In the matter of Care A2 Plus Pty Ltd [2024] NSWSC 1677

In the matter of Care A2 Plus Pty Ltd [2024] NSWSC 1677

Where the presumption of insolvency arises from non-compliance with a statutory demand and the defendant has not adduced evidence to rebut that presumption, the Court should order the winding up of the company; the period for determination may be extended nunc pro tunc under s 459R to allow the winding up order to be made, and there is no justification for further adjournment.

Parties
Plaintiff: LDA Capital LLC; Defendant: Care A2 Plus Pty Ltd
Jurisdiction
Australia
Judgment Date
16 December 2024
Procedural Posture
Winding Up Application (corporations) / Determination of Winding Up Application With Orders Made
Outcome
Care A2 Plus Pty Ltd ordered to be wound up in insolvency, Messrs Resnick and Kwok appointed as liquidators, costs of the plaintiff to be costs in the winding up; extension of time for determination of the winding up application nunc pro tunc granted.
Legal Topics
Winding Up, Presumption of Insolvency, Statutory Demand, Substituted Creditor, Slip Rule, Adjournment
Corporations Law Winding Up Presumption of Insolvency Statutory Demand Substituted Creditor Slip Rule Adjournment

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 4 Authorities cited 8 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

LDA Capital LLC

Plaintiff

Care A2 Plus Pty Ltd

Defendant

Procedural Posture

Winding Up Application (corporations) / Determination of Winding Up Application With Orders Made

Legal Issues

  1. 1 Should the period for determination of the winding up application be extended nunc pro tunc under s 459R of the Corporations Act 2001 (Cth)?
  2. 2 Should the winding up application be further adjourned to allow the defendant more time?
  3. 3 Whether requirements for proof of certain procedural matters should be dispensed with under s 467 of the Act.

Ratio Decidendi

Where the presumption of insolvency arises from non-compliance with a statutory demand and the defendant has not adduced evidence to rebut that presumption, the Court should order the winding up of the company; the period for determination may be extended nunc pro tunc under s 459R to allow the winding up order to be made, and there is no justification for further adjournment.

Court Disposition

Care A2 Plus Pty Ltd ordered to be wound up in insolvency, Messrs Resnick and Kwok appointed as liquidators, costs of the plaintiff to be costs in the winding up; extension of time for determination of the winding up application nunc pro tunc granted.

Orders

  • The period within which the winding-up application must be determined, for the purposes of s 459R of the Corporations Act 2001 (Cth), is extended to 30 December 2024.
  • Care A2 Plus Pty Ltd be wound up in insolvency.