Workers Compensation Nominal Insurer v Lozito-Strada Pty Ltd

The case of Workers Compensation Nominal Insurer v Lozito-Strada Pty Ltd involved a dispute where the Workers Compensation Nominal Insurer sought to wind up Lozito-Strada Pty Ltd due to alleged insolvency. The Federal Court of Australia was tasked with reviewing a decision made by the Registrar on 14 June 2013, which dismissed the winding up application with no order as to costs. The court's role was to determine if the Registrar's decision was correct and whether the plaintiff could amend its application to rectify any procedural errors.

The central legal issue was whether the plaintiff could rely on the statutory presumption of insolvency under section 459F(2)(b) of the Corporations Act 2001, particularly concerning the timing of the compliance period for the statutory demands served on the defendant. The court had to interpret sections 29 of the Acts Interpretation Act 1901 and 160(1) of the Evidence Act 1995 (NSW) to ascertain whether the statutory demand period had expired before the winding up applications were filed. The court also needed to determine if permitting an amendment to the originating process would contravene the mandatory requirements of section 459Q of the Corporations Act.

Justice Jacobson concluded that the Registrar's decision should be set aside and that the plaintiff should be granted leave to file an amended originating process. The court reasoned that while the statutory presumptions under sections 29 and 160(1) typically place the onus on the defendant, the plaintiff needed to comply with section 459Q(a) of the Corporations Act, which requires setting out particulars of the failure to comply with the demand. By ordering the amended originating process to take effect from the date of the judgment, the court ensured that the plaintiff could comply with the statutory requirements without contravening the mandatory provisions of the Act. This approach provided a practical resolution to the procedural issues raised.

The court's final orders were to set aside the Registrar's order, grant leave to the plaintiff to file an amended originating process, and specify that the amended originating process would take effect from the date of the judgment. The court also suggested that similar orders should be made in the other 18 related winding up applications.