In the matter of Tabtill Pty Limited

Tabtill Pty Limited, the applicant, applied to the Federal Circuit Court for leave to apply for the winding up of the respondent, Tabtill Pty Limited, under the Corporations Act 2001 (Cth). The applicant is a company that provided services to the respondent, who had previously guaranteed the debts of the applicant’s client in a different proceeding. Although the outcome of the earlier proceedings has not been finalised, there is evidence that the applicant has issued invoices to the respondent for significant amounts. As the respondent failed to comply with a statutory demand, the court presumes that the respondent is insolvent under s 459C of the Corporations Act 2001 (Cth).

The court had to determine whether the applicant qualified as a creditor, either prospective or contingent, to be granted leave to apply for the winding up of the respondent. The applicant argued it was a contingent creditor as it had not yet been paid for its services, but the debt would become due if the respondent did not fulfil its guarantee. The court examined the nature of contingent debts and whether they could be considered in determining the insolvency of a company. The court also had to decide if the applicant could be granted leave to apply for the winding up of the respondent if it was found to be a contingent creditor, and whether the respondent should be wound up if leave was granted.

The court found that the applicant was a contingent creditor, as the debt would arise if the respondent did not meet its obligations under the guarantee. The court noted that contingent creditors can be considered in determining a company's insolvency. The court granted the applicant leave to apply for the winding up of the respondent and ordered that the respondent be wound up, appointing Bradley Vincent Hellen and Nigel Robert Markey of Pilot Partners as liquidators. The court concluded that the applicant had established that the respondent was insolvent and that there were sufficient grounds for winding up the respondent under s 459P of the Corporations Act 2001 (Cth).