In the matter of ZYS Supreme Services Pty Ltd
[2016] NSWSC 1962
•22 February 2016
Supreme Court
New South Wales
Medium Neutral Citation: In the matter of ZYS Supreme Services Pty Ltd [2016] NSWSC 1962 Hearing dates: Monday, 22 February 2016 Date of orders: 22 February 2016 Decision date: 22 February 2016 Jurisdiction: Equity - Corporations List Before: Brereton J Decision: Interlocutory application dismissed
Catchwords: CORPORATIONS – application to set aside winding up in insolvency – where interlocutory process is defective Legislation Cited: (CTH) Corporations Act 2001, s 482 Category: Principal judgment Parties: Deputy Commissioner of Taxation (plaintiff) Representation: Counsel:
Solicitors:
C Bavin (solicitor) (plaintiff)
M Kooster (amicus)
Hunt & Hunt (plaintiff)
File Number(s): 2015/221871
Judgment (ex tempore)
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HIS HONOUR: Before the Court is an application purportedly made by interlocutory process filed on 2 December 2015 by an unnamed applicant who, it would seem from the attached affidavit, is Naeem Ahmed, a director of the company ZYS Supreme Services Pty Limited which was wound up in insolvency by an order of the Court made on 15 September 2015. The interlocutory process seeks an order setting aside the winding up order on various bases, including that the order was made in the absence of a director or legal representative of the defendant. That ground does not appear, prima facie, to be correct as someone sought and obtained leave to appear on behalf of the company at the time when the winding up application was heard. It therefore seems that this is a case in which any application of the kind contemplated would have to be brought pursuant to (CTH) Corporations Act 2001, s 482.
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The interlocutory process is defective, in that it does not identify an applicant. It would need to be served on the liquidator and on ASIC. The applicant would need to establish that the circumstances which brought about the winding up – namely insolvency – no longer pertained, and that the company could safely be returned to the management of the directors.
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When the matter was before the Court on 1 February 2016, the Registrar directed that the registry notify Mr Ahmed of the adjourned date. That was done. Mr Ahmed sent an email to the Court on 18 February 2016, requesting an adjournment on the basis that an unnamed legal representative refused to attend Court at the last moment, and he did not have time to discuss the case with other attorneys, and had to go overseas due to some family emergency and would not be present in Australia; he provided an itinerary which showed that he would apparently have left Australia yesterday, 21 February 2016, for Islamabad, and will not return to Australia until 25 April 2016.
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Mr Ahmed’s affidavit evidence tends to indicate that the company is not able to pay its debts as and when they fall due, because it seems to contemplate that a two year instalment arrangement would be required.
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Dismissal of this application will not affect Mr Ahmed's ability – should he wish to do so – to make a fresh application under s 482, armed with the appropriate evidence.
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The Court orders that:
the interlocutory process filed 2 December 2015 be dismissed; and
the applicant, Naeem Ahmed, pay the plaintiff’s costs, fixed in the sum of $1,200.
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Decision last updated: 29 November 2017
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