Workers Compensation Nominal Insurer, in the matter of Deli Glenbrook Pty Limited (ACN 118 296 325)

The case of Workers Compensation Nominal Insurer, in the matter of Deli Glenbrook Pty Limited (ACN 118 296 325) [2010] FCA 380 involved a winding up application made by the Workers Compensation Nominal Insurer against Deli Glenbrook Pty Limited. The dispute arose when the Nominal Insurer sought to wind up the company in its absence, based on an outstanding debt. However, Deli Glenbrook Pty Limited had notified the insurer of its intention to pay the debt on the day before the winding up order was made. The case was heard by Jacobson J in the Federal Court of Australia.

The primary legal issue before the court was whether the winding up order made in the absence of Deli Glenbrook Pty Limited should be set aside. The court needed to determine the relevant considerations in exercising the discretion to set aside such an order, taking into account the factors such as the promptness of the application, the solvency of the company, and the absence of any objections from the liquidator or creditors.

The court considered the principles outlined in Labraga v Pomfret [2005] NSWSC 654 and George Ward Steel Pty Ltd v Kizkot Pty Ltd (1989) 15 ACLR 464, which established that the discretion to set aside a winding up order is exercised based on several relevant considerations, including promptness, solvency, and the absence of objections. The court also noted that the application was brought by the plaintiff, rather than the company itself, which was an unusual feature but should be taken into account in exercising the discretion. Given the prompt application, the indication of solvency, and the absence of objections from the liquidator and creditors, the court was satisfied that it was appropriate to exercise the power under Order 35, rule 7(2)(a) of the Federal Court Rules to set aside the winding up order.

The court set aside the winding up order made by the Registrar on 5 March 2010. This decision was based on the evidence presented, which showed that the winding up order would not have been sought if the plaintiff had been aware of the payment made by the defendant on the day before the order was made. The court's decision was in line with the relevant legal principles and considerations for setting aside a winding up order made in the absence of the defendant company.