10. May 2011 15:12
An application was made by the company to set aside a winding up order made by the Registrar.
Having failed to comply with a statutory demand, an application for the company to be wound up was made. That application was adjourned on several occasions to enable the company to seek finance to meet the alleged debt.
Prior to the adjourned winding up application being heard, the company was placed into administration. The company did not appear at the adjourned application and the registrar made orders for the company to be wound up.
The company adduced evidence from its sole director stating that nobody appeared on behalf of the company at the winding up hearing as the director had thought the administrator would appear and the administrator thought the director would appear: .
An application was made under s 482(1) and 482(3) of the Corporations Act 2001. The court found that it is not appropriate to make an order under s 482. That section would terminate the winding up but not set aside the Registrar’s orders: .
It is appropriate for an order to be made under Order 35 rule 7(2)(a) of the Federal Court Rules: .
The evidence of the director in support of the application was that a Deed of Company Arrangement was to be presented to creditors, and that such arrangement would provide a better return for creditors than a formal winding up.
The court found that it is in the interest of creditors that they have an opportunity to consider the propose DOCA and that it was appropriate to set aside the winding up order provided that the liquidators costs be paid by the company’s director: .
Relevant paragraphs of Ford
[27.100], [27.128], [27.129]