AMP Workers Compensation Services (NSW) Ltd v Tryjed P/L

[1994] FCA 768

JUDGMENT No. ...JhK.../ 2k..

FgDERAL COURT OF AUSTRALIA	1
NEW SOUTH WALES DISTRICT REGISTRY )	No. NG 3421 of 1994

&NERAL DIVISION 1

BETWEEN :

AMP WORKERS COMPENSATION

SERVICES (NSW) LIMITED

Applicant

AND :

TRYJED PTY LIMITED

Respondent

CORAM:	SACKVIJAE J.
DATE :	FRIDAY, 7 OCTOBER 1994
P~~ :	S ~ N E Y  RECEIVED

FEDERAL COURT OF

AUSTRALIA

REASONS FOR JUDGKENT REQNCTRV

HIS HONOUR: In this matter an application has been referred

to me as the duty judge because the Registrar took the view that there is insufficient material upon which a winding up order could be made on the application of a creditor of the company, Tryjed Pty Ltd.

Under section 459(C)(2) of the Cor~orations Law the Court is required to presume that a company is insolvent if during or after the three months ending on the day when the application was made, the company failed to comply with a statutory demand. Mr Collinge, who appears on behalf of the applicant,	circumstances of the present case because the failure was not	accepts that section 459(C)(2) does not apply in the
within the period specified in that subsection.
~r Collinge nonetheless says that there is sufficient evidence
to justify winding up the company on the ground that it is insolvent. He accepts that the fact that needs to be proved is that the company is indeed insolvent. Although Mr Collinge has not taken me to the evidence in detail, as I follow it all that is relied upon is proof of service of the statutory demand coupled with proof that no payment has been made by Trijed Pty Ltd following service of the statutory demand.
The difficulty that the application encounters, in my view, is that, once the benefit of the statutory presumption is not available, it becomes a matter of assessing the totality of the evidence to determine whether the company is indeed insolvent. All that appears in the evidence at present is a claim by the applicant that Trijed Pty Ltd is owed an amount of $8,208.90 in respect of a premium due in respect of a policy of workers' compensation insurance. The premium is
said to have been payable for the premium year, 12 February 1992 to 23 December 1992, but the actual premium was said to
have been payable on 14 January 1994.
In the absence of further evidence as to the capacity of the company to pay its debts as and when they fall due it does not seem to me that the mere non-compliance with a notice justifies the court in reaching that conclusion that the company is insolvent within the meaning of the Cor~orations
&W. There may be very many reasons why the company has not paid the sum of $8,208.90 allegedly due in respect of the premium. It may be that the debt is disputed. It may be that, even if not disputed, the company has some other undisclosed reason for not paylng this debt, unconnected with insolvency. Even if the company is being obdurate the failure to pay the debt is not necessarily indicative that the company is unable to pay all its debts as and when they fall due. In short, this evidence is not, in my view, enough of itself to demonstrate the insolvency which Mr Collinge accepts is necessary to be proved before a winding up order can be made.
Accordingly, in the absence of the applicant being able to take advantage of the statutory presumption in section 459C(2) of the Ur~orations Law I do not think the evidence establishes the insolvency of the company; accordingly, I do not think that a winding up order should be made. It follows that the application should be dismissed.
RECORDED NOT TRANSCRIBED

I certify that this and the preceding 2 pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville.

Associate: d d i P&*
Dated: 7 October, 1994