Druin v Caporale Designs - [2009] NSWSC 739

CITATION: Druin v Caporale Designs [2009] NSWSC 739

HEARING DATE(S): 6 July 2009

JUDGMENT DATE :
6 July 2009

JURISDICTION: Equity

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 6 July 2009

DECISION: 1. Order that the interlocutory process filed on 1 June 2009 be dismissed. 2. Order that the applicant pay the liquidator's costs of the interlocutory process. 3. Otherwise make no order as to costs of the interlocutory process. 4. The exhibits may be returned after 28 days.

CATCHWORDS: CORPORATIONS – application to set aside order that company be wound up and that liquidator be appointed – order made in absence of company – failure to disclose order of Local Court for payment of judgment debt by instalments – no fundamental irregularity - presumption of insolvency due to failure to satisfy or set aside statutory demands – presumption not rebutted – application to terminate winding up under s 482 Corporations Act 2001 (Cth) – absence of evidence as to company’s solvency – application dismissed

LEGISLATION CITED: Corporations Act 2001 (Cth)

CASES CITED: Double Bay Newspapers Pty Limited & Ors v Fitness Lounge Pty Limited [2006] NSWSC 226; (2006) 57 ACSR 131

PARTIES:
Druin Pty Ltd
v
Caporale Designs Pty Ltd

FILE NUMBER(S): SC 2706/09

COUNSEL: Plaintiff: J Papalia
Defendant: R Caporale (director)
Liquidator: J Rozea
Supporting Creditor (ATO): I Chan

SOLICITORS: Plaintiff: de Mestre & Company Solicitors
Defendant: n/a
Liquidator: Gray & Perkins
Supporting Creditor: Australian Taxation Office

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

WHITE J

Monday, 6 July 2009

2706/09 Druin Pty Ltd v Caporale Designs Pty Ltd

JUDGMENT

1 HIS HONOUR: The applicant, Ms Rosa Caporale is a director of the defendant, Caporale Designs Pty Limited. On 28 May 2009 the court ordered that the defendant company be wound up and that Mr David Hurst be appointed liquidator.

2 Ms Caporale applies for an order:

“ 1. To set aside the matter and reinstate Caporale Designs
back to normal status.

2. Request that the court’s appointed liquidator be directed

to cease all procedure pending the courts

decision on the matter etc

3. Request that the courts

direct the deletion of all judgments

with respect to the matter.

3 She also seeks costs. Ms Caporale has presented the application without the benefit of legal assistance.

4 I take the application to be brought on two grounds: first, for an order setting aside the winding up order pursuant to r 36.16(2)(b) being an order made in the absence of the defendant; and alternatively, an order under s 482 of the Corporations Act 2001 (Cth) terminating the winding-up.

5 There was no appearance for the defendant before the Registrar on 28 May 2009.

6 The plaintiff (petitioning creditor) relied on a presumption of insolvency arising from non-compliance with a statutory demand. The evidence showed that the statutory demand of the plaintiff had been served on 20 March 2009 for an amount of $13,148.38. The affidavit of final…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Druin v Caporale Designs

Details

AGLC: Druin v Caporale Designs [2009] NSWSC 739
Case: [2009] NSWSC 739
Decision Date: 6 July 2009

CaseChat Overview and Summary

The matter of Druin v Caporale Designs involved a dispute where the plaintiff sought to set aside an order that the company, Caporale Designs, be wound up and a liquidator be appointed. This case was heard in the Federal Court of Australia. The plaintiff argued that the order was made in the absence of the company and that there was a failure to disclose an order of the Local Court for payment of a judgment debt by instalments. The court was tasked with determining whether there was a fundamental irregularity in the proceedings that warranted setting aside the winding-up order and if the presumption of insolvency arising from the failure to satisfy or set aside statutory demands could be rebutted.

The court examined the arguments presented by the plaintiff regarding the failure to disclose the Local Court order and considered whether this constituted a fundamental irregularity. The court also assessed whether the presumption of insolvency was properly rebutted by evidence of the company's solvency. In determining these issues, the court applied relevant provisions of the Corporations Act 2001 (Cth). The court found that the failure to disclose the Local Court order did not amount to a fundamental irregularity. Additionally, the presumption of insolvency due to the company's failure to respond to statutory demands remained unrebutted, as there was no evidence of the company's solvency provided.

Given the findings, the court dismissed the plaintiff's application to set aside the winding-up order and to terminate the winding up. The court concluded that there was no fundamental irregularity in the proceedings and that the presumption of insolvency had not been successfully rebutted. Consequently, the application to terminate the winding up was dismissed.

Orders