Ace Contractors & Staff Pty Ltd v Westgarth Development Pty Ltd

FEDERAL COURT OF AUSTRALIA

Ace Contractors & Staff Pty Ltd v Westgarth Development Pty Ltd
[1999] FCA 728

CORPORATIONS – insolvency – application to wind up company in insolvency – non-compliance with statutory demand – presumption of insolvency arising therefrom – whether company discharged onus of demonstrating solvency –effect of assertion of solvency – relevance of value of company assets – discretion of Court to decline to order winding up.

Corporations Law, ss 459A, 459C(2) and (3), 459G, 459P, 459Q, 459S(1)(b) and (b)

Elite Motor Campers Australia v Leisureport Pty Ltd (1996) 22 ACSR 235 referred to
Commissioner of Taxation v Simionato Holdings Pty Ltd (1997) 15 ACLC 477 referred to
Commonwealth Bank of Australia v Begonia (1993) 11 ACLC 1075 at 1081 referred to
Re Citic Commodity Trading Pty Ltd v JBL Enterprises (WA) Pty Ltd [1998] FCA 232 referred to
Leslie v Howship Holdings Pty Ltd (1997) 15 ACLC 459 at 463, 465-467, 471 referred to
Rees v Bank of New South Wales (1964) 111 CLR 210 referred to
Re Tweeds Garages Ltd [1962] Ch 406 at 410 referred to
Melbase Corporation Pty Ltd v Segenhoe Ltd (1995) 13 ACLC 823 at 832 referred to
Sandell v Porter (1966) 115 CLR 666 at 671 referred to
Taylor v ANZ Banking Group Ltd (1988) 6 ACLC 808 at 812 referred to
Hamilhall Pty Ltd v AT Phillips Pty Ltd (1994) 54 FCR 173 referred to
Re Presha Engineering (Aust) Pty Ltd (1983) 1 ACLC 675 at 676, 677 referred to
Mibor Investments Pty Ltd v Commonwealth Bank of Australia [1994] 2 VR 290 at 293 referred to
Aizen v Essendon Travel (Vic)Pty Ltd (1994) 49 FCR 594 referred to
Texel Pty Ltd v Commonwealth Bank of Australia [1994] 2 VR 298 at 299 referred to
Whelpton v Braams Constructions Pty Ltd (1994) 12 ACLC 881 referred to
Kekatos v Holmark Construction Company Pty Ltd (1995) 13 ACLC 1581 at 1582 referred to

ACE CONTRACTORS & STAFF PTY LTD (ACN 007 256 242) v WESTGARTH DEVELOPMENT PTY LTD (ACN 067 115 931)

VG 3403 of 1998

WEINBERG J
1 JUNE 1999
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 3403 OF 1998

BETWEEN:	ACE CONTRACTORS & STAFF PTY LTD (ACN 007 256 242) Applicant
AND:	WESTGARTH DEVELOPMENT PTY LTD (ACN 067 115 931) Respondent
JUDGE:	WEINBERG J
DATE OF ORDER:	1 JUNE 1999
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application for an order that the respondent be wound up in insolvency be adjourned to 15 June 1999.

2.If, however, before that date the respondent has paid to the applicant the sum of $112,106.04 the application stand dismissed.

3.The respondent pay the applicant’s costs, including all reserved costs, of and incidental to this application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 3403 OF 1998

BETWEEN: ACE CONTRACTORS & STAFF PTY LTD
(ACN 007 256 242)
Applicant