Workers Compensation Nominal Insurer, in the matter of Ingleside Bricklaying Co Pty Ltd v Ingleside Bricklaying Co Pty Ltd
[2016] FCA 1377
•17 November 2016
FEDERAL COURT OF AUSTRALIA
Workers Compensation Nominal Insurer, in the matter of Ingleside Bricklaying Co Pty Ltd v Ingleside Bricklaying Co Pty Ltd [2016] FCA 1377
File number(s): NSD 1354 of 2016 Judge(s): JAGOT J Date of judgment: 17 November 2016 Legislation: Federal Court Rules 2011 (Cth) r 39.05 Cases cited: George Ward Steel Pty Ltd v Kizkot Pty Ltd (1989) 15 ACLR 464
Workers Compensation Nominal Insurer, in the matter of Deli Glenbrook Pty Limited (ACN 118 296 325) (2010) FCA 380
Date of hearing: 17 November 2016 Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: No Catchwords Number of paragraphs: 8 Solicitor for the Plaintiff: Ms F Reynolds of TurksLegal Solicitor for the Defendant: Mr L Ormazabal of BBW Lawyers ORDERS
NSD 1354 of 2016 IN THE MATTER OF INGLESIDE BRICKLAYING CO PTY LTD ACN 608 968 323
BETWEEN: WORKERS COMPENSATION NOMINAL INSURER ABN 83 564 379 108
Plaintiff
AND: INGLESIDE BRICKLAYING CO PTY LTD ACN 608 968 323
Defendant
JUDGE:
JAGOT J
DATE OF ORDER:
17 NOVEMBER 2016
THE COURT ORDERS THAT:
1.Pursuant to Rule 39.05(a) of the Federal Court Rules 2011 (Cth), orders 1 and 2 of the orders made by the District Registrar at Sydney on 21 September 2016 be set aside.
2.The applicant pay its own costs on the interlocutory process.
3.The originating process filed on 16 August 2016 otherwise be dismissed.
4.Order 3 of the orders made by the District Registrar on 21 September 2016 be varied to “The plaintiff’s costs of these proceedings be fixed in the amount of $7,777.02 and be paid by the defendant”.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
JAGOT J:
This is an interlocutory application to set aside orders 1 and 2 of the orders made by a Registrar of the Court on 21 September 2016. On that date, on an ex parte basis, the District Registrar made the following orders:
1. INGLESIDE BRICKLAYING CO PTY LTD ACN 608 968 323 be wound up in insolvency under the Corporations Act 2001.
2. Neil Robert Cussen of Deloitte Financial Advisory Pty Ltd be appointed as liquidator of the Defendant.
3. The Plaintiff’s costs of these proceedings be fixed in the amount of $7,777.02 and reimbursed in accordance with sub-section 466(2) of the Corporations Act 2001.
The company was wound up in insolvency on the basis of a debt for workers’ compensation insurance which was due and payable and apparently had not been paid as at the date of the winding up order.
However, the interlocutory process is made in circumstances where the evidence is to the effect that the debt, in fact, had been paid before the making of the winding up order and the company is otherwise solvent.
As set out in written submissions, the relevant principles which apply to the setting aside of an order in these circumstances were identified by Jacobson J in Workers Compensation Nominal Insurer, in the matter of Deli Glenbrook Pty Limited (ACN 118 296 325) (2010) FCA 380 (as referred to in George Ward Steel Pty Ltd v Kizkot Pty Ltd (1989) 15 ACLR 464), and comprise the following six considerations:
(1)the order was made in the absence of the company;
(2)the application for setting aside the order was promptly brought by the company;
(3)notice is given to the liquidator, to the person who has sought to have the company wound up and to any creditor who appeared at the hearing;
(4)the evidence provides an explanation for the non-appearance;
(5)there is consent or at least no opposition to the setting aside of the order; and
(6)the liquidator shows there is nothing in his or her investigations showing a reason for the company to be stopped from trading.
It is not in dispute in the present case that those six considerations are satisfied, having regard to the additional affidavit filed today from Clifford Taylor, the sole director and secretary of the company. Amongst other things, that affidavit provides evidence explaining that, having paid the outstanding workers’ compensation insurance, Mr Taylor did not realise that he was required to attend the hearing in respect of the winding up application on 21 September 2016, and that the company is otherwise solvent.
The other requirements set out above have also been satisfied in this case. In particular, there is no opposition to the setting aside of the winding up order. The application has been brought promptly and nothing arises which would suggest that the company should be prevented from trading.
In these circumstances, it is appropriate to make the orders sought in the interlocutory process dated 27 September 2016.
The only issue that remains is order 3 of the orders of 21 September 2016 made by the District Registrar for the payment of the plaintiff’s costs. The plaintiff seeks and the company does not oppose a variation of that order so that the order reads that the company pay the plaintiff’s costs fixed in the sum of $7777.02, and I so order.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. Associate:
Dated: 23 November 2016
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