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  • Unreported Judgment

Re Skafola Pty Ltd

 

[2014] QSC 207

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

DELIVERED ON:

6 August 2014

DELIVERED AT:

Brisbane 

HEARING DATE:

6 August 2014

JUDGE:

Atkinson J

ORDERS:

1. Skafola Pty Ltd ACN 001 622 297 be wound up in insolvency under the provisions of the Corporations Act;

2. Raj Khatri of Worrells Solvency & Forensic Accountants be appointed Official Liquidator of the company;

3. The requirement to publish a Form 9 notice in accordance with rule 2.11 and 5.6 of Schedule 1A of the Uniform Civil Procedure Rules 1999 (Qld) be dispensed with;

4. The Respondent pay the Applicant’s costs of and incidental to this Application. 

CATCHWORDS:

CORPORATIONS – WINDING UP – WINDING UP IN INSOLVENCY – STATUTORY DEMAND – THE DEMAND – GENERALLY – where the applicant posted a creditor’s statutory demand for the payment of a debt to the respondent’s registered office – where the respondent failed to file an application to set aside the statutory demand within 21 days after the demand was served – where the applicant filed an originating application pursuant to ss 459P and 459Q of the Corporations Act 2001 (Cth) for the respondent company to be wound up – whether the respondent company should be wound up on the grounds of insolvency

Corporations Act 2001 (Cth), s 109X, s 459C, s 459G, s 459P, s 459Q

COUNSEL:

S Wardrobe for the applicant

The respondent appeared on his own behalf

SOLICITORS:

T F Wardrobe as Town Agents for Hickey Lawyers for the applicant

The respondent appeared on his own behalf

 

HER HONOUR:   This is a hearing of an application made pursuant to section 459P and section 459Q of the Corporations Act, for the respondent company, Skafola Pty Ltd (“Skafola”) to be wound up on the grounds of insolvency.  The affidavit material sets out the facts on which the application is based.  It appears from that material that on 24 April 2014, the applicant posted a creditor’s statutory demand for payment of a debt, together with an affidavit accompanying that demand, to the respondent at its registered office, pursuant to the provisions of section 109X of the Corporations Act.  In accordance with the Act, service was deemed to be effected on 30 April 2014, being the time at which the documents would have been delivered in the ordinary course of post; that is, the fourth working day after being posted, unless the contrary can be proved by the respondent. 

 

On 8 May 2014, Mr Ron Davy, who is a former director of the respondent company Skafola, and who is an undischarged bankrupt, advised the applicant’s solicitors that he had received the demand and accompanying affidavit at the registered office of Skafola upon his returning from interstate on or before 8 May 2014. 

 

Mr Davy appeared before me today to argue why the company should not be wound up.  He has asserted in affidavit material filed in an application to set aside the statutory demand that he has the permission of his trustee in bankruptcy to deal with this matter.  Unfortunately, it appears from correspondence attached to the affidavit of Bridget Louise Smith, who is in the employ of the firm of solicitors who acts for the applicant, that he does not have that permission.  In any event, even if he did, it is hard to see how the Court would grant leave to him to appear for the company.  I did however, give him the opportunity to address the Court on any matters he wished to raise and Mr Davy raised a number of matters before me. 

 

The matter of most concern is the fact that an application to set aside the statutory demand to which I have referred was filed on behalf of Skafola by Mr Davy.  Setting aside for one moment any concern about the authority of Mr Davy to do so, the application to set aside the statutory demand was filed, as it appears from the file on which that application and supporting affidavit was filed, on 30 May 2014.  Section 459G of the Corporations Act provides that a company may apply to the Court for an order setting aside a statutory demand served on the company, however subsection 2 provides that an application may only be made within 21 days after the demand is served.  There are other requirements.

 

That provision cannot be varied by the Court, so an application that is filed outside that time is not an application to set aside a statutory demand under the Corporations Act and could not be considered by the Court, notwithstanding that it has been filed and notwithstanding any other procedural difficulties that apply in terms of who has filed it and his authority to do so. 

 

Mr Davy obviously cares deeply about the company and what happens to it, however, because of the provisions of section 459G, the Court would not be able to consider, the application to set aside the statutory demand which he has filed.  Accordingly, the Court must work on the basis that if all of the procedural requirements for filing the application to have the company wound up in insolvency have been met, then that is the inevitable order that will follow. 

 

The respondent company Skafola was taken to have failed to comply with the demand at the end of the period for compliance with the demand, which was 21 May 2014 or, at the latest, as the applicant submits, on 29 May 2014.  It is therefore presumed to be insolvent pursuant to section 459C(2)(a) of the Corporations Act.  Accordingly, the applicant filed an originating application to wind up the company.  All of the procedural requirements that the applicant is required to comply with have been satisfied, as set out in the affidavit material before me and the written submissions filed on behalf of the applicant.  Accordingly, I will make the following orders:

 

  1. Skafola Pty Ltd ACN 001 622 297 be wound up in insolvency under the provisions of the Corporations Act;
  2. Raj Khatri of Worrells Solvency & Forensic Accountants be appointed Official Liquidator of the company;
  3. The requirement to publish a Form 9 notice in accordance with rule 2.11 and 5.6 of Schedule 1A of the Uniform Civil Procedure Rules 1999 (Qld) be dispensed with;
  4. The Respondent pay the Applicant’s costs of and incidental to this Application. 

 

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Editorial Notes

  • Published Case Name:

    Re Skafola Pty Ltd

  • Shortened Case Name:

    Re Skafola Pty Ltd

  • MNC:

    [2014] QSC 207

  • Court:

    QSC

  • Judge(s):

    Atkinson J

  • Date:

    06 Aug 2014

Litigation History

No Litigation History

Appeal Status

No Status