In the matter of Day & Night Online Transport Pty Ltd (in liq) [2018] NSWSC 796

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Day & Night Online Transport Pty Ltd (in liq) [2018] NSWSC 796 Hearing dates: 28 May 2018 Date of orders: 28 May 2018 Decision date: 28 May 2018 Before: Gleeson JA Decision: (1) Pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 36.16(2)(b), the orders made on 1 May 2018 be set aside.

(2) The defendant pay the liquidator's reasonable fees and expenses, including legal fees, from 17 May 2018 up to and including today, as assessed or agreed.

(3) Grant leave, to the extent necessary, under s 198G(3)(b) of the Corporations Act 2001 (Cth) for Mr Saad Malik to exercise his power as sole director of the defendant to bring this application in the name of the defendant.

(4) That these orders be entered forthwith. Catchwords: CORPORATIONS – winding-up – application to set aside winding-up order – Uniform Civil Procedure Rules 2005 (NSW), r 36.16 (2) (b) – where orders made in the absence of a party – where company unaware of winding-up application – where liquidator and plaintiff neither consented to nor opposed the relief sought – where company has paid amount claimed in the statutory demand and liquidator's fees and expenses – where no outstanding debts owed by the company

CORPORATIONS – winding-up – whether sole director can bring proceedings in company name to set aside winding-up order – Corporations Act 2001 (Cth), s 198G – whether court should grant leave to director to exercise powers to bring application in name of the company Legislation Cited: Corporations Act 2001 (Cth), ss 198G, 459C, 482, Sch 2 – Insolvency Practice Schedule (Corporations), s 5-15 Uniform Civil Procedure Rules 2005 (NSW), r 36.16 Cases Cited: George Ward Steel Pty Ltd v Kizkot Pty Ltd (1989) 15 ACLR 464 Deputy Commissioner of Taxation v Annesley Plant Hire Pty Ltd [2010] FCA 755 Deputy Commissioner of Taxation, in the matter of SMAR Nominees Pty Ltd (in liq) v SMAR Nominees Pty Ltd (in liq) [2017] FCA 1384 Category: Procedural and other rulings Parties: TollAust Pty Ltd (Plaintiff / Respondent) Day & Night Online Transport Pty Ltd (Defendant / Applicant) Representation: Counsel: Mr A Edmonds (Plaintiff / Respondent) Mr MA Friedgut (Defendant / Applicant) Mr P Hutchinson (Liquidator)