Re Citic Commodity Trading Pty Ltd v JBL Enterprises (WA) Pty Ltd [1998] FCA 232

Re Citic Commodity Trading Pty Ltd v JBL Enterprises (WA) Pty Ltd [1998] FCA 232

JBL Enterprises (WA) Pty Ltd failed to comply with the statutory demand and did not successfully establish grounds material to proving solvency. The guarantee was valid, non est factum defence failed due to director's negligence, and set-off was not available to JBL as guarantor. Consequently, JBL should be wound up in insolvency.

Parties
Applicant: CITIC COMMODITY TRADING PTY LTD; Respondent: JBL ENTERPRISES (WA) PTY LTD
Jurisdiction
Australia
Judgment Date
13 March 1998
Procedural Posture
Corporations Winding Up Application / Final Judgment
Outcome
JBL Enterprises (WA) Pty Ltd ordered to be wound up, Garry John Trevor appointed liquidator, costs to applicant as costs in winding up.
Legal Topics
Winding Up, Statutory Demand, Guarantee, Non Est Factum, Set Off, Solvency
Corporations Law Insolvency Winding Up Statutory Demand Guarantee Non Est Factum Set Off Solvency

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Parties

CITIC COMMODITY TRADING PTY LTD

Applicant

JBL ENTERPRISES (WA) PTY LTD

Respondent

Procedural Posture

Corporations Winding Up Application / Final Judgment

Legal Issues

  1. 1 Whether JBL Enterprises (WA) Pty Ltd should be wound up for failing to comply with statutory demand
  2. 2 Validity of guarantee allegedly executed after appointment of external administrator
  3. 3 Applicability of defence of non est factum

Ratio Decidendi

JBL Enterprises (WA) Pty Ltd failed to comply with the statutory demand and did not successfully establish grounds material to proving solvency. The guarantee was valid, non est factum defence failed due to director's negligence, and set-off was not available to JBL as guarantor. Consequently, JBL should be wound up in insolvency.

Court Disposition

JBL Enterprises (WA) Pty Ltd ordered to be wound up, Garry John Trevor appointed liquidator, costs to applicant as costs in winding up.

Orders

  • JBL Enterprises (WA) Pty Ltd have leave to oppose the winding up application.
  • JBL Enterprises (WA) Pty Ltd be wound up and that Garry John Trevor be appointed liquidator.