GFK & Sons Pty Limited, in the matter of GFK & Sons (Balmain) Pty Limited

In the matter of GFK & Sons (Balmain) Pty Limited, the Federal Court of Australia was presented with an application by GFK & Sons Pty Limited to set aside a winding-up order that had been issued against GFK & Sons (Balmain) Pty Limited. The plaintiff, Workers Compensation Nominal Insurer, had applied for the winding up of the defendant company. The central issue before the court was whether the winding-up order should be set aside based on the criteria established in relevant legal precedents. Specifically, the court needed to determine if the winding-up order was made in the absence of the defendant and if there was sufficient evidence to indicate that the company was solvent.

Justice Jacobson reviewed the principles established in cases such as George Ward Steel Pty Limited v Kizkot Pty Limited and Labraga v Pomfret, which outline the criteria for setting aside a winding-up order. The court noted that the onus on the applicant to show solvency is lower than that required for terminating a winding up. The evidence presented included the absence of the defendant during the original winding-up hearing, an explanation for this non-attendance, and indications of the company's solvency. Although there were some reservations about the explanation for the non-attendance, the court found that the evidence was sufficient to indicate solvency. Additionally, the liquidator and the plaintiff did not oppose the setting aside of the winding-up order, and there were no other factors that would be against public policy. Given these considerations, Justice Jacobson decided to exercise the court's discretion to set aside the winding-up order.

The final orders of the court were that the winding-up order made by the District Registrar on July 30, 2010, be set aside, and it was noted that the parties had agreed on the payment of all relevant costs.