Haridemos, in the matter of ACT Builders Pty Ltd v ACT Builders Pty Ltd [2017] FCA 25

FEDERAL COURT OF AUSTRALIA

Haridemos, in the matter of ACT Builders Pty Ltd v ACT Builders Pty Ltd [2017] FCA 25 File number: NSD 1601 of 2016

Judge: FARRELL J

Date of judgment: 6 February 2017

Catchwords: CORPORATIONS – application for winding up in insolvency – whether presumption of insolvency established under s 459C(2)(b) of the Corporations Act 2001 (Cth) – whether writ of levy of property returned "wholly or partly unsatisfied" – whether writ of levy of property returned "unexecuted" – where execution of writ attempted at principal place of business of debtor in Queanbeyan as disclosed in contemporaneous ASIC search – where premises appear vacant – where ASIC search made after attempted execution of writ discloses that principal place of business changed to an address in Queensland before attempted execution – where notice of non-levy contains no endorsement that the writ was unsatisfied – where Sheriff did not comply with r 39.18 of the Uniform Civil Procedure Rules 2005 (NSW) – whether attempted execution was futile – presumption not established CORPORATIONS – application for winding up in insolvency – insolvency not established CORPORATIONS – application for winding up on just and equitable grounds – where application made by a creditor – where creditor needs to prove insolvency of a company to make claims on an insurance policy – ground not made out

Legislation: Bankruptcy Act 1966 (Cth) s 40(1)(d)(ii) Corporations Act 2001 (Cth) ss 459A, 459C, 459D, 461(1)(k), 465C, 466(2) Civil Procedure Act 2005 (NSW) s 108 Federal Court (Corporations) Rules 2000 (Cth) r 2.9 Uniform Civil Procedure Rules 2005 (NSW) rr 39.18, 39.21, 39.51