In the matter of Rosecell Pty Limited [2016] NSWSC 1914

In the matter of Rosecell Pty Limited [2016] NSWSC 1914

The winding up orders were set aside because the statutory demand and originating process were served at the Company's registered office, which was ASH's own address, without effective steps to bring those documents to the Company's attention, and that position was not squarely drawn to the Registrar's attention. Those fundamental irregularities affected the Company's right to be heard and the integrity of the Court's processes, making it unnecessary to prove solvency for relief under rr 36.15 and 36.16.

Jurisdiction
Australia
Judgment Date
12 December 2016
Procedural Posture
Application to Set Aside Winding Up Orders / Amended Interlocutory Process
Outcome
Winding up order set aside and ancillary orders made.
Legal Topics
['winding Up' 'application to Set Aside Winding Up Orders' 'service at Registered Office' 'fundamental Irregularity' 'right to Be Heard' 'leave to Oppose Winding Up Application' 'indemnity Costs']
['corporations' 'practice and Procedure'] ['winding Up' 'application to Set Aside Winding Up Orders' 'service at Registered Office' 'fundamental Irregularity' 'right to Be Heard' 'leave to Oppose Winding Up Application' 'indemnity Costs']

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Procedural Posture

Application to Set Aside Winding Up Orders / Amended Interlocutory Process

Legal Issues

  1. 1 ['Whether winding up orders made in the absence of the Company should be set aside under rr 36.15 and 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) because of fundamental irregularity in service and the conduct of the winding up application.' 'Whether proof of solvency was required where the winding up order was obtained through a fundamental irregularity.' 'Whether the Company should be granted leave under s 459S of the Corporations Act 2001 (Cth) to oppose the winding up application on the ground that it disputes the debt claimed in the statutory demand.' 'Whether costs of the application should be ordered on an indemnity basis.']

Ratio Decidendi

The winding up orders were set aside because the statutory demand and originating process were served at the Company's registered office, which was ASH's own address, without effective steps to bring those documents to the Company's attention, and that position was not squarely drawn to the Registrar's attention. Those fundamental irregularities affected the Company's right to be heard and the integrity of the Court's processes, making it unnecessary to prove solvency for relief under rr 36.15 and 36.16.

Court Disposition

Winding up order set aside and ancillary orders made.

Orders

  • ['The orders of the Court being 1, 2 and 3 made on 19 October 2016 and entered on 24 October 2016 be set aside.' "Order under s 459S of the Corporations Act 2001 (Cth) that, in relation to the Plaintiff's application to wind up the Defendant in insolvency, the Defendant be granted leave to oppose the application on...