In the matter of Loremo Pty Ltd [2018] NSWSC 1355

In the matter of Loremo Pty Ltd [2018] NSWSC 1355

Mr Phillips had standing to bring the application as the Company's sole director in circumstances where the Company itself could apply and the application reflected his decision as sole director. The evidence showed a substantial probability that a winding up order would be made at least on the just and equitable ground, and likely also on the ground of insolvency, because the sole director no longer wished to act, had solvency concerns, considered it unlikely another director would be appointed, the relevant shareholder's trustee in bankruptcy supported the application, and there was evidence of declining revenue, trading loss and due unpaid loans. A sufficient basis was therefore shown...

Jurisdiction
Australia
Judgment Date
13 August 2018
Procedural Posture
Corporations Winding Up Application and Interlocutory Application for Appointment of a Provisional Liquidator / Ex Tempore Decision on Interlocutory Application After Originating Process and Interlocutory Process Filed
Outcome
Order made appointing Mr Michael Smith as provisional liquidator to Loremo Pty Ltd.
Legal Topics
['winding Up' 'appointment of Provisional Liquidator' 'standing of Sole Director' 'just and Equitable Winding Up' 'insolvency' 'undertaking as to Damages']
['corporations' 'insolvency'] ['winding Up' 'appointment of Provisional Liquidator' 'standing of Sole Director' 'just and Equitable Winding Up' 'insolvency' 'undertaking as to Damages']

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Procedural Posture

Corporations Winding Up Application and Interlocutory Application for Appointment of a Provisional Liquidator / Ex Tempore Decision on Interlocutory Application After Originating Process and Interlocutory Process Filed

Legal Issues

  1. 1 ['Whether the sole director of Loremo Pty Ltd had standing to bring an application for a winding up order of the Company.' 'Whether there was a reasonable prospect that a winding up order would be made on the just and equitable ground or on the ground of insolvency.' 'Whether a provisional liquidator should be appointed to the Company.' 'Whether an undertaking as to damages should be required for the appointment of a provisional liquidator on an ex parte application.']

Ratio Decidendi

Mr Phillips had standing to bring the application as the Company's sole director in circumstances where the Company itself could apply and the application reflected his decision as sole director. The evidence showed a substantial probability that a winding up order would be made at least on the just and equitable ground, and likely also on the ground of insolvency, because the sole director no longer wished to act, had solvency concerns, considered it unlikely another director would be appointed, the relevant shareholder's trustee in bankruptcy supported the application, and there was evidence of declining revenue, trading loss and due unpaid loans. A sufficient basis was therefore shown...

Court Disposition

Order made appointing Mr Michael Smith as provisional liquidator to Loremo Pty Ltd.

Orders

  • ['Mr Michael Smith be appointed provisional liquidator of Loremo Pty Ltd ACN 002 135 864.' 'These orders be entered forthwith.' 'Stand over the winding up application to the Corporations Motions List at 9.45 am on 10 September 2018.' "Reserve liberty to any interested party to apply, on two business days' notice,...