In the Matter of Enviro Energy Australia Pty Ltd (in liquidation)

The applicant, a contributory and sole director of Enviro Energy Australia Pty Ltd (in liquidation), sought an order under the Corporations Act 2001 (Cth) to either terminate or stay the winding-up of the company. The applicant argued that the winding-up was not in the interests of creditors or the public interest, and sought an adjournment to make arrangements to discharge the company’s liabilities. The applicant provided undertakings to seek an adjournment and to provide the company's books and records to the liquidator.

The court was required to consider the onus on the applicant to make out a positive case for the application, the considerations relevant to granting such an application, and whether the applicant's failure to provide the company's books and records to the liquidator affected the outcome. The court also needed to determine whether the applicant's proffered undertakings were a proper basis for an adjournment and whether it was in the public interest or interests of commercial morality to restore stewardship of the company to the applicant’s control. Additionally, the court had to decide whether the company’s liquidator and a major creditor were entitled to indemnity costs due to the applicant’s delinquent conduct in pursuing the application.

The court found that the applicant had not made out a positive case for the application, as there was evidence that the company was insolvent, and the applicant had failed to provide the company's books and records to the liquidator. The court held that there was no evidence from an external party to corroborate the applicant's assertions as to the company's financial position. The court concluded that it was not in the public interest or interests of commercial morality to restore stewardship of the company to the applicant’s control, and the applicant's proffered undertakings were not a proper basis for an adjournment. Finally, the court held that the liquidator and major creditor were entitled to indemnity costs due to the applicant’s delinquent conduct in pursuing the application.

The court ordered that the winding-up of Enviro Energy Australia Pty Ltd be continued and that the applicant pay the liquidator’s and major creditor’s indemnity costs.