Workers Compensation Nominal Insurer v Cladtrans Pty Ltd, in the matter of Cladtrans Pty Ltd
[2013] FCA 996
FEDERAL COURT OF AUSTRALIA
Workers Compensation Nominal Insurer v Cladtrans Pty Ltd, in the matter of Cladtrans Pty Ltd [2013] FCA 996
Citation: Workers Compensation Nominal Insurer v Cladtrans Pty Ltd, in the matter of Cladtrans Pty Ltd [2013] FCA 996 Parties: WORKERS COMPENSATION NOMINAL INSURER (ABN 83 564 379 108-004) v CLADTRANS PTY LTD (ACN 151 293 382) File number: NSD 1570 of 2013 Judge: YATES J Date of judgment: 25 September 2013 Catchwords: CORPORATIONS – application to terminate winding up of defendant – evidence of solvency – proposal to pay all known creditors, liquidator’s remuneration, and plaintiff’s and liquidator’s costs of present application Legislation: Corporations Act 2001 (Cth) s 482(1) Date of hearing: 25 September 2013 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 7 Solicitor for the Applicant: Mr P Beazley of Beazley Singleton Lawyers Solicitor for the Plaintiff: Mr J Papalia of de Mestre and Company Solicitors Solicitor for the Liquidator of the Defendant: Mr T Kerr of Lander & Rogers Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1570 of 2013
IN THE MATTER OF CLADTRANS PTY LTD (ACN 151 293 382)
BETWEEN: WORKERS COMPENSATION NOMINAL INSURER
(ABN 83 564 379 108-004)
PlaintiffAND: CLADTRANS PTY LTD (ACN 151 293 382)
Defendant
JUDGE:
YATES J
DATE OF ORDER:
25 SEPTEMBER 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The proceeds of St George Bank account BSB 112-879 Account Number 438 030 837 in the name of the defendant be paid to the defendant’s liquidator, David Anthony Hurst of Hosking Hurst Pty Limited, for payment by him of the following debts of the defendant:
(a) $3,753.48 to Boral Quarries;
(b) $3,771.08 to High Quality Group;
(c) $886.20 to Metropolitan Demolitions;
(d) $4,800.00 to MJR Investments;
(e) $21,944.44 to Rocla Quarries;
(f) $32,365.68.00 to QBE Workers Compensation;
(g) Hosking Hurst for the liquidator’s proper remuneration and disbursements.
2.The liquidator’s costs of the application to terminate the winding up be paid by the defendant within 28 days.
3.The plaintiff’s costs of the application to terminate the winding up be fixed in the sum of $1,100 (inclusive of GST) and paid by the defendant within 28 days.
4.Without prejudice to order 1, the liquidation of the defendant be terminated at 5.00 pm on 25 September 2013.
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 1570 of 2013
IN THE MATTER OF CLADTRANS PTY LTD (ACN 151 293 382)
BETWEEN: WORKERS COMPENSATION NOMINAL INSURER
(ABN 83 564 379 108-004)
PlaintiffAND: CLADTRANS PTY LTD (ACN 151 293 382)
Defendant
JUDGE:
YATES J
DATE:
23 OCTOBER 2013
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an application made pursuant to s 482(1) of the Corporations Act 2001 (Cth) to terminate the winding up of the defendant, against whom a winding up order was made on 13 September 2013. The applicant is Charlie David Drake, the sole director and shareholder of the defendant.
The defendant carries on business as a quarry materials haulage and supply company. It currently has five employees.
The defendant has an office at Unit 2, 160 Hartley Road, Smeaton Grange. It employed an office administrator whose job was to open mail, receive documents, and notify Mr Drake of any bills that required payment. The defendant had a system where all bills and wages due to be paid would be forwarded to the defendant’s accountant each Friday. The accountant would set up the payments to be made on an internet banking portal with St George Bank. It was Mr Drake’s practice to log on to the site and authorise the relevant payments. For some reason, the payment of the defendant’s workers’ compensation premium was not entered into the system and not brought to Mr Drake’s attention until after the application to wind up the defendant had been advertised. Mr Drake said that he engaged a firm of credit advisers “to speak with the creditor and resolve the issue”. For some reason, they did not do so, and the winding up order was made. The defendant has now engaged a full‑time bookkeeper to implement a MYOB accounting system. Mr Drake also proposes to change the registered office of the defendant to the office of its accountant.
I am satisfied on the evidence before me that the defendant is in fact solvent. It has a bank balance of $121,113.47. This is sufficient to pay out all the defendant’s known creditors. There is evidence showing that, but for the sum of $133.85, the defendant has met all its taxation liabilities. It has a liability to pay an outstanding superannuation contribution of $17,887.15. Of that amount, $14,173.20 is attributable to superannuation in respect of Mr Drake and his wife.
Further, Mr Drake gave evidence that the defendant is expecting to receive $140,000 at the beginning of October 2013 and a further $400,000 within the next three months.
The orders sought today will put in place an arrangement where the proceeds of the defendant’s St George Bank account will be paid to its liquidator for payment of the defendant’s known trade creditors, as well as the liquidator’s proper remuneration and disbursements. The orders sought will also provide for the plaintiff’s and the liquidator’s costs of the present application. In this connection, both the plaintiff and the liquidator have appeared and have raised no objection to the winding up being terminated.
In all the circumstances, I am satisfied that it is appropriate to make the orders as sought, with the effect that the winding up will be terminated from 5.00 pm on 25 September 2013.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates. Associate:
Dated: 23 October 2013
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