Perpetual Nominee Ltd v NA Investment Holdings Pty Ltd

Perpetual Nominees made an application to wind up NA Investment under section 459P of the Corporations Act 2001, citing insolvency. NA Investment opposed the winding up, seeking leave under section 459S to contest the application on the basis that it relied on or could have relied on grounds to set aside a statutory demand under section 459G. The case before the court was to determine whether NA Investment was entitled to leave under section 459S to oppose the winding up application and, if so, whether the application for winding up should proceed.

The court considered whether the statutory defences available to NA Investment under section 459G were sufficient to satisfy section 459S(2) and allow it to oppose the winding up application. It examined whether NA Investment had a bona fide case or a real prospect of success in setting aside the statutory demand and whether there were other compelling circumstances justifying the opposition. The court found that NA Investment had not satisfied the requirements of section 459S(2), as the potential defences were not strong enough to warrant granting leave to oppose the winding up.

The court dismissed NA Investment's application for leave to oppose the winding up. Given that NA Investment could not satisfy the criteria under section 459S, the court proceeded to wind up the company in insolvency under section 459P. The court ordered that NA Investment be wound up in insolvency and appointed a liquidator to oversee the process.