Chief Commissioner of State Revenue v Howell Developments Pty Ltd

HIS HONOUR : In this matter a winding-up order was made by Registrar Wearne but was immediately stayed and has not been entered. The defendant has now satisfied the debt of the plaintiff, who no longer wishes to proceed with the winding-up. That, however, is subject to one matter. The plaintiff will not be at liberty to use the cheque that has been delivered to it unless the winding-up order is set aside.

The questions are whether I have power to set aside the winding-up order and am justified in doing so. As the order has not been entered (and the liquidator has not entered into the winding-up), it seems to me that I have power to set aside the winding-up order under Part 40 r 9(1) of the Supreme Court Rules 1970.

In general terms, even where a plaintiff loses interest, winding-up proceedings will not be dismissed, much less a winding-up order set aside, unless the defendant is proved to be solvent. In this case, the evidence in that regard is somewhat thin. However, it does seem to show that the company’s assets considerably exceed its liabilities and that, now the plaintiff’s debt is satisfied, there are no debts which are being pressed for. Furthermore, although the proceedings have been before the Court on a considerable number of occasions, no creditor other than the plaintiff has appeared to take any interest in them.

In all the circumstances, I am prepared to exercise the Court’s discretion under Part 40 r 9(1) to set aside the winding-up order made by Registrar Wearne on 1 February 2005. I make the following orders: (1) Order that the orders of the court made by Registrar Wearne on 1 February 2005 be set aside. (2) Proceedings dismissed. (3) No order as to costs.