Simpson v CT Partners Australia Pty Ltd

In the matter of Simpson v CT Partners Australia Pty Ltd, the applicant sought an order for the winding up of the defendant company, CT Partners Australia Pty Ltd, on the basis of the presumption of insolvency under section 459C of the Corporations Act 2001 (Cth). The key legal issues before the court were whether the presumption of insolvency could be triggered by events occurring after the winding up application was made and whether the failure to comply with a statutory demand that occurred post-application could be considered in determining insolvency. The court found that the failure to comply with a statutory demand that occurred after the application was made could indeed be relied upon to presume insolvency, aligning with the view that such recent events should be given weight in insolvency determinations.

The court reasoned that the language of section 459C(2) of the Corporations Act 2001 (Cth) allowed for events occurring after the three months ending on the day when the winding up application was made to trigger the presumption of insolvency. This interpretation was supported by judicial precedents such as Equititrust Limited v Willaire Pty Ltd and others, which held that the failure to comply with a statutory demand post-application could still be relevant. The court also noted that section 459Q, which required particulars of the statutory demand and its non-compliance to be included in the application, did not preclude the use of such events if the application was based on other insolvency indicators at the time of filing. The court held that the defendant, CT Partners Australia Pty Ltd, was presumed to be insolvent based on the events that occurred post-application, including the failure to satisfy the statutory demand and the enforcement of security by JP Morgan.

In conclusion, the court allowed the application for winding up and ordered the defendant, CT Partners Australia Pty Ltd, to be wound up. Robert Michael Kirman and Jason Preston of McGrath Nicol were appointed as liquidators, and the plaintiffs' costs were to be reimbursed in accordance with the relevant section of the Corporations Act. The decision underscored the importance of recent events in insolvency proceedings and the applicability of post-application statutory demand failures in presumption of insolvency determinations.