ACN 093 117 232 Pty Ltd (in liq) v Intelara Engineering Consultants Pty Ltd (in liq)

The special purpose liquidator of the first plaintiff, ACN 093 117 232 Pty Ltd, sought a declaration that an Asset Sale Agreement was voidable under the Corporations Act 2001 (Cth) and judgment in default of the defendant, Intelara Engineering Consultants Pty Ltd, also in liquidation. The court found that the Asset Sale Agreement was an insolvent transaction, an uncommercial transaction, an unreasonable director-related transaction, and a voidable transaction under various sections of the Act. The court also granted the liquidator's request for judgment in default of the defendant.

The court considered whether to exercise its discretion to make the declarations sought by the liquidator, despite the absence of an active contradictor in the proceedings. However, the court found that the liquidator had provided persuasive evidence to support the allegations made in the statement of claim, and that the declarations would have some utility in obtaining relief for the employees of the first plaintiff. The court also noted that the declarations would mark the disapproval of the Court in relation to the contravening conduct.

The court ordered that the former employees of the first plaintiff who had their employment transferred to the defendant may prove in the winding up of the first plaintiff for the employee entitlements that would have been owing to them had their employment terminated on 7 December 2015. The court also ordered that the judgment be made nunc pro tunc, given that the proceedings had already been commenced.