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Smith, in the matter of In House Management Service Pty Ltd v In House Management Service Pty Ltd [2010] FCA 1401

by Emma.Gleeson 1. February 2011 10:02

Facts

For s 459C(2)(a) of the Corporations Act 2001 (Cth) to require the Court to presume that a company is insolvent as a result of its failure to comply with a statutory demand, the applicant ought to have filed an application for the winding up in insolvency of the company within three months of the company’s failure to comply with the statutory demand: [5].

 

The applicant filed such an application three months and one day from the date on which the respondent failed (as defined by s 459F) to comply with a statutory demand: [3].

 

Outcome

The Court should exercise its discretion under s 467(1)(c) of the Corporations Act 2001 (Cth) and grant the application in circumstances where:

  • the application was filed only one day beyond the date by when the Court would have been required to presume the respondent’s insolvency,
  • the respondent has not disputed the applicant’s claims, and
  • it is clear that the respondent is, in fact, insolvent: [7].

 

 

Relevant paragraphs of Ford

[27.060], [27.094] and [27.110]

Tags:

Ford's Principles of Corporations Law



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