Workers Compensation Nominal Insurer, in the Matter of Hollis Demolitions Pty Ltd v Hollis Demolitions Pty Ltd
[2015] FCA 57
•6 February 2015
FEDERAL COURT OF AUSTRALIA
Workers Compensation Nominal Insurer, In the Matter of Hollis Demolitions Pty Ltd v Hollis Demolitions Pty Ltd [2015] FCA 57
Citation: Workers Compensation Nominal Insurer, In the Matter of Hollis Demolitions Pty Ltd v Hollis Demolitions Pty Ltd [2015] FCA 57 Parties: IN THE MATTER OF HOLLIS DEMOLITIONS PTY LTD (ACN 100 939 044); WORKERS COMPENSATION NOMINAL INSURER (ABN 83 564 379 108) v HOLLIS DEMOLITIONS PTY LTD (ACN 100 939 044) File number: NSD 1177 of 2014 Judge: FOSTER J Date of judgment: 6 February 2015 Legislation: Federal Court Rules 2011, r 39.05(a) Date of hearing: 6 February 2015 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 10 Solicitor for the Plaintiff: Ms S Tawil of TurksLegal Solicitor for the Defendant: There was no appearance either by or on behalf of the defendant
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1177 of 2014
IN THE MATTER OF HOLLIS DEMOLITIONS PTY LTD (ACN 100 939 044)
BETWEEN: WORKERS COMPENSATION NOMINAL INSURER (ABN 83 564 379 108)
PlaintiffAND: HOLLIS DEMOLITIONS PTY LTD (ACN 100 939 044)
Defendant
JUDGE:
FOSTER J
DATE OF ORDER:
6 FEBRUARY 2015
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The orders made by District Registrar Wall on 4 February 2015 be set aside.
2.The proceeding be referred back to District Registrar Wall.
3.The proceeding be listed for further hearing at 9.30 am on 25 February 2015 before District Registrar Wall.
4.The solicitors for the plaintiff inform the directors of the defendant corporation and its liquidators of the orders made by the Court this day (6 February 2015) and, when the Reasons for Judgment given by Foster J this day are published, furnish the directors of the defendant corporation and its liquidators with a copy of those Reasons.
5.There be no orders as to costs in respect of the Interlocutory Application filed by the plaintiff on 6 February 2015.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1177 of 2014
IN THE MATTER OF HOLLIS DEMOLITIONS PTY LTD (ACN 100 939 044)
BETWEEN: WORKERS COMPENSATION NOMINAL INSURER (ABN 83 564 379 108)
PlaintiffAND: HOLLIS DEMOLITIONS PTY LTD (ACN 100 939 044)
Defendant
JUDGE:
FOSTER J
DATE:
6 FEBRUARY 2015
PLACE:
SYDNEY
REASONS FOR JUDGMENT
On 4 February 2015 the plaintiff applied to a Registrar of this Court for an order that the defendant be wound up. The Registrar made that order on that day.
There was no appearance either by or on behalf of the defendant corporation when the winding up order was made.
The liquidators appointed to the defendant are Messrs Granger and Krejci of BRI Ferrier (NSW).
The reason why the defendant did not appear last Wednesday was that an employee of the plaintiff had apparently agreed with a director of the defendant some time earlier (in January 2015) that the plaintiff would hold off seeking a winding up order against the defendant on 4 February 2015 in order to enable it to fulfil its obligations under an instalment arrangement previously made between it and the plaintiff. Unfortunately, when instructions were given to the solicitor for the plaintiff in respect of last Wednesday’s listing, those instructions were provided by a different employee of the plaintiff who was unaware apparently of the arrangement which the other employee of the plaintiff had made and who instructed the solicitor for the plaintiff to seek a winding up order.
When the solicitors for the plaintiff realised that their client had not, in fact, wished to wind up the defendant last Wednesday, they contacted the liquidators’ office. The liquidators have agreed to do nothing pending the determination of the application presently before me.
The application before me is for an order pursuant to r 39.05(a) of the Federal Court Rules 2011 which permits the Court to set aside a judgment or order after it has been entered if the judgment or order was made in the absence of a party. It is the plaintiff which, somewhat unusually, seeks to set aside the winding up order and the order appointing the liquidators pursuant to that rule.
An order winding up a corporation affects the status of the corporation. It would ordinarily be necessary for a person or party seeking to set aside a winding up order to establish the solvency of the corporation and, amongst other things, to undertake to pay the liquidators’ fees and expenses.
In the rather unusual circumstances with which I am confronted, I am prepared to make the order sought without delving into the financial position of the defendant corporation. I do so because the order was clearly made as a result of a miscommunication between the plaintiff and its solicitors and in breach of an arrangement made between the plaintiff and the defendant. I also have in mind that, once I set the order aside, the proceeding will then be relisted before the Registrar with a view to finally determining it in accordance with whatever arrangements the parties may come to and subject to the Registrar taking into account all other relevant matters.
I will make no order as to the costs of the application with which I have just dealt. In my judgment, the plaintiff must wear the costs of that application in any event.
There will be orders accordingly.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate:
Dated: 10 February 2015
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