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Arnold World Trading Pty Ltd v ACN 133 427 335 Pty Limited [2010] NSWSC 1369

by Martha.Ware 11. April 2011 08:32

Facts

The defendant became subject to a creditors voluntary winding up in January 2010. A liquidator was appointed.

 

The plaintiff, being the sole member of the defendant, filed an originating process on 2 November 2010 seeking an order that the winding up of the defendant be terminated.

 

The Court has the power to order the termination of a voluntary winding up by virtue of a combination of ss 482 and 511(1) of the Corporations Act 2001 (Cth): [3]-[4].

 

The critical question was: ‘If the liquidator has taken steps on the basis that “the affairs of the company are fully wound up” (s 509(1)), is there a subsisting “winding up of a company” (s 482 as applied by s 511(1))?’: [11].

 

Even where the process of winding up a company’s ‘affairs’ (s 509(1)) is complete, the company may still be ‘being wound up’: [21]. In that situation, an application may be made under s 482 of the Corporations Act 2001 (Cth), as applied by s 511(1): [22].

 

Section 509 assumes that, where the liquidator considers that the affairs of the company ‘have been fully wound up’, the company will be duly deregistered, subject to some possibility of postponement: [29].

 

A s 509 meeting cannot prevent the winding up of a company: [31].

 

The power under s 482 of the Corporations Act 2001 (Cth) is discretionary. In exercising that discretion, the considerations that would be addressed on a reinstatement application may be of assistance: [42].

 

The considerations put forward by the plaintiff did not relate to the plaintiff (at [44]) or the defendant (at [40]).

 

Outcome

The originating process was dismissed.

 

 

Relevant paragraphs of Ford

[27.128], [27.129], [27.550], [27.690]

Tags:

Ford's Principles of Corporations Law



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