Parties
Plaintiff / Respondent: TollAust Pty Ltd; Defendant / Applicant: Day & Night Online Transport Pty Ltd; Liquidator: Mr P Hutchinson
Jurisdiction
Australia
Judgment Date
28 May 2018
Procedural Posture
Application to Set Aside Winding Up Order / Decision on Application
Outcome
Application granted; winding-up order set aside; leave granted for director to apply; defendant to pay liquidator's ongoing fees.
Legal Topics
Winding Up, Setting Aside Court Orders, External Administration, Leave for Director to Act
Corporations Law Civil Procedure Winding Up Setting Aside Court Orders External Administration Leave for Director to Act

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Parties

TollAust Pty Ltd

Plaintiff / Respondent

Day & Night Online Transport Pty Ltd

Defendant / Applicant

Mr P Hutchinson

Liquidator

Procedural Posture

Application to Set Aside Winding Up Order / Decision on Application

Legal Issues

  1. 1 Whether the court should set aside a winding-up order made in the absence of the company.
  2. 2 Whether leave should be granted to the director to bring the application in the name of the company while in liquidation.

Ratio Decidendi

The court set aside the winding-up order because the company provided a prompt and reasonable explanation for its non-appearance, promptly discharged all relevant debts and liquidator's fees, faced no opposition from the liquidator or plaintiff, and satisfied the principles for varying orders made in the absence of a party.

Court Disposition

Application granted; winding-up order set aside; leave granted for director to apply; defendant to pay liquidator's ongoing fees.

Orders

  • Pursuant to UCPR 2005 (NSW), r 36.16(2)(b), the orders made on 1 May 2018 be set aside.
  • The defendant pay the liquidator's reasonable fees and expenses, including legal fees, from 17 May 2018 up to and including today, as assessed or agreed.