Gyrro Pty Ltd v Deputy Commissioner of Taxation [2009] FCA 1477

Gyrro Pty Ltd v Deputy Commissioner of Taxation [2009] FCA 1477

The winding up order should not be set aside because the Defendant gave no satisfactory explanation for its non-appearance, delayed about five months before applying, and would have had difficulty showing an arguable basis to resist winding up given the presumed insolvency and lack of evidence that its artwork assets could be converted to cash or that other financial support was available. However, the winding up should be terminated under s 482(1) because the Plaintiff's debt had been paid, the Plaintiff and liquidator consented subject to costs, ASIC did not wish to be heard, there were no public interest considerations weighing against termination, and no outstanding issue as to...

Jurisdiction
Australia
Judgment Date
11 December 2009
Procedural Posture
Corporations Insolvency Winding Up Proceeding / Application by the Defendant to Set Aside a Winding Up Order Under O 35, R 7(2)(a) of the Federal Court Rules and Application by a Contributory to Terminate the Winding Up Under S 482(1) of the Corporations Act 2001
Outcome
Application to set aside the winding up order refused; winding up terminated under s 482(1) of the Corporations Act 2001 with effect from 14 December 2009; Interlocutory Process otherwise dismissed.
Legal Topics
['winding Up Order Made in Absence of Defendant' 'setting Aside Entered Orders' 'termination of Winding Up' "creditor's Statutory Demand" 'solvency' 'contributory Application']
['corporations' 'insolvency' 'taxation'] ['winding Up Order Made in Absence of Defendant' 'setting Aside Entered Orders' 'termination of Winding Up' "creditor's Statutory Demand" 'solvency' 'contributory Application']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Corporations Insolvency Winding Up Proceeding / Application by the Defendant to Set Aside a Winding Up Order Under O 35, R 7(2)(a) of the Federal Court Rules and Application by a Contributory to Terminate the Winding Up Under S 482(1) of the Corporations Act 2001

Legal Issues

  1. 1 ["Whether the Court should exercise its discretion under O 35, r 7(2)(a) of the Federal Court Rules to set aside the winding up order made in the Defendant's absence." 'Whether the Court should terminate the winding up of the Defendant under s 482(1) of the Corporations Act 2001.' 'Whether the Defendant had provided a satisfactory explanation for non-appearance and delay, and whether solvency or an arguable basis to resist winding up was shown.' 'Whether the interests of creditors, the liquidator, contributories and the public interest supported termination of the winding up.']

Ratio Decidendi

The winding up order should not be set aside because the Defendant gave no satisfactory explanation for its non-appearance, delayed about five months before applying, and would have had difficulty showing an arguable basis to resist winding up given the presumed insolvency and lack of evidence that its artwork assets could be converted to cash or that other financial support was available. However, the winding up should be terminated under s 482(1) because the Plaintiff's debt had been paid, the Plaintiff and liquidator consented subject to costs, ASIC did not wish to be heard, there were no public interest considerations weighing against termination, and no outstanding issue as to...

Court Disposition

Application to set aside the winding up order refused; winding up terminated under s 482(1) of the Corporations Act 2001 with effect from 14 December 2009; Interlocutory Process otherwise dismissed.

Orders

  • ['Pursuant to s 482(1) of the Corporations Act 2001, the winding up of the Defendant is terminated with effect from 14 December 2009.' "The Applicants pay the Plaintiff's costs of the winding up not already paid as taxed or agreed including the costs of the application hearing before me." "The Applicants pay on an...