Workers Compensation Nominal Insurer v Lime Gourmet Pizza Bar (Darby Street) Pty Ltd

Workers Compensation Nominal Insurer brought an application for the winding up of Lime Gourmet Pizza Bar (Darby Street) Pty Ltd on the basis of insolvency. Lime Gourmet Pizza Bar (Darby Street) Pty Ltd, the defendant, subsequently applied to set aside a winding up order that was made in its absence. The central issue for the court was the validity of the winding up order, particularly given that the interlocutory process was not served on the defendant company and the order was made in the absence of the defendant.

The court examined whether the winding up order made by the Registrar was void or voidable due to the lack of service of the interlocutory process. It noted that if the power to extend the period within which an application for winding up cannot be exercised after the statutory six-month period, the defendant is entitled to a statutory dismissal. However, the court considered that it was likely the Registrar had dispensed with the requirement of service under the circumstances, as there was no time to permit service and an automatic dismissal of the application would have ensued otherwise. The court also found that the order made by the Registrar on 15 November 2013 was effective in accordance with the Rules.

Ultimately, the court ruled that the winding up order made on 13 December 2013 was valid in accordance with its terms, but the defendant retained the right to seek to set aside the order on other grounds. The court determined that the next steps in the application would be addressed at a subsequent directions hearing.