Mainfreight International Pty Ltd v Sator Aus Pty Ltd
[2009] VSC 656
•24 April 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. 10035 of 2008
| MAINFREIGHT INTERNATIONAL PTY LTD (ACN 007 252 333) | Plaintiff |
| v | |
| SATOR AUS PTY LTD (ACN 080 783 071) | Defendant |
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JUDGE: | GARDINER AsJ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 April 2009 | |
DATE OF JUDGMENT: | 24 April 2009 | |
CASE MAY BE CITED AS: | Mainfreight International Pty Ltd v Sator Aus Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 656 | |
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CORPORATIONS – External Administration – Application for stay or setting aside orders that defendant be wound up in insolvency pursuant to s 482 of the Corporations Act 2001(Cth) – Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D. Taylor | Mr D. Taylor |
| For the Defendant and Applicant by Interlocutory Process filed 12 February and 11 March 2009 | Elizabeth von Risefer (in person) |
HIS HONOUR:
On 1 December 2008, the Plaintiff, Mainfreight International Pty Ltd (“Mainfreight”), filed an originating process in the Court seeking an order under s 459P of the Corporations Act 2001 (Cth) that Sator Aus Pty Ltd (“Sator”) be wound up in insolvency. The ground of insolvency relied upon was the failure on the part of Sator to comply with a statutory demand which had been served at its registered office seeking payment of a judgment debt in the sum of $7,869.76 obtained by the Plaintiff against Sator in the Melbourne Magistrates’ Court on 23 October 2008 for work and labour done by the Plaintiff for the Defendant in June 2008.
An ASIC extract for Sator obtained on 27 November 2008 states that the location of the registered office of the company was at Bundall Accounting Services, Unit 1, 100 Bundall Road, Bundall, Queensland, 4217 and that it had been at that location from 13 July 2001. The principal place of business of the company from 25 October 2001 was stated to be Level 3, 313 Burwood Road, Hawthorn, Victoria, 3122. The directors of the company were said to be Elizabeth von Risefer and Eustace von Risefer. The address given for the directors was 139 Pebble Beach Drive, Runaway Bay, Queensland, 4216.
The statutory demand was hand delivered to the place described in the ASIC search as the location of the registered office of the company on 30 October 2008 by Wayne Laurence Barnes who swore an affidavit deposing to this on 14 November 2008.
There was no reaction to the statutory demand and Sator thereby committed an act of insolvency on 20 November 2008. The originating process was filed with the Court shortly afterwards on 1 December 2008 with a return date of 4 February 2009.
The originating process, together with an attached Form 1 notice under the Service and Execution of Process Act 1992 (Cth), and an affidavit in support of the originating process was served on Sator by sending it by ordinary pre-paid post to the Bundall address on 2 December 2008. The Plaintiff was complying with the requirements for service on Sator, which has a registered office interstate, under section 9 of the Service and Execution of Process Act. The affidavit of service of Susan Pace of 2 December 2008 neglected to state the actual date that the originating process was mailed to the registered office of the company, but the position in that regard was corrected in an affidavit filed 4 February 2009 where she stated that such documents were posted on 2 December 2008.
In an affidavit filed 12 February 2009, Ms Pace deposes that on 2 December 2009 she also posted copies of the originating process and accompanying documentation to the principal place of business of the company at Level 3, 313 Burwood Road, Hawthorn, Victoria, and to the residential address of the directors stated in the ASIC search, 139 Pebble Beach Drive, Runaway Bay, Queensland, 4216. In addition, copies of the documents were sent to 132 Belgrave Ferny Creek Road, Tecoma, Victoria, 3160. This was the business address of Sator provided by the Plaintiff to its solicitors, and the address provided by Sator’s former solicitors when they withdrew from the record. It was also the address given by Mrs Elizabeth von Risefer in the several affidavits she has filed in the current applications. Each of the covering letters accompanying those documents informed the directors of the Plaintiff’s intention to proceed to obtain a winding up order on 4 February 2009. Ms Pace states that none of the documents sent to the Bundall, Hawthorn, Runaway Bay and Tecoma addresses were returned to the Plaintiff’s solicitor’s office.
In an affidavit filed 12 February 2009, the solicitor for the Plaintiff, Donald Ward Taylor, set out the background to the obtaining of the judgment in the Melbourne Magistrates’ Court against Sator. He states that a letter of demand was sent to the residential address of the directors of Sator at Tecoma on 15 September 2008. Mr Taylor says that the letter was not returned, but Mrs von Risefer denies receiving that letter. There was no response to the letter of demand and a Magistrates’ Court complaint together with the notice required by the Service and Execution of Process Act was served on the Defendant at the registered office of the company at Bundall, Queensland on 24 September 2008. Because there was no appearance, judgment was entered in default on 23 October 2008.
On 4 February 2009, the originating process was returnable before Efthim AsJ. There was no appearance by the company and an order was made that Sator be wound up in insolvency. Clyde Peter White and David Charles Quinn were appointed joint and severally as liquidators for the purposes of the winding up.
On 6 February 2009, a summons was filed in the Court by Zenith Lawyers and Consultants on behalf of “the debtor”, presumably a reference to Sator, in Form 46A of Chapter 1 of the Supreme Court Rules seeking orders that the winding up orders of 4 February be set aside, that the Defendant be granted leave to file a notice of appearance and that the Plaintiff pay the Defendant’s costs of that application.
One of the directors of Sator, Elizabeth von Risefer, filed an affidavit in support of that application on 6 February 2009. In that affidavit she states that she disputes the alleged debt claimed by the Plaintiff and that the registered office of the Defendant was “not correct at the time of service as the accounting firm, Bundall Accounting Services, had moved without prior or notice to me or the defendant company.” She states that the originating motion that was sent by post to Bundall was never received by the Defendant. She says that the Plaintiff was aware of the Defendant’s address in Victoria (she does not state what that address was) and that the parties were in negotiations about the debt. She states that the Plaintiff was fully aware of the correct address for service being Level 3, 313 Burwood Road, Hawthorn, Victoria. It will be recalled that this was one of the addresses to which the Plaintiff had sent copies of the originating process and other documents on 2 December 2008.
Mrs von Risefer contends that Sator had no notice of the hearing of 4 February. She states that Sator would defend this action and that it would apply to the Magistrates’ Court for a re-hearing of the Magistrates’ Court complaint issued by the Plaintiff.
Pausing at this juncture, it is apparent that Sator and those associated with it have not lodged notification of change of registered office of the Defendant as s 142 of the Corporations Act requires. It is apparent that they have not been in contact with the Queensland accountants for several years. The Plaintiff, as it is permitted and indeed required to do, has served the documentation at the registered office in Queensland pursuant to s 109X of the Corporations Act and s 9 of the Service and Execution of Process Act. Further, Mrs von Risefer says nothing in response to the contention by the Plaintiff that copies of the originating process and accompanying documents were sent to the Level 3, 313 Burwood Road, Hawthorn address and to the address in Tecoma which is the current residential address of the directors of the company other than to assert non receipt. Despite the fact that the originating process was not only served at the registered office but at its principal place of business and the residential address of the directors of Sator, Mrs von Risefer denies having notice of the winding up hearing. It is curious that indeed none of the documents served at the various addresses have come to the attention of the directors of Sator.
There is no evidence which suggests that the Plaintiff knew that service at the registered office as stated in the ASIC records would not bring the Magistrates’ Court summons, the statutory demand or the originating process to the attention of Sator. Service by leaving a document at or posting it to the registered office shown on the records maintained by ASIC suffices under s 109X(1)(9) even if the company had in fact changed its office without filing a formal notice with ASIC to that effect.[1] In FP Leonard Advertising Pty Ltd v KD Travel Service Pty Ltd,[2] Santow J stated at pages 136-137 in relation to the legislative precursor to s 109X of the Corporations Act, namely s 220(1) of the Corporations Law:
“The logic of s 220 would seem to be based upon the ‘public convenience’ promoted by this simplification of service: Bishop v Help (1845) 2 CB 45. That is, if a corporation registers on a public register an address as its official office, then the world should enjoy the convenience of being able to treat that as the official place for service of process. A corporation is an artificial creation, enjoying the privilege of legal status by incorporation, while such a deemed location is no less artificial, it follows that such a privilege should carry the reciprocal obligation of providing an official address for service… The deeming nature of s 220 should be given an effective operation. In particular the evident legislative intent of the Parliament to provide an official public address for service would be defeated if a company could flout its obligations by simply failing to notify any change of that office. A resourceful and dishonest company could thus easily avoid service of documents and escape unwanted litigation by simply “de-camping” from the registered office without leaving a trail.”
It is for the corporation to maintain a “satisfactory address”.[3] In addition, there was clearly an awareness of the judgment debt as Mrs von Risefer states that the parties were “…in negotiations about the debt”.
[1]See Chief Commissioner of Stamp Duties v Paliflex Pty Ltd (1999) 17 ACLC 467 at [22]-[32], Re Third Lojebo Pty Ltd [1982] VR 379.
[2](1993) 12 ACSR 136.
[3]See Re Pacific Mobile Phones Ltd (2008) 26 ACLC 1082.
On 12 February 2009, an interlocutory process was filed in the Court by Zenith Lawyers & Consultants on behalf of the “debtor”, again presumably Sator. The application was said to be made under “Insolvency Provisions of the Corporations Act.” It does not identify the particular provisions under which the application is made but the primary ground of relief sought is that the winding up orders made by the Court on 4 February 2009 be set aside or stayed indefinitely i.e. an application under s 482 of the Corporations Act. An application can only be made under that section by the liquidator, a creditor or contributory of the company.[4] It also seeks orders that “any Court action be stayed until the Magistrates’ Court application for a re-hearing listed for 27 February 2009 is heard and determined” and that the liquidators, Messrs White & Quinn, be removed “pursuant to s 482.” This interlocutory process presumably superseded the summons filed on 6 February 2009.
[4]See s 482(1A) of the Corporations Act.
The interlocutory process was supported by an affidavit in support sworn by Mrs von Risefer filed 10 February 2009, which is said to have been filed on behalf of the Defendant, i.e. the company. That affidavit is in identical form to the affidavit sworn by Mrs von Risefer in support of the summons filed 6 February 2009. That interlocutory process came before Efthim AsJ on 13 February 2009. On that occasion, orders were made adjourning the interlocutory process to 27 February 2009. On 12 February 2009, Zenith Lawyers & Consultants wrote to the “Registrar” of the Supreme Court giving notice of ceasing to act and giving the address of the “debtor” as being 132 Belgrave and Ferny Creek Roads, Tecoma.
Mrs von Risefer apparently attempted to set aside the judgment in the Magistrates’ Court after the winding up order was made on behalf of Sator when she had lost her authority as director to do so. The liquidators intervened and declined to prosecute such application on the company’s behalf.
On 27 February 2009, Mrs von Risefer swore a further affidavit, purportedly filed through the agency of Zenith Lawyers & Consultants, despite the fact that they had given notice of withdrawal on 12 February 2009. The affidavit was filed on behalf of “the Defendant.” In that affidavit, Mrs von Risefer again complains that service of the statutory demand was effected at the registered office of the company at Bundall Accounting Services, Unit 1, 100 Bundall Road, Bundall. She states that Bundall Accounting Services had not traded from that address since 2002 and that it is now the branch of a bank. Mrs von Risefer states the Plaintiff and the liquidators were aware that the accounting service was not at the Bundall address but proceeded regardless but, as before, she presented no evidence at all that establishes such “awareness”. Mrs von Risefer does not explain why she and the other director of Sator allowed such an address to be used as the registered office without being in any contact with the persons present at that address for several years. Sator and those associated with it can hardly be heard to complain when parties who have to rely on ASIC records serve documents at that address. As I have observed, it is for the Defendant to maintain a proper registered office and in order for the Plaintiff to affect service of documents it is necessary to serve on it the address notified on the ASIC extract.[5]
[5]See Chief Commissioner of Stamp Duties v Paliflex (1999) 17 ACLC 467 at [26] and [28].
In her affidavit of 27 February 2009, Mrs von Risefer states that the address where the demand was served has been occupied by Westpac for the past twelve months and that there was an “inconsistency” in Mr Barnes’ affidavit deposing that he personally served the statutory demand on the receptionist at Bundall Accounting Services. She states that the debt subject to the demand “was always disputed”. Mrs von Risefer states also that:
“In the face of that dispute the plaintiff still pursued the debt via the Magistrates’ Court but the defendant was not served with a Magistrates’ Court complaint either and that was not discovered until February 2009 either. The Magistrates’ Court re-hearing application is listed for 27 February 2009.”
Mrs von Risefer states that she has not been able to compile all the company records and financial details as requested by the liquidator due to the difficulties in “locating the old company accountant” (who has not been identified). In addition, there were apparent difficulties created by the bushfires at Upwey. She states that:
“I am continuing to make efforts to collate and gather all the information the liquidators have requested and will endeavour to provide them with this in the coming days.”
She concludes with an assertion that she disputes the debt without providing any details as to the bases of that alleged dispute.
The interlocutory process, which had been adjourned on 14 February 2009 to 27 February 2009, was further adjourned to 13 March 2009 in order that Mrs von Risefer could seek legal advice.
On 13 March 2009, the application returned to Court. Shortly before that, on 11 March 2009, a further interlocutory process was filed by Mrs von Risefer on behalf of the Defendant. An affidavit sworn by Mrs von Risefer was filed in support of the application on 13 March 2009. The only difference between this interlocutory process and the one filed 12 February 2009 is that in paragraph 4, after the request for removal of the liquidators pursuant to section 482 of the Corporations Law (sic) the additional words appeared “for failed (sic) to do their duty in the Court of misconduct, dishonesty, grounds (reasons) referred (sic) to Elizabeth von Risefer sworn affidavit at 27 February and 6 March 2009.” At the hearing on 13 March 2009, it was indicated to Mrs von Risefer that Sator had no standing to bring an application under s 482 of the Corporations Act although as a contributory she had such a right. Although the summons and interlocutory processes and the affidavits in support were purportedly filed on behalf on Sator, I have proceeded on the basis that Mrs von Risefer is in reality the applicant. The matter was adjourned to enable her to put the application on a proper footing including putting material before the Court regarding solvency and liaising with the liquidator and the solicitors for the Plaintiff in order to resolve the proceeding. She was told in the plainest of terms on the two occasions that the matter came before me that the application in its current form would not be successful and that she should seek legal advice.
Mrs von Risefer’s affidavit of 13 March 2009 makes complaints about the liquidators’ conduct in respect of stock at 31 Henderson Road, Knoxfield. In paragraph 6, she denies that she informed the liquidators that all of the stock at that address was owed by Sator. She states that:- “the only discussion I had on this date was with David Quinn who asked me for the books of Sator Aust Pty Ltd. I informed him that Sator Aust Pty Ltd does not own anything. My concern was that he not remove any stock belonging to my son, Michail Matsoukatidis.” At paragraph 11, she returns to the issue of the location of the registered office at Bundall in Queensland. In paragraph 15, she again states that there is an inconsistency in Mr Barnes’ affidavit where he said that he personally served the demand on the receptionist. In paragraph 17, she again says that she previously deposed that “the registered office of the defendant was not correct at the time of service as the accounting firm Bundall Accounting Services had moved without prior or notice to me or the defendant company.” In paragraph 18, she again repeats that the Plaintiff was aware of the “correct address” for service being Level 3, 313 Burwood Road, Hawthorn, Victoria. It will be recalled that a copy of the originating process and the accompanying documentation were posted to that address with a covering letter and not returned.
In paragraphs 19 and 20, Mrs von Risefer states that the Defendant had no notice of the statutory demand or the originating process or the hearing on 4 February. In paragraph 23 she claims the letter of demand sent to the Tecoma address by the Plaintiff’s solicitor was not received. In paragraph 26, she states that the claim for monies owed to the Plaintiff in the Magistrates’ Court relates to a disputed debt between the Plaintiff and her son Michail Matsoukatidis, not the Defendant and the Plaintiff. This is the only material which purports to describe what Sator’s defence is to the Magistrates’ Court proceeding but it is not elaborated upon with any detail. Paragraph 29 deposes to the fact that Mrs von Risefer’s son had a sub-lease of the property and that the liquidator has improperly seized stock which belongs to him. She contends in paragraph 31 that Sator was solvent at all relevant times and exhibits a profit and loss statement. That exhibit is “Exhibit EVR-G” to her affidavit and in no way establishes the solvency of the company as required by s 95A of the Corporations Act and the authorities dealing with this subject.[6] The profit and loss statement shows net income of $1,642.90 by way of “commission earned”. It states that it has earned net income of $8,563.73. The source of its income is stated as being warehouse sub-lease of $4,727.28 and commission earned of $7,109.18. Against this is the expense of warehouse rental of $3,272.00. There is no evidence as to Sator’s assets, liabilities, its creditors or most importantly its ability to pay those creditors who are presently due to be paid.
[6]See Ace Contractors v Westgarth Development Pty Ltd [1999] FCA 728; Expile Pty Ltd v Jabbs Excavation Pty Ltd (2003) 45 ACSR 711; Crema (Vic)Pty Ltd v Land Mark Property Developments (Vic) Pty Ltd (2006) 58 ACSR 631 at [138]-[144].
On 27 February 2009, Mr Quinn, one of the official liquidators appointed in the winding up, prepared a report apparently at the request of Efthim AsJ. I assume that that report was generated pursuant to s 482(2) of the Corporations Act which provides:
“On such an application the Court may before making an order direct the liquidator to give a report with respect to a relevant fact or matter.”
That report indicates as follows:-
·Despite extensions of time, the directors of the company had not provided the liquidators with a report as to affairs (this has now been formally rectified but not in substance as the report as to affairs contains no information at all as to Sator’s affairs).
·As regards to the books and records of the company, Mrs von Risefer’s son indicated to Mr Pulverman, an associate of Mr Quinn, that the company’s records were located in Bundall, Queensland. At Mr Pulverman’s later meeting with Mrs von Risefer on 13 February 2009, she indicated that books and records of the company were located at her home and with the company’s accountant. She was requested to provide details of the name of the company’s accountant however, she advised that she would provide them the following week. At a subsequent visit on 18 February 2009, she did not provide the books and records. At that meeting, she advised that the records were with her accountant and when asked to identify the accountants, she said she did not know the name but that they were located on the Nepean Highway. Subsequent investigations revealed that the accountant could possibly be a Mr Nictas by reason that he was listed as a trade reference on the application completed by Mrs von Risefer with the Plaintiff, Mainfreight International Pty Ltd. When the liquidator approached Mr Nictas’ office, the receptionist there indicated that she was not familiar with the company nor with the directors. Subsequently, Mr Nictas advised that he was the accountant for Sator Australia Pty Ltd and Mr Quinn, assuming that that was a reference to the company, requested him to deliver the company’s books by 4 March 2009. These have not been forthcoming.
·Mrs von Risefer has indicated to Mr Quinn that the company did not have any assets. She initially advised that the company was operating however, later during the discussion she advised that this was not the case. During Mr Quinn’s meeting with Mrs von Risefer on 13 February 2009, she advised that all of the company’s assets were located in the warehouse in Knoxfield and there were no other assets owned by the company. Subsequently, the warehouse at Henderson Road, Knoxfield was broken into, apparently by Mrs von Risefer’s son in an attempt to remove stock. With the assistance of the police, the stock was returned.
·The liabilities of the company are said to total $34,516.72, the major creditor being Mainfreight International Pty Ltd, the applicant creditor. The liquidator reports that the Australian Taxation Office has advised him that the company has never lodged an income tax return or business activity statement, despite being incorporated in 1997. As such, its current taxation liabilities are unknown. Mrs von Risefer claims that the company only commenced operations in March 2008 but this is contradicted by documentation which reveals that one creditor, Reflex Corporate Offices Pty Ltd, entered into an agreement with the company in 2001.
·There have been no calls for proofs of debt.
·Mr Quinn has received what he described as “minimal cooperation” from the directors. Mrs von Risefer has failed to provide him with the books and records or to advise the details of the company’s accountant. When details of the accountant were forthcoming the accountant with whom contact was made has not produced such books to the liquidator. She states that the company is solvent but the company has no liabilities and she states that the company has no assets. There have been several appointments made via Mrs von Risefer to meet with Mr Quinn however, she has cancelled each of those meetings.
On 3 April 2009, the liquidators filed a certified copy of the report as to affairs of the company. That document is signed by Mrs von Risefer who describes herself as “former director”. She states that it took her three hours and twenty minutes to complete the statement of affairs however the document provides no details whatsoever.
The matter returned to Court on 24 April 2009 and Mrs von Risefer filed a further affidavit on that day. In that affidavit, she states that one of the liquidators, Mr Quinn, has breached s 1317AE of the Corporations Act. This provision, which deals with confidentiality in the context of whistleblowers, has no relevance in the context of this application. Exhibit “EVR-1” to that affidavit are copies of two affidavits filed by the liquidators in proceeding 5199 of 2009, in which Mrs von Risefer’s son Michail Matsoukatidis is Plaintiff and they are Defendants. The first of these is an affidavit of one of the liquidators, Mr Quinn, who deposes to various events which have occurred since the winding up order and confirms on oath a number of the matters alleged in the liquidators’ report as to the dealings between his office and those associated with Sator. The other affidavit is by Grace Maria Polgar, who is the administration supervisor of the Plaintiff in the winding up application. Her affidavit, if accepted, would justify the liquidators’ decision not to prosecute the application to set aside the judgment. While Ms Polgar was not cross examined in this application, her account of events in that affidavit are entirely plausible. Mrs von Risefer claims that the liquidator’s appointment by the Court “was not an appointment but a mere ratification or certifying of the appointment by the Plaintiff’s solicitors who appointed the liquidators on 21 November 2008.” This contention is without substance. All that occurred on 21 November 2008 was the obtaining of the liquidators’ consent to be appointed in the event that a winding up order was made, as is required and contemplated by s 532(9) of the Corporations Act and rule 5.5 of the Corporations Rules 2003. The remainder of her affidavit rehearses the issues of the Magistrates’ Court application to set aside the judgment, the service of the statutory demand and her complaints about the liquidators diverting her family’s mail.
Legal Issues
The application in its various forms in this case was an application to stay or terminate the winding up. In Re Warbler Pty Ltd 1982,[7] the following principles emerged:
[7]1 ACLC 323.
1.The granting of a stay is a discretionary matter and there is a clear onus on the applicant to make out a positive case for a stay.
2.There must service of notice of the application for a stay on all creditors and contributories in proof of this.
3.The nature and extent of the creditors must be shown and whether or not all debts have been or will be discharged.
4.The attitude of creditors, contributories and the liquidator to the application.
5.The current trading position and general solvency of the company should be demonstrated.
6.If there has been non-compliance by directors with their statutory duties as to the giving of information or furnishing the statement of affairs, a full explanation of the reasons and circumstances should be given.
7.The general background and circumstances leading to the winding up orders should be explained.
8.The nature of business carried out by the company should be demonstrated on whether or not the conduct of the company was in any way contrary to commercial morality or the public interest.
This general position has been confirmed by Austin J in Vero Workers Compensation New South Wales Ltd v Ferretti Pty Ltd (in liq).[8]
[8](2006) 57 ACSR 103.
It is a requirement in applications for a stay of a winding up order to establish that the company is solvent and either has paid or can pay its creditors in full and will be solvent when returned to its normal existence. The applicant has not demonstrated that in this instance. In addition, the attitude of the creditors and the liquidators must be taken into account. The major creditor and liquidator oppose the application. The applicant has a clear onus to make out a positive case for a stay. In this case, nothing is known of the general position as to creditors as there are no books and records available to the liquidator and the statement of affairs is completely uninformative. The liquidators have been unable to satisfy themselves as to what the true position of the company’s affairs are. It has not been said how the liquidators position as to their remuneration will be dealt with, indeed rather than come to an accommodation with them in this regard, the applicant seeks their removal without, in my view, any basis for doing so. Further, the conduct of the company and its officers has been delinquent.
On Mrs von Risefer’s own material it is evident that the company has not maintained a current registered office and has obviously not been in contact for several years with the accountants who act as its registered office. It is the company’s responsibility to maintain a current registered office. Significantly, the company has never filed a return with the Australian Taxation Office in respect of its income or for goods and services tax despite being incorporated in 1997 which goes to the “commercial morality of the company.” The company appears to have no books of account. I consider that on the basis of the issue of commercial morality alone, refusal of the application would be justified in this instance.[9] The lack of cooperation by Mrs von Risefer with the liquidators since the making of the winding up order only fortifies my view in that regard. Whatever the actual position in regards to receipt of the various documents at the different addresses of Sator and those associated with it, this has been overtaken by the absence of any material in regard to the solvency of the company and its failure to comply with its obligations with regulatory and revenue authorities. The Court could not conscientiously restore this company to those who formerly controlled it.
[9]See In Re Telescriptor Syndicate, Limited [1903] Ch 174 at 182-3; Re Skay Fashions Pty Ltd (in liq) (1987) 5 ACLC 46 at 49; Re Origin Internet Solutions Pty Ltd (in liq) (No. 2) (2004) 23 ACLC 88 at 91.
Both applications by interlocutory process and the summons filed 6 February 2009 are dismissed. As I have observed, Mrs von Risefer was in reality the applicant in the applications for a stay and I order that she pay the costs of the applications including costs reserved on 13 February 2009, 27 February 2009, 13 March 2009 and 3 April 2009.
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