In the matter of Skypac Aviation Pty Ltd (in liq)

The matter before the court involved Skypac Aviation Pty Ltd, a company in liquidation, and its former creditor, which had supplied an aircraft to the company. The dispute centred around a payment made by the company to the creditor after the commencement of the winding up, with the creditor seeking to have the payment declared void under the Corporations Act 2001 (Cth). The court had to determine whether the payment was a void disposition under s 468(1) of the Act and whether the exemption in s 468(2)(b) applied to the circumstances. Additionally, the court had to decide whether it should exercise its discretion to declare the payment is not void.

The primary legal issue was whether the payment made by the company to the creditor post-winding up was a void disposition under s 468(1) of the Corporations Act 2001 (Cth). If the payment was void, the court needed to consider whether the exemption in s 468(2)(b) applied, which would allow the payment to stand if the creditor had given credit to the company for more than three months prior to the winding up and the payment was made within a reasonable time after the winding up commenced. Furthermore, the court had to consider whether it should exercise its discretion under s 468(3) to declare the payment is not void if the exemption applied.

The court examined the provisions of the Corporations Act 2001 (Cth) and found that the payment was indeed a void disposition under s 468(1) as it was made after the commencement of the winding up. However, the court also found that the exemption in s 468(2)(b) applied as the creditor had given credit to the company for more than three months prior to the winding up, and the payment was made within a reasonable time after the winding up commenced. The court then exercised its discretion under s 468(3) and declared that the payment was not void. The court held that the creditor was entitled to the payment and that the company in liquidation was not required to repay the amount.

The court ordered that the payment made by Skypac Aviation Pty Ltd to its former creditor was not void and that the creditor was entitled to retain the payment. The court further ordered that the company in liquidation was not required to repay the amount to the liquidator for distribution to creditors. This decision provides clarity for companies in liquidation and their creditors regarding void dispositions and the application of exemptions under the Corporations Act 2001 (Cth).