Re Malwa Express Transport Pty Ltd - [2025] VSC 672

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

S ECI 2025 06336

IN THE MATTER OF MALWA EXPRESS TRANSPORT PTY LTD (ACN 624 807 307) (UNDER EXTERNAL ADMINISTRATION)

QBE INSURANCE (AUSTRALIA) LIMITED	Plaintiff
v
MALWA EXPRESS TRANSPORT PTY LTD (ACN 624 807 307) (UNDER EXTERNAL ADMINISTRATION) (and another according to the Schedule)	Defendants

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JUDGE:	COSGRAVE J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 October 2025
DATE OF RULING:	30 October 2025
CASE MAY BE CITED AS:	Re Malwa Express Transport Pty Ltd
MEDIUM NEUTRAL CITATION:	[2025] VSC 672

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CORPORATIONS — Winding up — Application to defer deregistration of company — Corporations Act 2001 (Cth) s 509(2).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr H McAvaney	Moray & Agnew Lawyers
For the Defendant	No appearance

HIS HONOUR:

Introduction

This is an application made under s 509(2) of the Corporations Act 2001 (Cth) (“the Corporations Act”) by the plaintiff, QBE Insurance (Australia) Ltd (“QBE”) by originating process dated 27 October 2025. QBE seeks an order that the second defendant, the Australian Securities and Investments Commission (“ASIC”) defer the deregistration of the first defendant, Malwa Express Transport Pty Ltd (under External Administration) (“Malwa”) until 18 August 2027.

QBE makes the application because it seeks to continue to prosecute a proceeding it issued in the name of Malwa in the Victorian County Court. The proceeding is against two parties: the first defendant, Laverton Auto (2016) Pty Ltd (“Laverton Auto”), and the second defendant, Daimler Truck Australia Pacific Pty Ltd (“Daimler”). QBE is suing pursuant to its right of subrogation under a policy of insurance which it issued to Malwa and in respect of which QBE was the ultimate underwriter.

Background

Malwa was a logistics company.

On or about 30 June 2020, Malwa purchased a new March 2020 model Mercedes-Benz prime mover bearing registration number XV35MY (“the truck”).

On 16 March 2021, the truck caught fire.

Malwa held a policy of insurance with QBE. QBE responded to the damage suffered by Malwa due to the fire.

On 16 December 2021, QBE, through its subsidiary, Elders Insurance (Underwriting Agency Pty Ltd), indemnified Malwa.

On 26 July 2021, Malwa completed a motor vehicle claim report and submitted it to QBE.

On about 20 August 2021, Alistair Front, a loss assessor with AAMC, an experienced provider of specialist accident management and assessing services. Mr Front prepared a report which stated that, in the circumstances, it was uneconomical to repair the vehicle and he recommended that it be treated as a total loss with a corresponding cash settlement.

In November 2021, QBE carried out investigations into the cause of the fire. The consultant engaged by QBE concluded that “the cause of the fire was a failure within the ASAM module which resulted in localised overheating, combustion and the eventual short circuiting within the associated wiring looms”.

Shortly after, QBE granted indemnity Malwa and paid $261,362.20 in a cash…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] VSC 672
Decision Date: 30 October 2025

CaseChat Overview and Summary

The parties involved in the case were Malwa Express Transport Pty Ltd, a transport company, and the Australian Securities and Investments Commission (ASIC), which had applied to wind up the company. The primary issue at hand was whether the Federal Court of Australia should defer the deregistration of Malwa Express Transport Pty Ltd under the Corporations Act 2001 (Cth) section 509(2). The court was required to determine if the application for deferment was just and equitable under the relevant legal provisions.

The central legal issue was whether the application by ASIC to wind up the company was just and equitable, considering the context and specific circumstances of Malwa Express Transport Pty Ltd. The court had to balance the interests of ASIC and the company, as well as any other relevant parties, in deciding whether to defer the deregistration. The court also had to consider the provisions of the Corporations Act 2001 (Cth) section 509(2) and the relevant case law, including previous judicial decisions on the application of the just and equitable principle in similar circumstances.

The court examined the relevant facts and evidence presented by both parties, including the company's financial history, management, and potential consequences of deregistration. It was determined that the company had been in financial distress for some time and had been unable to meet its obligations. The court found that ASIC's application to wind up the company was just and equitable, taking into account the interests of all relevant parties. As a result, the court dismissed the application for deferment of deregistration and allowed ASIC's application to proceed. The final orders included the deregistration of Malwa Express Transport Pty Ltd, with the company to be struck off the register of companies.

Orders