Australian Securities and Investments Commission v Lanepoint Enterprises Pty Ltd (Receivers and Managers Appointed) [2011] HCA 18

HIGH COURT OF AUSTRALIA

GUMMOW, HEYDON, CRENNAN, KIEFEL AND BELL JJ

AUSTRALIAN SECURITIES AND INVESTMENTS

COMMISSION APPELLANT

AND

LANEPOINT ENTERPRISES PTY LTD (RECEIVERS

AND MANAGERS APPOINTED) RESPONDENT

Australian Securities and Investments Commission v Lanepoint Enterprises Pty Ltd (Receivers and Managers Appointed) [2011] HCA 18

1 June 2011

P43/2010

ORDER

1. Appeal allowed with costs.

2. Set aside:

(a) paragraphs 1, 2, 3 and 4 of the order of the Full Court of the Federal Court dated 24 May 2010; and

(b) the further order of the Full Court as to costs dated 9 September 2010, as varied by the order of Siopis J dated 1 October 2010;

and in place thereof order that the appeal by Lanepoint Enterprises Pty Ltd to the Full Court be dismissed with costs.

On appeal from the Federal Court of Australia

Representation

S J Gageler SC, Solicitor-General of the Commonwealth with P D Crutchfield SC and O Bigos for the appellant (instructed by Australian Securities and Investments Commission)

G R Donaldson SC with A J Papamatheos for the respondent (instructed by Mony de Kerloy)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Australian Securities and Investments Commission v Lanepoint Enterprises Pty Ltd (Receivers and Managers Appointed)

Corporations law – Winding up in insolvency – Application for winding up by Australian Securities and Investments Commission – Where respondent presumed insolvent under s 459C(2)(c) of Corporations Act 2001 (Cth) ("Act") – Where principle applying under former companies legislation that company will not be wound up where debt subject of bona fide dispute on substantial ground – Whether principle applicable to Act in light of presumption of insolvency – Whether respondent solvent – Where primary judge did not accept respondent's explanation for alterations to accounts and no further evidence relevant to solvency could be identified by respondent – Whether primary judge's exercise of discretion miscarried in refusing to dismiss or stay proceedings – Whether necessary to join other parties.