Re Therma Truck Pty Ltd

The matter of Re Therma Truck Pty Ltd involved an application to appoint a provisional liquidator for the company under section 472(2) of the Corporations Act 2001 (Cth). The applicant, Therma Truck, sought the appointment on the basis that the company was likely to be wound up and that the interests of creditors would be prejudiced if a provisional liquidator were not appointed. The defendants, who were related to the company, contested the application on the grounds that there was no reasonable likelihood of a winding up order being made at the final hearing and that the balance of convenience did not favour the appointment of a provisional liquidator.

The central legal issues before the court were whether there was a reasonable likelihood that a winding up order would be made at the final hearing, and whether the balance of convenience favoured the appointment of a provisional liquidator. The court had to assess the evidence presented by the applicant regarding the financial state of the company and the likelihood of a winding up order being made. Additionally, the court had to consider the potential impact on the company’s creditors and the defendants’ arguments against the appointment of a provisional liquidator.

The court found that the defendants had breached prior undertakings provided to both the court and the applicant, which was a significant factor in its decision. It was determined that there was a reasonable likelihood that a winding up order would be made at the final hearing. The court also found that the balance of convenience supported the appointment of a provisional liquidator, as the interests of creditors would be prejudiced without one. The defendants' arguments against the appointment were not deemed sufficient to outweigh the applicant’s case.

Consequently, the court ordered the appointment of a provisional liquidator for Therma Truck Pty Ltd. The final orders included that a provisional liquidator be appointed to manage the company’s affairs until the final hearing of the winding up application, and that the defendants were directed to provide all necessary information and cooperation to facilitate this process.