In the matter of Pax In Bello Pty Limited [2019] NSWSC 889

In the matter of Pax In Bello Pty Limited [2019] NSWSC 889

The Court terminated the winding up because, having regard to Mr Osborne's undertakings, the Company would cease to act as trustee and would not trade, its identified creditor debts and the liquidator's remuneration would be paid or sufficiently provided for, related-party liabilities would be subordinated, and no creditor, ASIC, the liquidator or other relevant interested person opposed the application. In those circumstances, the state of affairs that led to the winding up no longer justified continuation of the liquidation.

Jurisdiction
Australia
Judgment Date
24 May 2019
Procedural Posture
Application to Set Aside a Winding Up Order or Alternatively Terminate the Winding Up of a Company / Notice of Motion Heard and Determined Ex Tempore
Outcome
The winding up of Pax In Bello Pty Limited (in liq) was terminated and control was returned to its directors.
Legal Topics
['termination of Winding Up' 'company Liquidation' 'solvency' 'creditor Interests' 'undertakings' 'corporate Trustee']
['corporations' 'insolvency' 'equity'] ['termination of Winding Up' 'company Liquidation' 'solvency' 'creditor Interests' 'undertakings' 'corporate Trustee']

Case Brief

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Procedural Posture

Application to Set Aside a Winding Up Order or Alternatively Terminate the Winding Up of a Company / Notice of Motion Heard and Determined Ex Tempore

Legal Issues

  1. 1 ['Whether the winding up order made in respect of Pax In Bello Pty Limited should be set aside under r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) or the winding up terminated under s 482 of the Corporations Act 2001 (Cth).' 'Whether the state of affairs that required the Company to be wound up no longer existed, including whether creditors and the liquidator would be paid and whether the Company was or would be solvent.' 'Whether the Court should accept undertakings concerning retirement or cessation of the Company as trustee, non-trading, payment of liabilities, start-up capital for a new trustee and subordination of related-party creditor claims.']

Ratio Decidendi

The Court terminated the winding up because, having regard to Mr Osborne's undertakings, the Company would cease to act as trustee and would not trade, its identified creditor debts and the liquidator's remuneration would be paid or sufficiently provided for, related-party liabilities would be subordinated, and no creditor, ASIC, the liquidator or other relevant interested person opposed the application. In those circumstances, the state of affairs that led to the winding up no longer justified continuation of the liquidation.

Court Disposition

The winding up of Pax In Bello Pty Limited (in liq) was terminated and control was returned to its directors.

Orders

  • ['The Court notes the undertaking given by Mr Osborne to the Court in the form initialled by Black J and placed in the file.' 'Having regard to the undertaking given by Mr Osborne, pursuant to s 482 of the Corporations Act 2001 (Cth), the winding up of Pax In Bello Pty Limited (in liq) be terminated.' 'Control of...