Federal Court of Australia

Deputy Commissioner of Taxation v PAD & Sons Pty Ltd [2025] FCA 1131

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 198G(3)(b) of the Corporations Act 2001 (Cth), grant approval to Pamir Dehsabzi to cause the defendant to bring this application for review.

2.    Order that PAD & Sons Pty Ltd (ACN 099 591 456) be substituted as the applicant on the application for review filed 3 June 2025.

3.    Pursuant to r 1.34 of the Federal Court Rules 2011 (Cth), dispense with the operation of r 4.01(2) and grant leave to Pamir Dehsabzi to represent the defendant for the purposes of this application only.

4.    The application for review filed 3 June 2025 be dismissed.

5.    Subject to order 6, the defendant pay the plaintiff’s costs of the application for review filed 3 June 2025 as agreed or assessed.

6.    Each party pay their own costs of the interlocutory process filed by the plaintiff on 7 July 2025.

7.    The plaintiff’s costs as provided in order 5 are costs to be reimbursed out of the property of the defendant in accordance with s 466(2) of the Corporations Act, and for the purposes of s 556 of the Corporations Act, are to be treated as a cost in respect of the application for the winding up of the company.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Delivered ex tempore, revised from transcript

OWENS J:

1    On 23 May 2025 a Registrar of this Court ordered that PAD & Sons Pty Ltd be wound up in insolvency and that Mr Mathew Blum be appointed as liquidator.

2    The order for the winding up was made on the application of the Deputy Commissioner of Taxation under s 459P of the Corporations Act 2001 (Cth). The Deputy Commissioner relied on the failure of the company to comply with a statutory demand dated 16 January 2025. By that demand, the Deputy Commissioner had sought payment of $155,234.83, which sum was said to be the “Running Balance Account deficit debt as at 16 January 2025 in respect of amounts due under the BAS provisions as defined in subsection 995-1(1) of the Income Tax Assessment Act 1997 … and the general interest charge payable under s 8AAZF of the Taxation Administration Act 1953 (“the TAA 1953”) and Part IIA of the TAA 1953, calculated up to and including 15/01/2025, being a debt due and payable by the company pursuant to section 8AAZH of the TAA 1953”.

3    By application dated 30 May 2025, and filed on 3 June 2025, Mr Dehsabzi, a director of the company, seeks the following orders:

1.    The Registrar’s winding-up orders dated 23 May 2025 be set aside or varied;

2.     The Respondent be granted leave to file and serve:

•    An objection to interest and penalties currently outstanding to the Australian Taxation Office; and

•    Its Supreme Court of NSW Statement of Claim against Domino’s Pizza Enterprises Ltd;

3.    The costs of this application be borne by the Applicant.

4    At least insofar as the first order is concerned, it would appear that what Mr Dehsabzi has in mind is an application pursuant to s 35A(5) of the Federal Court of Australia Act 1976 (Cth). That section allows a party to proceedings in which a Registrar has exercised any of the powers of the Court under s 35A(1) to apply to the Court to review that exercise of power. A decision by a Registrar to wind up a company under s 459A of the Corporations Act is such a power (see s 35A(1)(h) and r 16.1 and Sch 2 Pt 1 of the Federal Court (Corporations) Rules 2000 (Cth)).

5    Mr Dehsabzi, however, is not a party to the winding up proceedings. And, because there has been no stay of the Registrar’s orders, the effect of s 198G(1) of the Corporations Act is that Mr Dehsabzi is not permitted to perform or exercise any function or power of a director of the company, and thus cannot cause the company to bring the application for review itself.

6    The Deputy Commissioner and the liquidator, however, indicated that they would not oppose me making an order pursuant to s 198G(3)(b) of the Corporations Act granting Mr Dehsabzi approval to cause the company to bring this application for review. I consider that it is appropriate to make such an order. In consequence, I also ordered that the name of the applicant on the application be changed to PAD & Sons Ltd (ACN 099 591 456), and further granted Mr Dehsabzi leave to represent the company on the application (see Federal Court Rules, rr 1.34 and 4.01(2)).

7    It was not controversial that the application for review of the decision of the Registrar takes place as a hearing de novo. It follows that the Deputy Commissioner bears the onus of establishing that a winding up order against the company ought to be made. The parties are not confined to the evidence that was before the Registrar at the time the winding up order was made. The Court determines the matter afresh without being fettered by the decision of the Registrar. See generally Callegher v Australian Securities and Investments Commission (2007) 218 FCR 81; [2007] FCA 482 at [46].

8    The liquidator of the company appeared to indicate that he did not intend to take any active role on the application.

The Principles Governing The Making of Winding Up Orders

9    The statutory framework concerning the making of a winding up order by the Court in respect of a company in insolvency was helpfully summarised by McKerracher J in Deputy Commissioner of Taxation v JGQ Developments Pty Ltd [2018] FCA 2046 at [3]. That comprehensive summary permits me to deal only with the matters of critical importance to the present application.

10    Section 459A of the Corporations Act provides that, on an application under s 459P, the Court “may order that an insolvent company be wound up in insolvency”.

11    Section 459C(2)(a) provides that, on such an application, the Court “must presume that the company is insolvent if, during or after the 3 months ending on the day when the application was made the company failed (as defined by section 459F) to comply with a statutory demand”.

12    Section 459F(1) provides that a company is taken to have failed to comply with a statutory demand if, at the end of the period for compliance with it, the demand is still in effect and the company has not complied with it. Section 459F(2)(b) provides that, in circumstances where the company does not apply for an order setting aside the demand, the period for compliance is “the statutory period after the demand is served”. The term “statutory period” is defined in s 9 to mean, relevantly, 21 days.

13    The circumstances in which a statutory demand may be served, and its required content, are prescribed in s 459E.

14    The Court has a discretion as to whether to make a winding up order, even when a company’s insolvency is proved or presumed. It is a “broad discretion” and whether or not it should be exercised in any particular case “necessarily turns on an assessment [of] all the relevant circumstances”: CBA Corporate Services (NSW) Pty Ltd v Walker (2013) 212 FCR 444; [2013] FCAFC 74 at [42] (Foster, Barker and Griffiths JJ). Identification of the relevant circumstances proceeds, in the ordinary way, by reference to the subject matter, scope and purpose of the statutory provision: see CBA Corporate Services at [41]. It has been said that where a company is insolvent, a court will only decline to order a winding up for compelling reasons: see, e.g., Australian Securities and Investments Commission v Merlin Diamonds Ltd (No 3) [2020] FCA 411 at [38] (O’Bryan J); TS Recoveries Pty Ltd v Sea-Slip Marinas (Aust) Pty Ltd [2007] NSWSC 1410 at [118] (Barrett J). Such statements no doubt reflect the fact that the “public interest … normally requires that an insolvent company be wound up to prevent it from incurring further debts”: Bungey t/as John Bungey Real Estate v Magnate Projects Pty Ltd [2006] NSWSC 734 at [44]. But it will always be necessary to have regard to the particular circumstances of the individual case: see, e.g., IOC Australia Pty Ltd v Mobil Oil Australia Ltd (1975) 11 ALR 417 at 426-427; Re Wildtrek Ltd (1987) 12 ACLR 398 at 406; Laucke Flour Mills (Stockwell) Pty Ltd v Fresjac Pty Ltd (1992) 58 SASR 110 at 116-117.

the Statutory Demand and Winding Up Application

15    The statutory demand upon which the Deputy Commissioner relies was dated 16 January 2025.

16    The demand was in the form prescribed by reg 1.0.03(1) and Sch 2 of the Corporations Regulations 2001 (Cth), and otherwise complied with s 459E(2). It stated that the amount owing to the Deputy Commissioner was $155,234.83, and described the debt. It required the company to pay the claimed amount within 21 days after service.

17    The company did not contend that there was any deficiency in the form or contents of the statutory demand.

18    On 16 January 2025, that demand was sent, along with an affidavit in compliance with s 459E(3), by ordinary prepaid post to the registered office of the company. Those documents have not been returned to the Deputy Commissioner through the postal system. In its defence, the company admits that the statutory demand and accompanying affidavit were served. It says, however, that it never received the documents that were sent. That is because it had left its registered office unattended since 13 November 2023. The fact that a demand had been served only came to the company’s attention later, when Mr Dehsabzi was contacted by a solicitor.

19    Section 109X of the Corporations Act provides that a document may be served on a company by posting it to the company’s registered office. Section 29 of the Acts Interpretation Act 1901 (Cth) provides that service shall be deemed, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. Further, s 160 of the Evidence Act 1995 (Cth) provides that, unless evidence sufficient to raise doubt about the presumption is adduced, a letter sent by prepaid post addressed to a person at a specified address in Australia is presumed to have been received at that address on the seventh working day after having been posted. In those circumstances, I find that the statutory demand was received at the company’s registered office on 28 January 2025.

20    It follows that there has been effective service and, for completeness, I note that the applicant does not make any application to set aside the demand on the basis that there was a want of fair notice: cf., e.g., Deputy Commissioner of Taxation v ACN 152 259 839 Pty Ltd [2024] FCA 1489 at [33]-[37].

21    It is not in dispute that the company has neither paid any part of the amount claimed, nor applied to set the demand aside. It follows that the company has failed to comply, within the meaning of s 459F, with the statutory demand.

22    The Deputy Commissioner commenced these proceedings on 11 March 2025. That application complied with s 459Q of the Corporations Act.

23    The evidence disclosed that the requirements of s 465A had also been complied with.

24    It follows that I am satisfied that the required formalities in issuing the statutory demand to the company, and in filing the originating application to wind up the company, and related steps, have been complied with. The company did not contend otherwise.

Solvency

25    In circumstances where there has been a failure to comply with a statutory demand, s 459C(2)(a) provides that the Court must presume that the company is insolvent. Section 459C(3), however, states that a presumption for which that section provides “operates except so far as the contrary is proved for the purposes of the application”.

26    In circumstances where a company that is presumed to be insolvent wishes to prove to the contrary, it has been observed that “[o]rdinarily one would expect that … the company would provide the fullest and best possible material in support of its case”: Commonwealth Bank of Australia v Begonia Pty Ltd (1993) 11 ACSR 609 at 617 (Hayne J). In any event, it is the company that bears the onus of proving solvency: Hoy v RHM Industries Pty Ltd [2023] FCA 115 at [5] (Jackman J).

27    The Deputy Commissioner did not submit that this was a case where audited accounts, or anything like them, were required in order to prove solvency. The Deputy Commissioner’s position was that there was simply no evidence upon which a finding of solvency could be made.

28    The statutory test for solvency is stated in s 95A(1) of the Corporations Act, namely, that a person is solvent if and only if the person is able to pay all of the person’s debts as and when they become due and payable.

29    The bases upon which the company contended it was solvent (if indeed it made such a contention) were not expressed with clarity, but on a consideration of all of the written and oral submissions made by the company, I think its case amounted to contentions that:

(a)    that the company did not in fact have a liability to the Deputy Commissioner, or that any such liability was not enforceable, or, possibly, that the company had an offsetting claim; and

(b)    that the company had a valuable asset, exceeding the total amount of its liabilities, in the form of a claim for damages against Domino’s Pizza Enterprises Ltd.

30    Insofar as the first is concerned, one hurdle confronting the company is that it is not entitled, without leave, to oppose the Deputy Commissioner’s application on a ground that could have been relied upon in an application to set aside the statutory demand: s 459S of the Corporations Act. Sub-section (2) of that section provides that the Court is not to grant leave unless it is satisfied that the ground is material to proving that the company is solvent.

31    The considerations relevant to whether leave should be granted were summarised in In the matter of Vangory Holdings Pty Ltd [2015] NSWSC 546 at [10] (Black J) as follows:

whether there is a serious question to be tried on the ground sought to be raised; the sufficiency of any explanation as to why that ground was not raised in an application to set aside the creditor’s statutory demand, involving an evaluation of the reasonableness of the debtor’s conduct at the time when the application might have been made; and whether the court is satisfied that the relevant ground is material to proving whether the debtor is solvent.

32    I understood the company’s arguments relating to the existence or enforceability of the debt to be as follows:

(a)    The outstanding amounts owed to the Deputy Commissioner were referable solely to administrative penalties and interest. In other words, the principal amount of all taxation liabilities had been paid in full.

(b)    The decision to impose interest and penalties in the circumstances of this case was contrary to a legal requirement of fairness, or represented an unreasonable exercise of discretion. Reliance was placed on Deputy Commissioner of Taxation of the Commonwealth of Australia v Richard Walter Pty Ltd (1995) 183 CLR 168; [1995] HCA 23.

(c)    It was unreasonable for a decision not to have been made to remit interest and penalties otherwise owing, when the obligation arose from circumstances beyond the taxpayer’s control. Reliance in this respect was placed on Commissioner of Taxation v Indooroopilly Children Services (Qld) Pty Ltd (2007) 158 FCR 325; [2007] FCAFC 16.

(d)    The imposition of penalties and interest amounted to economic duress (relying on Pau on v Lau Yiu Long [1980] AC 614 and Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40), unconscionable conduct (relying on Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14), and was contrary to the company’s legitimate expectations (relying on Minister for Immigration and Ethic Affairs v Teoh (1995) 183 CLR 273; [1995] HCA 20).

(e)    The Deputy Commissioner was estopped from recovering the debt on the grounds of promissory estoppel (relying on Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7), or that to do so would involve unconscionable conduct.

33    The factual foundation for all of those claims was broadly similar, namely, contentions that:

(a)    The company had conducted a business operating ten Domino’s Pizza franchise restaurants.

(b)    Restrictions imposed consequent upon the COVID pandemic, coupled with loss-making marketing initiatives required to be adopted by the franchisor, caused a precipitous drop in the business’ revenue.

(c)    The company notified the ATO in early 2021 that it was experiencing financial difficulties, and was advised to prioritise the payment of staff entitlements over taxation liabilities.

(d)    The ATO did not advise the company that a consequence of not paying its taxation liabilities would be that it may become liable to penalties and interest.

(e)    Had the company been aware that a failure to pay its tax liabilities on time might result in the imposition of administrative penalties, or the charging of interest, it would have ceased to trade.

(f)    Ultimately, the company had to relinquish its franchises, said to be worth $9.6 million, to the franchisor in order to meet its taxation liabilities.

34    I should observe that the Deputy Commissioner objected to some of the applicant’s evidence concerning the advice he received from the ATO, on account of its lack of specificity, amongst other reasons. I did not consider that the shortcomings of the evidence to which objection was taken justified its rejection.

35    However, none of the matters relied upon by the company seem to me to provide even an arguable claim that the tax liability does not exist or could not be enforced.

36    To the extent that the company seeks to make a collateral challenge to the validity of decisions made by the ATO to impose (or not to remit) penalties and interest, none of the company’s contentions cast any doubt upon the lawfulness of those decisions. At most, it seems to me that the company has identified a basis upon which the Deputy Commissioner might have exercised his discretion differently. The evidence made clear, however, that the Deputy Commissioner has declined to exercise his discretion to remit any part of the interest or penalties that remain owing. Cases such as Richard Walter and Indooroopilly Children Services do not assist the company. The former was said to stand for the proposition that statutory discretions must be exercised reasonably. For present purposes I am prepared to accept that as a general proposition, although it obviously involves a good deal of over-simplification of a complex corner of the law. Nothing in Richard Walter provides any support for an argument that a discretion has been exercised unreasonably in the present case. As for Indooroopilly Children Services, while that case emphasises the obligation of the Commissioner of Taxation to administer the taxation legislation consistently with decisions of the Courts, it says nothing that might be thought to provide a basis upon which it might be argued that there had been non-compliance with the law in the present case.

37    It is also relevant to record that the company did not exercise its review rights with respect to the imposition of administrative penalties or general interest charges.

38    Nor do I consider that there is even arguable merit to the company’s reliance on private law, including equitable, concepts. There was no evidence of any representation, either express or implied, by the tax authorities that if the company acted in a particular way that penalties or interest otherwise able to be levied would not be imposed. And I do not consider that the ATO had any obligation positively to warn the company that a failure to comply with its taxation obligations may attract interest and penalties. I can see no arguable basis upon which the Deputy Commissioner’s enforcement of the company’s lawful taxation obligations in the circumstances of this case could amount to unconscionable conduct. And I do not see how it could be said that the Deputy Commissioner has taken advantage of any economic duress to which the company was subject.

39    Overall, therefore, I do not consider any of the arguments going to the existence or enforceability of the debt to have sufficient merit to warrant a grant of leave. It follows that I do not need to consider other factors such as the explanation for why these arguments were not raised on an application to set aside the statutory demand. (The fundamental explanation, as I understand it, is that because the company’s registered office was unattended, even though the statutory demand was validly served, it did not come to Mr Dehsabzi’s attention at the time. The power of that circumstance as an explanation would have needed to grapple with the effect of the observations of Jacobson J in Deputy Commissioner of Taxation v Revolve Ltd [2012] FCA 555 at [12]-[20]. But, in any event, I the lack of merit of the arguments is a sufficient basis upon which to refuse leave.) The lack of merit means that I am not satisfied that those arguments are material to proving that the company is solvent, and thus decline to grant leave to the company to rely upon them.

40    The second limb of the argument concerned the claim for damages that the company submits it has against Domino’s. The basis for this claim was said to be that Domino’s had full visibility over the company’s finances, and with that knowledge required the company to conduct its business in such a way as to contribute to its financial collapse. Domino’s was then said to have taken advantage of the company’s parlous state in requiring the surrender of the company’s franchises. Those franchises were said to be worth $9.6 million, which is the amount the company contends the claim is worth.

41    It is not necessary that I make any finding about the merits of that claim. On any view, particularly given that proceedings have not been commenced or, even, so far as the evidence revealed, a claim notified to Domino’s, it is unlikely to yield fruit in the near future. It is thus not an asset that will be available to pay debts that are presently owing, or which would be incurred in the future and become payable before the litigation process had reached its conclusion. Furthermore, there was no evidence that the company had the means to prosecute the claim in order to realise such value as it may have.

42    It follows that I do not consider that the existence of a possible claim against Domino’s provides any basis upon which it could be concluded that the company was solvent.

43    Turning then to the question of solvency more broadly, the principles in accordance with which a company’s solvency is determined have been helpfully collected in a number of cases, one useful example of which is Pearce v Gulmohar Pty Ltd [2017] FCA 660 at [144]-[157] (Rangiah J).

44    There was really no adequate evidence to establish the company’s solvency.

45    The company tendered a “Report on Company Activities and Property” prepared by Mr Dehsabzi for the liquidator, and dated 29 May 2025. That report indicated that the company has no cash, no plant and equipment, no real property, and no inventory. The only valuable asset disclosed was the asserted $9.6 million dollar claim against Domino’s. It also disclosed that the most substantial debt owed by the company was that owed to the Deputy Commissioner, but that there was also a further debt of $20,000 said to be owed to Macquarie Bank in respect of “Domino’s Delivery [Scooters]”.

46    The Deputy Commissioner tendered a “Statutory Report to Creditors”, prepared by the liquidator, and dated 22 August 2025. That report confirms that the company has no assets, and owes a substantial debt to the Deputy Commissioner and a small amount to other creditors. The liquidator has identified two possible claims. The first relates to the transfer of a company vehicle to Mr Dehsabzi’s son, and is for a modest amount. The other is the claim that Mr Dehsabzi has articulated against Domino’s. The liquidator has indicated that he proposes to correspond with Domino’s about that claim.

47    None of the evidence was capable of supporting a finding that the company was able to pay its debts as and when they fall due. It follows that the company has not demonstrated any basis upon which it could be affirmatively concluded that the company was solvent.

Discretion

48    Perhaps the real focus of the company’s case was that, even assuming it to be insolvent, the Court should refuse to wind it up in the exercise of its discretion.

49    The principal argument advanced in this respect, as I understood it, was that the ATO was responsible for the company’s insolvency. In some cases, the involvement of an applicant in precipitating the liability that rendered a company insolvent may be a basis for refusing to order a company’s winding up: see, e.g., Re Wildtrek Ltd (1987) 12 ACLR 398 at 406. But there is nothing in the conduct of the taxation authorities in this case that could provide any basis upon which to refuse to exercise the discretion.

50    Even taken at its highest, the advice that Mr Dehsabzi says the ATO gave him provided no indication, much less assurance, that penalties and interest would not be charged in relation to the company’s outstanding taxation liabilities. In circumstances where the company did not at the time have the funds to meet its obligations to both its employees and the tax authorities, it is difficult to see how, even if such an indication or assurance had been given, the end result could have been much different. Decisions as to whether to continue trading, or not, were always decisions for the directors of the company to take.

51    The company submitted that, analogously to the position of a bank lending a customer money, the ATO should have satisfied itself that the company would be in a position to pay interest and penalties. But I do not think that the analogy holds. The company’s primary taxation obligations existed independently of any decision of the tax authorities. It is a matter for the directors of companies to make decisions about whether they can, consistently with their obligations, cause a company to continue to trade in circumstances where it may be unable to pay its debts. They should do so after taking any professional advice that they need to make that decision. Finally, I repeat, that even taking the company’s evidence at its highest, there was no suggestion that the ATO had represented that penalties and interest would not be applied to the company’s outstanding liabilities.

52    The argument, thus, once again, reduced to a contention that, in the unfortunate circumstances in which the company found itself, the Deputy Commissioner should have exercised his discretion not to impose administrative penalties and interest charges, or to remit them if they were otherwise imposed. Alternatively, that the Court should exercise its discretion not to wind up the company, so as to avoid “further punishing” the company when it had done nothing wrong.

53    In circumstances, however, where there is simply no basis identified upon which the lawfulness of the administrative penalties imposed upon the company, or the interest charges applied, could be doubted, and where there is no improper motive capable of being imputed to the Deputy Commissioner, I do not think that the broad notion of unfairness upon which the company relies is capable of providing a proper basis upon which I would decline to exercise my discretion to wind up an insolvent company.

54    I do wish to emphasise, however, that there is no element of punishment in a Court’s decision to wind up a company.

55    The company also submitted that it was relevant that the full principal amount of all of its taxation liabilities had been paid, with the remaining outstanding amounts being attributable to the imposition of interest and penalties. In those circumstances, it was submitted that considerations of “proportionality and fairness” should restrict the further enforcement of amounts owing. I do not see, however, how the particular character of the company’s liabilities could be relevant to the exercise of the discretion. They are all “tax related liabilities” that are debts due to the Commonwealth.

56    Finally, the company submitted that the Court should take into account the serious financial, personal, and health impacts on the company and its directors. That the collapse of the company’s business, and its winding up, has had very serious consequences for the company and the individuals associated with it can readily be accepted. But they do not seem to me to go beyond the ordinary and natural consequences of the winding up of an insolvent company, and I do not think that they provide a reason to allow an insolvent company with no prospects to continue to trade.

57    In saying that, I do not wish to be taken to be dismissing or minimising the evident hurt and distress that Mr Dehsabzi suffers as a result of the collapse of what had been a very successful business, to which he had devoted many years of extremely hard work. Mr Dehsabzi evidently did everything that he could to keep his business afloat, and everything he could to make sure that the creditors of his company, in particular his employees, were paid everything that they were owed.

58    I can only emphasise again, that a decision to wind up the company should not be construed as any form of punishment of Mr Dehsabzi, nor even as a criticism of any of his conduct. It is simply a reflection of the general policy of the law, that insolvent companies should not be permitted to continue to trade.

Other Matters

59    The application also sought orders granting the company leave to file and serve (a) an objection to interest and penalties currently owing to the ATO and (b) a statement of claim in the Supreme Court of New South Wales against Domino’s Pizza Enterprises Ltd. I understood the substance of this aspect of the application to be that Mr Dehsabzi wished to cause the company to take the two steps indicated. There are a range of procedural and substantive difficulties with this aspect of the application, but I am able to deal with it on its merits, and I think it is best that I do so.

60    The company is now in external administration, and thus under the control of the liquidator. It will be for the liquidator to determine what action, if any, the company should take in relation to debts said to be owed by or to it. No basis has been demonstrated for interfering in the conduct of the winding up by the liquidator. Indeed, the liquidator has expressly indicated that he will take at least the initial step of corresponding with Domino’s about the potential claim that Mr Dehsabzi has raised. It follows that I decline to grant the relief sought (or any other relief directed to achieving the result sought by Mr Dehsabzi and/or the company).

Conclusion

61    For these reasons, I am satisfied that I should confirm the order made by the Registrar on 23 May 2025 that the company be wound up pursuant to s 459A of the Corporations Act.

62    It follows that the application for review filed on 3 June 2025 should be dismissed (both as to the review of the decision of the Registrar, and as to all other relief claimed).

[The parties addressed in relation to costs]

Costs

63    The application having been unsuccessful, there is no reason why costs should not follow the event and I will make an order that the defendant pay the plaintiff's costs of the application for review, save that in relation to an interlocutory application that was brought by the plaintiff but withdrawn before it was heard or determined, the order will be that the plaintiff and the defendant each bear their own costs.

64    The liquidator sought an order for costs in his favour and that it be payable by Mr Dehsabzi personally. I do not consider that there should be any order for costs in favour of the liquidator. He was not named as a party to the application, and no ground of review called for a response from him. The liquidator properly adopted the course of asking to be excused when the matter was called on, indicating that he did not propose to take a position in relation to the application. I do not agree that his participation in the proceedings was required by reason of the either substantive or, following my order, formal bringing of the application in the company’s name. In those circumstances, I do not think that the liquidator is entitled to an order for costs, and it follows that I do not need to consider whether, if I had made such an order, I would have been prepared to order that the costs be borne by Mr Dehsabzi personally.

Associate:

Dated:    16 September 2025