Dray v Trackmate [2003] NSWSC 482

Dray v Trackmate [2003] NSWSC 482

Because the defendant failed to comply with a statutory demand and the proceeding was commenced within three months, the presumption of insolvency under s 459C(2)(a) arose and was unrebutted, satisfying s 459P(3). The relevant discretionary considerations, including the public interest in winding up an insolvent company and the plaintiff's interests as shareholder and director, supported granting leave and making a winding up order.

Jurisdiction
Australia
Judgment Date
02 June 2003
Procedural Posture
Application for Winding Up in Insolvency and for Leave Under S 459 P(2) of the Corporations Act 2001 (cth) / Hearing of Application; Ex Tempore Judgment
Outcome
Leave granted; winding up order made.
Legal Topics
['winding Up' 'application by Contributory/director for Leave' 'statutory Demand' 'presumption of Insolvency' 'discretion to Grant Leave']
['corporations' 'insolvency'] ['winding Up' 'application by Contributory/director for Leave' 'statutory Demand' 'presumption of Insolvency' 'discretion to Grant Leave']

Case Brief

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Procedural Posture

Application for Winding Up in Insolvency and for Leave Under S 459 P(2) of the Corporations Act 2001 (cth) / Hearing of Application; Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether there was a prima facie case that the defendant company was insolvent for the purposes of s 459P(3).' 'Whether the Court should exercise its residual discretion to grant leave under s 459P(2) to a contributory/director who was not the creditor under the statutory demand.' 'Whether a winding up order should be made under s 459A.']

Ratio Decidendi

Because the defendant failed to comply with a statutory demand and the proceeding was commenced within three months, the presumption of insolvency under s 459C(2)(a) arose and was unrebutted, satisfying s 459P(3). The relevant discretionary considerations, including the public interest in winding up an insolvent company and the plaintiff's interests as shareholder and director, supported granting leave and making a winding up order.

Court Disposition

Leave granted; winding up order made.

Orders

  • ['Leave granted to the plaintiff under s 459P(2) to bring the proceeding for winding up the company in insolvency.' 'The defendant company is to be wound up in insolvency under s 459A.' 'A liquidator is to be appointed.']