Taylor, in the matter of Origin Internet Solutions Pty Ltd (in liquidation) (No 2) [2004] FCA 1354

Taylor, in the matter of Origin Internet Solutions Pty Ltd (in liquidation) (No 2) [2004] FCA 1354

The winding up was terminated exceptionally to avoid prejudice to creditors and give effect to the deed of company arrangement, though such orders are not usual where only creditor benefit is at stake. Leave was granted to SASI to bring action for insolvent trading as the claim appeared to meet legal requirements and was not clearly extinguished by the deed.

Parties
Plaintiff: Barry Keith Taylor; Company: Origin Internet Solutions Pty Ltd (in liquidation); Plaintiff: SASI Marketing and Advertising Pty Ltd; Defendant: John Albert Williams; Defendant: Gregory Donald Williams
Jurisdiction
Australia
Judgment Date
25 October 2004
Procedural Posture
Corporations – Liquidation / Application to Terminate Winding Up and for Leave to Bring Action Against Director
Outcome
Termination of winding up granted; leave to commence action against directors granted.
Legal Topics
Termination of Winding Up, Deed of Company Arrangement, Leave to Bring Action for Insolvent Trading, Creditors' Rights
Corporations Law Insolvency Termination of Winding Up Deed of Company Arrangement Leave to Bring Action for Insolvent Trading Creditors' Rights

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Parties

Barry Keith Taylor

Plaintiff

Origin Internet Solutions Pty Ltd (in liquidation)

Company

SASI Marketing and Advertising Pty Ltd

Plaintiff

John Albert Williams

Defendant

Gregory Donald Williams

Defendant

Procedural Posture

Corporations – Liquidation / Application to Terminate Winding Up and for Leave to Bring Action Against Director

Legal Issues

  1. 1 Whether the winding up of Origin Internet Solutions Pty Ltd should be terminated
  2. 2 Whether leave should be granted to SASI Marketing and Advertising Pty Ltd to bring action against directors for insolvent trading

Ratio Decidendi

The winding up was terminated exceptionally to avoid prejudice to creditors and give effect to the deed of company arrangement, though such orders are not usual where only creditor benefit is at stake. Leave was granted to SASI to bring action for insolvent trading as the claim appeared to meet legal requirements and was not clearly extinguished by the deed.

Court Disposition

Termination of winding up granted; leave to commence action against directors granted.

Orders

  • The company's liquidation be terminated, effective from 22 September 2004.
  • Leave granted to SASI Marketing and Advertising Pty Ltd to bring an action under s 588M against the directors for insolvent trading, with the condition that SASI verify its statement of claim by affidavit.