St George Bank Ltd v Durahrwa Training and Development Aboriginal Corporation

[2005] FCA 682

FEDERAL COURT OF AUSTRALIA

St George Bank Ltd v Durahrwa Training and Development Aboriginal Corporation [2005] FCA 682

ST GEORGE BANK LTD v DURAHRWA TRAINING AND DEVELOPMENT ABORIGINAL CORPORATION

ACD 9 OF 2005

EMMETT J
10 MAY 2005
CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD9 OF 2005

BETWEEN:	ST GEORGE BANK LTD PLAINTIFF
AND:	DURAHRWA TRAINING AND DEVELOPMENT ABORIGINAL CORPORATION DEFENDANT
JUDGE:	EMMETT J
DATE OF ORDER:	10 MAY 2005
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1.Durahrwa Training and Development Aboriginal Corporation (‘the company’) be wound up.

2.David Leigh of Suite 6A, Ground Floor, 10-12 Short Street, Port Macquarie, in the State of New South Wales, be appointed Liquidator of the company.

3.The costs of and incidental to the application be paid out of the assets of the company.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD9 OF 2005

BETWEEN:	ST GEORGE BANK LTD PLAINTIFF
AND:	DURAHRWA TRAINING AND DEVELOPMENT ABORIGINAL CORPORATION DEFENDANT

JUDGE:	EMMETT J
DATE:	10 MAY 2005
PLACE:	CANBERRA

REASONS FOR JUDGMENT

1. I have before me an application by way of petition for the winding up of Durahrwa Training and Development Aboriginal Corporation (‘the Corporation’).  The Corporation is an incorporated Aboriginal association within the meaning of the Aboriginal Councils and Associations Act 1976 (‘the Associations Act’). Section 63(1)(b) of that Act provides that an incorporated Aboriginal association may be wound up under an order of the Court on the petition of any creditor.

2. Under s 63(2)(d), the inability of an incorporated Aboriginal association to pay its debts is a ground upon which a winding up order may be made. Section 63(3) provides that, for the purposes of the consideration by the Court of a petition under s 63(1) on the ground set out in s 63(2)(d), an incorporated Aboriginal association is to be deemed to be unable to pay its debts if:

   ·     a creditor, to whom the association is indebted in a sum exceeding $500, has by its service of a demand upon the public officer, required the association to pay that sum; and

   ·     the creditor has, within three days of that service, served a copy of that demand upon the Registrar of Aboriginal Corporations; and

   ·     the Association has, for a period of 20 days after that service, neglected to pay that sum, or secure or compound for it to the reasonable satisfaction of the creditor.

3. Section 67 of the Associations Act provides that the provisions of the Corporations Act 2001 (Cth) (‘the Corporations Act’), relating to the winding up of companies, so far as they are capable of application, apply in relating to the winding up of incorporated Aboriginal associations on the basis that:

   • a reference to a company in the Corporations Act is to be read as a reference to incorporated Aboriginal association and
   • a reference to the Commission in the Corporations Act is to be read as a reference to the Registrar of Aboriginal Corporations.

4. By application filed on 16 March 2005, St George Bank Limited claims the following orders:

   1.        That the Corporation be wound up.

   2.        That David Lee be appointed liquidator of the Corporation and

   3.That the costs incidental to the application be paid out of the assets of the Corporation. 

   The ground upon which those orders are sought is failure to comply with a statutory demand served on the Corporation on 17 November 2004.

5. I note the affidavits of Bradley Mark Fercan, sworn 17 November 2004; Keith Thomas Ramsay, sworn 18 November 2004; John Kirubaithilakan, sworn 19 April 2005; Bradley Mark Fercan, sworn 2 April 2005; Adele Catherine Collett, sworn 4 April 2005; a second affidavit of John Kirubaithilakan, sworn 19 April 2005; the consent of David Lee to be appointed to act as liquidator, dated 18 April 2005; affidavit of Bradley Mark Fercan, sworn 22 April 2005; two affidavits of John Kirubaithilakan, sworn 9 May 2005.  I am satisfied, on the basis of that material, that the ground referred to in s 63(2)(d) of the Act has been made out.

6. The matter was last before the Court on 28 April 2005, when the Acting District Registrar adjourned the matter for hearing by a judge of the Court.  The Corporation was notified by letter of 4 May 2005 of the fixture for today’s hearing.  There was no appearance for the Corporation when the matter was called this morning.  In the circumstances I propose to make orders as sought in the application filed on 16 May 2005.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:            30 May 2005

Solicitor for the Applicant:	Meyer Vandenberg
Date of Hearing:	10 May 2005
Date of Judgment:	10 May 2005