Maersk A/S v Urimbo Group Pty Ltd
[2023] FedCFamC2G 253
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Maersk A/S v Urimbo Group Pty Ltd [2023] FedCFamC2G 253
File number(s): SYG 1487 of 2022 Judgment of: JUDGE STREET Date of judgment: 6 March 2023 Catchwords: BANKRUPTCY - voluntary winding up– stay – no bona fide defence Legislation: Corporations Act 2001 (Cth): s 494, s 496, s 500(2) Division: Division 2 General Federal Law Number of paragraphs: 3 Date of hearing: 6 March 2023 Place: Sydney Counsel for the Applicant Mr D Reynolds Solicitor for the Applicant HWL Ebsworth Respondent No appearance ORDERS
SYG 1487 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MAERSK A/S ARBN 600 976 725
Applicant
AND: URIMBO GROUP PTY LTD ABN 36 155 968 764
Respondent
order made by:
JUDGE STREET
DATE OF ORDER:
6 MARCH 2023
THE COURT ORDERS THAT:
1.The proceedings are stayed under section 500(2) of the Corporations Act 2001 (Cth) subject to leave of the Court.
THE COURT NOTES THAT:
1.The matter was fixed for a final hearing today and, but for the above statutory provision following the declaration of solvency and voluntary winding up resolution, judgment would have been entered today in the sum of $60,145.49 and the Court would have fixed costs on an indemnity basis in the amount of $24,300.00 and that there was no bona fide defence.
2.The Court has not seen the declaration as to solvency under s 494 of the Corporations Act 2001 (Cth), the Court has seen the answer to A7 in the Form 507 and that it is the duty of the liquidator as soon as practicable to apply for a winding up in insolvency if of the opinion of insolvency under s496 of the Corporations Act 2001 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET
The Court records that it has been provided information identifying that there has been a voluntary winding up resolution by the respondent, as a result of which, there is a statutory stay, subject to the court’s leave, under s 500(2) of the Corporations Act 2001 (Cth) (“the Act”).
The proceedings were fixed today, 6 March 2023, for hearing. The proceedings are ones in respect of which there was no bona fide defence, and the court intends recording of the orders it would have made for the benefit of the liquidator, where there has been unsatisfactory delay in attendance to payment of obligations of outstanding indebtedness by the respondent in respect of services provided by the applicant to the respondent.
The Court also notes that interest, under the court rules, would have run from today, on the judgment. The Court would have entered judgment in favour of the applicant against the respondent, with accrued interest, for the sum of $60,145.49, and would have made an indemnity costs order against the respondent in the sum of $24,300.00. In that regard there was no bona fide defence and the conduct of the respondent in failing to pay the outstanding indebtedness was completely unreasonable and without any merit. To assist the liquidator, the Court proposes to ensure that there is an appropriate note added to the order staying the proceedings. Further, having seen the form 507 and the answer to A7 and the obviously long outstanding indebtedness in this case, the Court proposes to record the duty of the liquidator, if of an opinion identified under s 496 of the Act, to move for winding up in insolvency.
I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 31 March 2023
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