Smith, in the matter of In House Management Service Pty Ltd v In House Management Service Pty Ltd [2010] FCA 1401

Smith, in the matter of In House Management Service Pty Ltd v In House Management Service Pty Ltd [2010] FCA 1401

Although the application was filed one day after the date by which s 459C(2)(a) would have required the Court to presume insolvency, the respondent had never complied with the statutory demand, had not disputed the applicants' claims, and the delay was explained by the Registry's rejection of a superseded form. The Court was satisfied that the respondent was in fact insolvent and exercised its discretion under s 467(1)(c) of the Corporations Act 2001 (Cth) to order that it be wound up in insolvency.

Jurisdiction
Australia
Judgment Date
10 December 2010
Procedural Posture
Application for Winding Up in Insolvency and Appointment of Official Liquidators / Hearing and Orders
Outcome
The respondent was ordered to be wound up in insolvency, official liquidators were appointed, and the applicants' costs were ordered to be taxed and reimbursed out of the property of the corporation.
Legal Topics
['winding Up in Insolvency' 'statutory Demand' 'presumption of Insolvency' 'appointment of Liquidators' 'costs in Winding Up']
['corporations Law' 'insolvency'] ['winding Up in Insolvency' 'statutory Demand' 'presumption of Insolvency' 'appointment of Liquidators' 'costs in Winding Up']

Case Brief

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Procedural Posture

Application for Winding Up in Insolvency and Appointment of Official Liquidators / Hearing and Orders

Legal Issues

  1. 1 ['Whether the respondent should be wound up in insolvency where the winding up application was filed one day after the expiration of three months from failure to comply with a statutory demand.' 'Whether the Court should exercise its discretion under s 467(1)(c) of the Corporations Act 2001 (Cth) to make a winding up order.' "Whether the applicants' costs should be paid by the respondent."]

Ratio Decidendi

Although the application was filed one day after the date by which s 459C(2)(a) would have required the Court to presume insolvency, the respondent had never complied with the statutory demand, had not disputed the applicants' claims, and the delay was explained by the Registry's rejection of a superseded form. The Court was satisfied that the respondent was in fact insolvent and exercised its discretion under s 467(1)(c) of the Corporations Act 2001 (Cth) to order that it be wound up in insolvency.

Court Disposition

The respondent was ordered to be wound up in insolvency, official liquidators were appointed, and the applicants' costs were ordered to be taxed and reimbursed out of the property of the corporation.

Orders

  • ['The respondent, In House Management Services Pty Ltd ACN 127 749 277 be wound up in insolvency.' 'Jason Bettles and Raj Khatri of Worrells Solvency and Forensic Accountants, Level 6, 50 Cavill Avenue, Surfers Paradise, Queensland 4217, official liquidators, be appointed by the Court to act as liquidators of In...