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Re Roberts Construction Group Pty Ltd (No 2)

Re Roberts Construction Group Pty Ltd (No 2)

Case [2025] VSC 620 30 September 2025

Winding Up & Liquidation

Presumptions of Insolvency

Garnishee Order

Insolvency Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

COMMERCIAL COURT
CORPORATIONS LIST

S ECI 2024 03505

IN THE MATTER of ROBERTS CONSTRUCTION GROUP PTY LTD (ACN 641 105 580)

BETWEEN:

DRUMMOND CARPENTRY SERVICES PTY LTD (ACN 618 422 549) AS THE TRUSTEE FOR THE DRUMMOND FAMILY TRUST (ABN 38 730 031 289)	Plaintiff
v
ROBERTS CONSTRUCTION GROUP PTY LTD (ACN 641 105 580)	Defendant

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JUDGE:	Gardiner AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	13 November 2024, 17 June 2025, 15 July 2025, 26 August 2025, 4 September 2025
DATE OF JUDGMENT:	30 September 2025 (revised 6 October 2025)
CASE MAY BE CITED AS:	Re Roberts Construction Group Pty Ltd (No 2)
MEDIUM NEUTRAL CITATION:	[2025] VSC 620

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CORPORATIONS – Application for winding up in insolvency – Whether plaintiff had established presumptions of insolvency under s 459C(2)(b) of the Corporations Act 2001 (Cth) arising from alleged wholly unsatisfied warrant of seizure and sale and partly unsatisfied garnishee order – Finding that warrant not returned unsatisfied – Finding that garnishee order was returned partly unsatisfied – Exercise of discretion under s 467(1)(a) of the Corporations Act2001 (Cth) to dismiss the application despite ground having been proved.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff/substitution applicant	Mr S Rubenstein of counsel on 13 November 2024 Mr A Purton of counsel on 17 June 2025 Mr D Gration of counsel on 15 July 2025, 26 August 2025 and 4 September 2025	Merton Lawyers
For the Defendant	Mr D McAloon of counsel	Eidelweisz Lawyers

TABLE OF CONTENTS

Introduction

Materials relied upon by the parties

Objection to use of ‘without prejudice’ communication

Legal principles
Drummond’s Submissions
Roberts’ Submissions
Consideration

Background

Two Birds project
Adjudication and judgment debt
Statutory interest on Judgment Debt
Second statutory demand and application to set aside
Garnishee orders
NAB Garnishee Order
Westpac Garnishee Order

The Warrant
Other proceedings at the County Court and VCAT

Standing of Drummond to bring the application

Determination of effect of reinstatement

Drummond’s submissions
Roberts’ submissions
Conclusion on the deregistration and reinstatement issue

Supporting creditors

Beenak
Aspire Stairs
G2K Carpentry

Grounds for the winding up application

The Warrant
Drummond’s Submissions
Roberts’ Submissions
Consideration

The Westpac Garnishee Order
Drummond’s Submissions
Roberts’ Submissions
Consideration

The Court’s discretion under s 467(1)(a)

Drummond’s Submissions
Roberts Submission
Consideration

Conclusion

Annexure A: Field Report on the Warrant

HIS HONOUR:

Introduction

By an originating process filed 8 July 2024, the plaintiff, Drummond Carpentry Services Pty Ltd (‘Drummond’), applies under s 459P of the Corporations Act 2001 (Cth) (‘Act’) for an order that the defendant, Roberts Construction Group Pty Ltd (‘Roberts’), be wound up in insolvency pursuant to s 459A of the Act.
Drummond’s application is grounded on the presumption that Roberts is insolvent by operation of s 459C(2)(b) which provides:
(2) The Court must presume that the company is insolvent if, during or after the 3 months ending on the day the application was made:
…
(b)execution or other process issued on a judgment, decree or…

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.

Continue reading Re Roberts Construction Group Pty Ltd (No 2)

Details

AGLC: Re Roberts Construction Group Pty Ltd (No 2) [2025] VSC 620
Case: [2025] VSC 620
Decision Date: 30 September 2025 (revised 6 October 2025)

CaseChat Overview and Summary

Roberts Construction Group Pty Ltd faced an application for winding up by a creditor, who claimed the company was insolvent. The case was heard by the Federal Court of Australia. The creditor argued that the company was unable to pay its debts as they fell due, based on two financial instruments: a wholly unsatisfied warrant of seizure and sale, and a partly unsatisfied garnishee order. The plaintiff sought to establish that these instruments indicated insolvency under section 459C(2)(b) of the Corporations Act 2001 (Cth).

The court had to determine whether the warrant of seizure and sale was indeed wholly unsatisfied, and if the garnishee order was partly unsatisfied. The court examined the evidence presented and concluded that the warrant had not, in fact, been returned unsatisfied. However, the garnishee order was found to be partly unsatisfied. The court also needed to consider the exercise of its discretion under section 467(1)(a) of the Corporations Act 2001 (Cth) to dismiss the winding up application, despite the insolvency ground being established.

The court held that even though the creditor had proved a ground for winding up, it was appropriate to exercise its discretion under section 467(1)(a) to dismiss the application. The court took into account various factors, including the company’s ability to pay its debts and the likelihood of the company continuing to trade. Ultimately, the court determined that dismissing the application was in the best interests of the company and its creditors. The court's decision was based on the conclusion that winding up the company would not serve the interests of justice.

Orders