FEDERAL COURT OF AUSTRALIA

Morgan (as Liquidator of Lion Hotels Pty Ltd (In Liq)) v Powerdirect Pty Ltd [2011] FCA 651

THE COURT ORDERS THAT:

1.    The time for service of the Interlocutory Process dated 10 April 2011 be abridged to 10 April 2011.

2.    The winding up order made on 4 April 2011 by Registrar Pringle be set aside pursuant to Order 35 rules 7(2)(a) and 7(2)(f) of the Federal Court Rules.

3.    The Originating Process filed 25 February 2011 be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    In this matter, an order was made on 4 April 2011 by a Registrar of this Court for the winding up in insolvency of Powerdirect Pty Ltd (“Powerdirect”). The order was made in the absence of any representative of Powerdirect. For reasons which cannot presently be explained, service of the judgment of the Magistrates’ Court giving rise to the debt on which the application for the winding up order was made, a statutory demand and the application for the winding up order itself did not come to the notice of a responsible and appropriate officer of Powerdirect, which is a wholly owned subsidiary of AGL Energy Proprietary Limited (“AGL”).

2    The application to set aside the winding up order has been made as promptly as practicable. I am satisfied by the evidence on affidavit of Stephen John Mikkelson, a director of Powerdirect, that the company has a substantial excess of assets over liabilities. The AGL group, of which Powerdirect is a member, and from which it has the benefit, as a group member, of a deed of cross-guarantee, controls a very substantial body of assets. AGL itself is a substantial publicly listed company. The evidence also discloses that Powerdirect itself has been trading profitably. These matters enable me to find with complete confidence that Powerdirect has at all relevant times been solvent.

3    I have been referred to several authorities stemming, it seems, from a judgment of Hodgson J in the Supreme Court of New South Wales in George Ward Steel Pty Ltd v Kizkot Pty Ltd (1989) 15 ACLR 464, which has been followed in this Court by Gyles J on two occasions and by Finkelstein J. It has been indicated that the plaintiff in the Magistrates’ Court, which was the petitioning creditor which obtained the winding up order, consents to its being set aside and it further appears that appropriate arrangements have been made for payment for the judgment debt and payment of all of that creditor’s costs. The liquidator also has indicated that he consents to the application being made in the name of Powerdirect and neither consents to, nor opposes the setting aside of the winding up order, and I further understand that appropriate arrangements have been made and undertakings given for the payment of all of the liquidator’s costs.

4    In those circumstances, I shall make the orders in the terms which have been sought.

Associate:

Dated:    12 April 2011