Gerblich v Adplan Pty Ltd (No 3)

The case of Gerblich v Adplan Pty Ltd (No 3) involved a dispute between the plaintiff, Gerblich, and the defendant, Adplan Pty Ltd. The plaintiff sought an order for the winding up of the defendant under section 459P of the Corporations Act 2001, alleging that the defendant was presumed insolvent under section 459C(2)(a) of the Act due to non-compliance with a statutory demand for payment of $2072. The central issue in the case was whether the Originating Process was issued on 12 July or 13 July 2011, as this would determine the validity of the plaintiff’s claim regarding the defendant’s presumed insolvency. The matter was heard in the Supreme Court of South Australia.

The court had to decide whether the Originating Process was indeed filed on 12 July 2011, as the plaintiff claimed, or whether it was only filed on 13 July 2011, which would invalidate the plaintiff's argument regarding the defendant's presumed insolvency. This hinged on whether the plaintiff had fulfilled the requirement of paying the filing fee before the document could be accepted by the court registry. The court examined the interpretation of relevant regulations and previous case law, particularly focusing on the decision in Tytler v Corbett, to ascertain whether the fee had been effectively paid on 12 July. The plaintiff argued that there were appropriate arrangements in place with a solicitor for the payment of the fee, but the court found that these arrangements did not result in the fee being paid on the required date.

The court held that the Originating Process was not filed on 12 July 2011, but only on 13 July 2011, based on the interpretation of the Supreme Court Regulations 2005 and the decision in Tytler v Corbett. The court found that the plaintiff had not fulfilled the necessary conditions for the fee to be considered paid on 12 July. This conclusion meant that the plaintiff could not rely on the defendant’s presumed insolvency as a basis for the winding-up order. The court left open the possibility for the plaintiff to pursue a claim for the repayment of the filing fee under section 130(2) of the Supreme Court Act, but indicated that this would require further substantiation.

The court's final orders were that the plaintiff's claim for the winding-up of the defendant based on presumed insolvency was invalid due to the improper timing of the filing of the Originating Process. The court also indicated that if the plaintiff wished to pursue a claim for the repayment of the filing fee, it would need to provide additional evidence and arguments to support such a claim.