New South Wales Supreme Court CITATION : Workers' Compensation Nominal Insurer v Roland Building Services Pty Ltd [2008] NSWSC 13 HEARING DATE(S) : 17 January 2008 JUDGMENT DATE : 17 January 2008 JURISDICTION : Equity JUDGMENT OF : Campbell JA EX TEMPORE JUDGMENT DATE : 17 January 2008 DECISION : Order winding up defendant and appointing liquidator set aside. CATCHWORDS : CORPORATIONS - winding up - application to set aside order for winding up - court order made on basis of fundamental error LEGISLATION CITED : Uniform Civil Procedure Rules CASES CITED : Double Bay Newspapers Pty Limited [2006] NSWSC 226; (2006) 57 ACSR 131 PARTIES : Workers Compensation Nominal Insurer - Plaintiff Roland Building Services Pty Ltd - Defendant FILE NUMBER(S) : SC 5161/07 COUNSEL : D McCrostie, solicitor - Plaintiff SOLICITORS : TurksLegal - Plaintiff IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY JUDGE LIST CAMPBELL JA THURSDAY 17 JANUARY 2007 5161/07 IN THE MATTER OF ROLAND BUILDING SERVICES PTY LIMITED (IN LIQUIDATION) WORKERS' COMPENSATION NOMINAL INSURER v ROLAND BUILDING SERVICES PTY LTD JUDGMENT – Ex Tempore 1 HIS HONOUR: This is the hearing of an interlocutory process which seeks the setting aside of an order for winding up of the defendant, that the Court made on 27 November 2007. It is now known that that order was made on the basis of a factual mistake of a fundamental nature. The debt upon which the initiating process had been based had, in fact, been paid at the time that the winding up order was made. Because of a lack of communication between officers of the plaintiff and its solicitors, an affidavit was placed before the court, on the day the winding up order was made, that incorrectly asserted that the debt was still unpaid. This error has now been discovered. 2 When a court order has been made on the basis of an error relating to a fundamental matter, it is open to the court to set aside the order: Double Bay Newspapers Pty Limited [2006] NSWSC 226; (2006) 57 ACSR 131. In the present case it is appropriate for the winding up order to be set aside. I shall make orders to that effect together with consequential orders. 3 I am informed that the only proof of debt that has been filed is one by the Australian Taxation Office. In the unusual circumstances of this case, it seems to me that it is appropriate for the Australian Taxation Office to be given notice of the orders that are made today. I direct the solicitor for the plaintiff to notify the Australian Taxation Office of the making of the orders that have been made today, and to provide the Australian Taxation Office with a copy of the affidavit and interlocutory process on the basis of which those orders were made by close of business on Monday 21 January 2008. 4 I make orders 1, 2, 4 and 5 in the interlocutory process, namely 1. This interlocutory application be returned and heard instanter. 2. Pursuant to regulation 36.15 of the Uniform Civil Procedure Rules the order of the Court dated 27 November 2007 winding up the defendant and appointing Scott Darren Pascoe as liquidator be set aside. 4. The originating process is otherwise adjourned to the Registrar's list at 11.00am on 12 February 2008. 5. The parties bear their own costs of this Interlocutory Process. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.