Highup Pty Ltd (in Liquidation) v Gubas

Highup Pty Ltd (in Liquidation) v Gubas was a case in which the liquidator of a company sought to recover benefits from a related entity that resulted from transactions conducted by the insolvent company. The defendant, Gubas, was alleged to have received payments from the plaintiff, which were intended to discharge a debt owed by Gubas to the plaintiff. The dispute was heard in the Federal Court of Australia, where the court had to determine whether the plaintiff was presumed to be insolvent during the relevant period, whether the transactions were insolvent, and whether they were uncommercial and therefore voidable.

The legal issues before the court included whether the plaintiff was presumed to be insolvent during the relevant period, whether the transactions were insolvent, and whether they were uncommercial and voidable. Additionally, the court had to consider the impact of the defendant's failure to provide evidence, and whether the court could draw adverse inferences against the defendant based on that failure.

The court found that the plaintiff had not satisfied the requirements of section 588FH(1)(c) of the Corporations Act 2001 (Cth), and therefore, the plaintiff had failed to establish its case for the orders sought. Consequently, the application was dismissed. The court noted that the plaintiff had not indicated whether it wished to be heard on costs if it lost, but the court was inclined to order the plaintiff to pay the defendant's costs, as taxed if not agreed. Any submissions to the contrary should be filed within fourteen days, with any answering submissions within seven days thereafter. The court indicated that any application for costs would be dealt with on the papers unless a party sought a further oral hearing, which could be at that party's cost if found not to be justified.