[2015] NSWSC 971

In the matter of Xiang Rong (Australia) Construction Group Pty Limited

Winding up terminated.

Catchwords

CORPORATIONS – winding up – winding up in insolvency – failure to comply with creditor’s statutory demand – application to terminate winding up order – adequacy of explanation for failing to oppose winding up order – where no actual notice of statutory demand and winding up application received by controlling minds of company – where debts for which statutory demand issued have been paid and solvency established – held, winding up order terminated.

Legislation cited

(CTH) Corporations Act 2001, § 482

Judgment

[1]
HIS HONOUR: On 2 February 2015, a Registrar made an order that the defendant company Xiang Rong (Australia) Construction Group Pty Limited be wound up in insolvency and that a liquidator be appointed. By interlocutory process filed on 9 April 2015, Andrew Xiang, a shareholder and creditor of the company, applies pursuant to (CTH) Corporations Act 2001, s 482, for an order terminating the winding up.
[2]
It appears from the evidence that, due to a change of the company's accountant, its controlling minds did not receive actual notice of the creditor's statutory demand on which the winding up petition was based, nor of the originating process seeking a winding up order, and for that reason, no response was made to the creditor's statutory demand, nor was the winding up proceeding opposed.
[3]
The applicant has put the liquidator in funds to pay the company's creditors. Many of the company's remaining liabilities are to the applicant, or his related entities. In a solvency report of 11 May 2015, the liquidator has expressed the view that, on the assumption that the applicant pays the balance of $152,000 – which I understand is an error for $162,000 – required to discharge remaining arm's length creditors and pay the liquidator's remuneration, and the related creditors agree to postpone or write off their debts, the company would be solvent.
[4]
As it seems to me, a sufficient explanation has been proffered as to why the winding up order came to be made unopposed, and upon payment to the liquidator of the sum in question, the circumstances that warranted the winding up – namely insolvency – will have been brought to an end.
[5]
The plaintiff has been paid its debt and does not oppose the application, and the liquidator also consents to the application.
[6]
The Court therefore orders that:
1. (1)
  Pursuant to Corporations Act, s 482, the winding up of the company Xiang Rong (Australia) Construction Group Pty Limited ACN 109 983 445, be terminated, with effect from this day.
2. (2)
  The applicant, Andrew Xiang, pay the plaintiff's costs of this application.
3. (3)
  The applicant pay the liquidator's costs fixed in the sum of $2,400.