Druin v Caporale Designs [2009] NSWSC 739

Procedural Posture

Corporations Winding Up Proceeding / Interlocutory Application to Set Aside Winding Up Order or Terminate the Winding Up

Legal Issues

1. 1 ['Whether the winding-up order made in the absence of the defendant should be set aside under r 36.16(2)(b).' 'Whether the winding-up should be terminated under s 482 of the Corporations Act 2001 (Cth).' 'Whether failure to disclose the Local Court instalment order and misstating the amount due constituted a fundamental irregularity warranting setting aside the winding-up order.' 'Whether the presumption of insolvency arising from failure to satisfy or set aside statutory demands was rebutted.']

Ratio Decidendi

The instalment order and corrected debt position would not have been material to the Registrar's decision to make a winding-up order, particularly because any doubt as to the plaintiff's standing could have been addressed by the Deputy Commissioner of Taxation as a substituted creditor. The failure to disclose those matters was not a fundamental irregularity. The company failed to satisfy or set aside statutory demands, the presumption of insolvency was not rebutted, and there was no evidence of solvency sufficient to justify setting aside the order or terminating the winding-up. Discretionary considerations, including non-compliance with the liquidator's demand for books and records,...

Court Disposition

Interlocutory process dismissed.

Orders

• ['Order that the interlocutory process filed on 1 June 2009 be dismissed.' "Order that the applicant pay the liquidator's costs of the interlocutory process." 'Otherwise make no order as to costs of the interlocutory process.' 'The exhibits may be returned after 28 days.']