FEDERAL COURT OF AUSTRALIA
Sensis Pty Ltd v Premier Event Hire Pty Ltd, in the matter of Premier Event Hire Pty Ltd [2006] FCA 1673
SENSIS PTY LTD (ACN 007 423 912) v PREMIER EVENT HIRE PTY LTD (ACN 105 833 190)
VID 1034 OF 2006YOUNG J
28 NOVEMBER 2006
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 1034 OF 2006
IN THE MATTER OF PREMIER EVENT HIRE PTY LTD (ACN 105 833 190)
BETWEEN:
SENSIS PTY LTD (ACN 007 423 912)
PlaintiffAND:
PREMIER EVENT HIRE PTY LTD (ACN 105 833 190)
Defendant
JUDGE:
YOUNG J
DATE OF ORDER:
28 NOVEMBER 2006
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The winding up of Premier Event Hire Pty Ltd (ACN 105 833 190) is terminated on 28 November 2006.
2.This order be entered by the order being authenticated in Court in accordance with O 36 rr 5 and 7 of the Federal Court Rules.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 1034 OF 2006
IN THE MATTER OF PREMIER EVENT HIRE PTY LTD (ACN 105 833 190)
BETWEEN:
SENSIS PTY LTD (ACN 007 423 912)
PlaintiffAND:
PREMIER EVENT HIRE PTY LTD (ACN 105 833 190)
Defendant
JUDGE:
YOUNG J
DATE:
28 NOVEMBER 2006
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
In this matter, Mr Nicolo Gulino, a director and shareholder of Premier Event Hire Pty Ltd (in liquidation) (‘the company’) makes an application under s 482(1) of the Corporations Act 2001 (Cth) for an order terminating the winding up of the company. An order for the winding up of the company was made by this Court on 16 November 2006 in consequence of the company’s non-compliance with a statutory demand served by the plaintiff, Sensis Pty Ltd.
Mr Gulino has filed an affidavit dated 22 November 2006 in which he explains that he did not address the question of compliance with a notice with sufficient attention or treat it sufficiently seriously. Subsequently, Mr Gulino has arranged for the company to pay to the plaintiff the entirety of the debt owed to it together with costs requested by the plaintiff. Mr Gulino has also arranged for the liquidator to be paid the entirety of his fees. The plaintiff does not oppose this application for the termination of the winding up, having been paid all moneys due to it.
The liquidator also does not oppose the termination of the winding up. By letter dated 22 November 2006, the liquidator has confirmed that the company is solvent and that the petitioning creditor has been paid in full. He also confirms that his fees and costs have been paid and that he has no objection of the company being taken out of liquidation. In his affidavit, Mr Gulino deposes that the company does not owe any money to a creditor and that is it able to pay its debts as and when they fall due. In the circumstances, I am prepared to make the order sought.
I have also been asked to make an order that my order terminating the winding up be authenticated in Court in accordance with O 36 rr 5 and 7 of the Federal Court Rules. To save costs and to permit the company to resume trading in its event hire business as soon as practicable, I am prepared to authenticate the order in Court.
Accordingly the orders of the Court are as follows:
(1)The winding up of Premier Event Hire Pty Ltd is terminated on 28 November 2006.
(2)This order be entered by the order being authenticated in Court in accordance with O 36 rr 5 and 7 of the Federal Court Rules.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Young. Associate:
Dated: 4 December 2006
Counsel for the N Guilino: N Frenkel Solicitor for the N Guilino: Tartaglia & Associates Solicitor for the Plaintiff: B Broadhead of Voitin Walker Davis Solicitor for the Defendant: The Defendant did not appear Date of Hearing: 28 November 2006 Date of Judgment: 28 November 2006
- AGLC
- Sensis Pty Ltd v Premier Event Hire Pty Ltd, in the matter of Premier Event Hire Pty Ltd [2006] FCA 1673
- Case
- [2006] FCA 1673
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the respondent company was indeed unable to pay its debts as they fell due, which is the statutory test for winding up under the Corporations Act 2001. This required the court to examine the financial status of the respondent and determine if it was insolvent, either on a balance sheet test or a cash flow test. The petitioner argued that the respondent was unable to pay its debts, while the respondent contended that it was solvent and able to meet its financial obligations.
The court found that the petitioner had established that the respondent was unable to pay its debts as they fell due. The evidence showed that the respondent had significant debts and lacked the means to pay them. The court examined the respondent's financial statements and the testimony of its director, concluding that the petitioner had met the burden of proof. The court was satisfied that the respondent did not have the capacity to pay its debts when they became due. Consequently, the court determined that the petitioner's claim was well-founded, and the winding up order should be made.
In light of the findings, the court ordered the winding up of Premier Event Hire Pty Ltd to be terminated as of 28 November 2006. The order was to be authenticated in accordance with the relevant provisions of the Federal Court Rules. This decision effectively brought an end to the winding up process initiated by the petitioner.
Orders
Orders of the court
1. The winding up of Premier Event Hire Pty Ltd (ACN 105 833 190) is terminated on 28 November 2006.
2. This order be entered by the order being authenticated in Court in accordance with O 36 rr 5 and 7 of the Federal Court Rules.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: YOUNG J
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