Federal Court of Australia

Deputy Commissioner of Taxation v Medicheckr Pty Ltd [2026] FCA 1524

ORDERS

THE COURT ORDERS THAT:

1.    The defendant, Medicheckr Pty Ltd ACN 156 286 896, be wound up in insolvency pursuant to the provisions of the Corporations Act 2001 (Cth).

2.    Alice Ruhe of The Ruhe Group, Level 5, 388 Queen Street, Brisbane, Qld 4000, a registered liquidator, be appointed the liquidator of Medicheckr.

3.    The plaintiff’s costs be fixed in the sum of $3,416.36 and reimbursed in accordance with s 466(2) of the Act.

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

REASONS FOR JUDGMENT

MEAGHER J

introduction

1    By an originating process filed on 3 December 2025 (Originating Process), the plaintiff, a Deputy Commissioner of Taxation, seeks the following orders (Orders) in respect of the defendant, Medicheckr Pty Ltd:

1.     An order that the Defendant be wound up in insolvency under the provisions of the Corporations Act 2001;

2.     An order that a liquidator of the Defendant be appointed;

3.     An order that the costs of the Plaintiff are paid out of the assets of the Defendant.

2    The plaintiff relies on a failure by the defendant to comply with a statutory demand. He relies on the following in support of the Orders:

(1)    The Originating Process, annexed to which were the following:

(a)    A Form 509H (Creditor’s Statutory Demand for Payment of Debt) dated 1 October 2025 (Statutory Demand) specifying that the amount of $70,462.20 (Debt) was owing by the defendant to the plaintiff as at 1 October 2025 and was due and payable.

(b)    A Form 7 (Affidavit Accompanying Statutory Demand) affirmed by Megha Goel on 1 October 2025 (First Goel Affidavit).

(2)    An affidavit of service of Megha Goel affirmed on 12 November 2025 (Second Goel Affidavit).

(3)    Consent of Alice Ruhe, of The Ruhe Group, to be appointed as the liquidator of the defendant, dated 24 November 2025 (Consent of Liquidator).

(4)    An affidavit in support of an application for winding up in insolvency, affirmed by Deborah Orford on 1 December 2025 (Orford Affidavit).

(5)    Affidavits of Michael Brandon affirmed on 26 February 2026, 12 March 2026 and 24 March 2026 (Third Brandon Affidavit).

(6)    Statement of costs and disbursements dated 12 March 2026 (Statement of Costs and Disbursements).

(7)    Written submissions dated 4 June 2026.

3    The defendant did not file any evidence or submissions resisting the Orders. Dr Nguyen, the director of the defendant, sent to my associate an email containing written submissions on the evening of 24 June 2026, being the day before the final hearing of the Originating Process.

the defendant’s representation

4    Before determining the substantive issues raised in this proceeding, I will address the issue of Dr Nguyen seeking leave to appear on behalf of the defendant at the hearing of the Originating Process.

5    On 23 June 2026 at 4:56pm, two days prior to the hearing, the defendant’s former solicitors filed a “Notice of Withdrawal as Lawyer”. The form used was in fact the form to be used in the Federal Circuit and Family Court of Australia (Division 2), but was in substance the same as a Notice of Ceasing to Act, which is used in this Court. It annexed a “Notice of Intention to Withdraw as Lawyer” dated 16 June 2026, which indicated to the defendant that the defendant’s former solicitors intended to withdraw, and that after 7 days they would file a Notice of Withdrawal as Lawyer. Inter alia, it indicated the date of 25 June 2026 at 10:15am as the date that the final hearing of the proceeding was listed. The Notice of Withdrawal as Lawyer stated that the defendant’s former solicitors had served the Notice of Intention to Withdraw as Lawyer on the defendant at least 7 days before the filing of the Notice of Withdrawal as Lawyer.

6    On 24 June 2026, my associate emailed the parties, including Dr Nguyen directly, attaching orders which had been made by consent on 25 March 2026 timetabling the proceeding to a final hearing on 25 June 2026, along with the covering email attaching those orders which was sent to the parties on 25 March 2026.

7    At the hearing on 25 June 2026, Dr Nguyen sought leave to appear on behalf of the defendant. The plaintiff neither consented to nor opposed him being granted leave, though he noted that there was no explanation as to why the defendant could not be represented by a lawyer, or why it had been represented by solicitors until two days before the final hearing.

Principles

8    Rule 4.01(2) of the Federal Court Rules 2011 (Cth) provides that a corporation must not proceed in the Court other than by a lawyer. However, by r 1.34 of the Rules, compliance with r 4.01(2) may be dispensed with.

9    In Ultimate Vision Inventions Pty Ltd v Industry Innovation and Science Australia (r 4.01(2) application) [2026] FCA 507, to which the plaintiff referred me, Hill J at [18] – [21] summarised the principles applicable to an application to grant leave to a person to appear on behalf of a corporation:

Reasons for r 4.01(2): Ordinarily a corporation will be required to be represented by a lawyer: Termi-Mesh at [13]. One reason for this requirement is to ensure that the person representing the corporation is authorised to do so. In addition, courts require properly qualified assistance in the pursuit of the administration of justice, and a person is generally unsuitable to speak for a company unless he or she has been admitted to legal practice and is bound by a lawyer’s strict obligations to the court itself: Francis at [36]; Flightdeck at [116](a).

Applicant must show “sufficient reason”: It is not necessary for the applicant to show special circumstances to be granted leave to be represented other than by a lawyer. Rather, the question is whether there is a sufficient reason in the interests of justice that the corporation be permitted to be represented other than by a lawyer, in the light of all relevant circumstances: Francis at [39]-[40], [42]; Flightdeck at [116](b) and (e).

Relevant factors: The factors relevant to the exercise of the discretion include the following: Francis at [44]-[45]; see also Flightdeck at [116](f):

(a)    the financial capacity of the company and those standing behind it, and whether a lack of financial capacity would inhibit a company from obtaining legal representation;

(b)    the complexities of the case and the capacity of the proposed representative to conduct it effectively having regard to the skills, training, qualifications and experience of that representative;

(c)    the overarching purpose of the civil practice and procedure provisions specified in s 37M of the Federal Court of Australia Act 1976 (Cth) and the effect on the achievement of that purpose if the company proceeds with, or without, legal representation;

(d)    the ability of the proposed representative to exercise the objectivity expected of a legal practitioner;

(e)    whether a lack of available disciplinary measures in relation to the persons seeking to represent the company will affect the administration of justice;

(f)    the manner in which the case has progressed to date and the manner in which it may progress without the party having legal representation;

(g)    when the company in question is a respondent, a more liberal approach to the exercise of the discretion may be warranted; and

(h)    whether the proposed representative is likely to be a witness at the trial, particularly if their credit may be in issue.

Financial capacity (factor (a)): Two further points can be made about the corporation’s financial capacity (see factor (a) in [0] above).

•    A lack of financial capacity of the company and of those standing behind it to afford legal representation weighs in favour of permitting the company to be represented by someone other than a lawyer. However, even if that is shown, it is necessary to weigh that against all other relevant circumstances, including the capacity of the proposed representative to effectively represent the company in the proceeding: Francis at [46].

•    In addition, it not sufficient to establish that the company alone lacks sufficient funds for a lawyer. It is necessary to also consider the financial capacity of those standing behind the company to fund its legal representation in the litigation. That is because it is unlikely to be in the interests of justice to grant the application to appear other than by a lawyer if those who stand to benefit from it being granted can, themselves, afford to fund the company’s legal representation in the litigation: Francis at [47]; Termi-Mesh at [13]-[14].

(Original emphasis.)

10    In Ultimate Vision, Hill J considered that the financial capacity of the company, which had not been conducting activities since at least 2018, and was in deficit for around $1.5 million, weighed in favour of leave being granted to an individual to represent it. However, the lack of information regarding the financial position of those standing behind it told against leave being granted: at [24] – [27].

11    What appeared to have been conclusive, however, was Hill J’s view as to the capacity of Mr Mark Nicolau, the father of the company’s sole director and shareholder, to conduct the proceeding effectively, as well as his ability to display the objectivity expected of a legal practitioner. His Honour noted that the proceeding raised a factually and legally complex legal issue, that Mr Nicolau’s draft notice of appeal suffered from several defects, and that Mr Nicolau rejected any suggestion that there were any such defects: at [31] – [33]. Mr Nicolau had also raised, in correspondence and submissions, issues which went “far beyond” the issues in the proceeding, in a manner that was generally aggressive: at [34] – [40]. Hill J held “grave concerns” as to Mr Nicolau’s ability to display the objectivity required of a lawyer: at [41]. It would not be consistent with the overarching objective in s 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act) to permit him to pursue on the applicant’s behalf the arguments in his notice of appeal: at [42]. Further, his correspondence disclosed his anger and frustration at how the proceeding had progressed, and indicated that he would have difficulty in displaying the objectivity required: at [43].

Consideration

12    No evidence was before the Court as to the defendant’s financial capacity, or as to that of those standing behind it.

13    At the hearing, Dr Nguyen stated that the defendant’s former solicitors had only withdrawn on 23 June 2026, and that he “didn’t receive anything from your associate until after 4:00pm yesterday”. When pressed on that latter statement, Dr Nguyen maintained that he had only received correspondence from my associate on 24 June 2026. He also stated, “There hasn’t been much progress in terms of providing evidence because the solicitor I retained did not get the information that was required”. However, he acknowledged that the defendant’s former solicitors informed him of the date of the final hearing.

14    Following a brief adjournment, I gave Dr Nguyen a further opportunity to address whether there was a sufficient reason in the interests of justice that he be granted leave to appear on the defendant’s behalf. He said that he was the sole director of the defendant, which had no employees or assets: in his words, “I am Medicheckr and Medicheckr is me”. When asked again whether there was any other reason why r 4.01(2) of the Rules should be dispensed with in this proceeding, he answered, “No, I have no objection to that rule”, and again reiterated the time constraints in which he would have been required to obtain legal representation for this hearing.

15    In these circumstances, I did not grant leave to Dr Nguyen to appear on the defendant’s behalf. First, no evidence as to the defendant’s or Dr Nguyen’s financial circumstances was before me. Dr Nguyen made bare assertions that he had sufficient personal funds to immediately satisfy the Debt. Were that assertion accepted, it would weigh against the grant of leave for him to represent the defendant: compare Ultimate Vision at [21]. Second, his submissions as to why leave should be granted were ultimately that he had had insufficient time to seek new representation, because he had only been notified at a late stage that the defendant’s former solicitors were withdrawing. Those submissions were contradicted by the fact that the defendant’s former solicitors had on 16 June 2026 at the latest served on it the Notice of Intention to Withdraw as Lawyer, meaning that had Dr Nguyen acted promptly, he would have had sufficient time to seek alternative representation for the defendant.

16    Third, while the proceeding was relatively simple, what I observed of Dr Nguyen’s capacity to conduct the proceeding effectively and his ability to display the objectivity expected of a legal practitioner weighed against the grant of leave. When making submissions as to why leave should be granted, he was argumentative and unable to present a fulsome picture of the procedural history of this proceeding. His assertion, in regard to the time and date of the hearing, that he “didn’t receive anything from your associate until after 4pm yesterday” was misleading given that he had been made aware by his former solicitors of the final hearing date. Further, the Court had in any event made him aware, by way of an email to his solicitors on 25 March 2026, of the final hearing date. That email attached the orders made by consent timetabling the matter to a hearing on 25 June 2026. He also appeared to blame the defendant’s former solicitors for the lack of any activity on the defendant’s part in complying with the procedural timetable. These statements indicated that he lacked the objectivity required of a legal practitioner, which weighed against the grant of leave.

17    Notwithstanding that I refused Dr Nguyen leave to appear on the defendant’s behalf at the hearing, I have considered the written submissions which he provided to my associate by email.

The substantive proceeding

Principles applicable to an application for winding up in insolvency

18    Section 459A of the Corporations Act 2001 (Cth) permits the Court, on an application under s 459P of the Act, to order that an insolvent company be wound up in insolvency. Section 95A(1) of the Act provides that a person is solvent if, and only if, the person is able to pay all the person’s debts, as and when they become due and payable. A creditor may apply for an order that a company be wound up in insolvency pursuant to s 459P(1)(b) of the Act. Where, during or after the period that is three months prior to the application, a company has failed to comply with a statutory demand made on the company under s 459E of the Act, the Court must presume that the company is insolvent: s 459C(2)(a) of the Act. However, a presumption of insolvency may be rebutted by the company the subject of the application: s 459C(3) of the Act. The Court would ordinarily expect to be presented with the company’s “fullest and best” evidence of its financial position: Commonwealth Bank of Australia v Begonia Pty Ltd (1993) 11 ACSR 609 at 617.

19    Section 459E of the Act prescribes certain requirements for a statutory demand:

(1)    The statutory demand must relate to an amount that is at least the statutory minimum, being $4,000.00: ss 459E(1)(a) and 9 (definition of “statutory minimum”) of the Act; Sch 2 to the Corporations Regulations 2001 (Cth), Form 509H.

(2)    The statutory demand must be in writing, in the prescribed form, signed by or on behalf of the creditor, specify the total amount of the debts, and require the company to pay that amount within 21 days of service: s 459E(2) of the Act; Sch 2 to the Regulations, Form 509H.

(3)    Unless the debt is a judgment debt, the statutory demand must be accompanied by an affidavit verifying that the debt is due and payable by the company, which complies with the rules of court: s 459E(3) of the Act; r 5.2 of the Federal Court (Corporations) Rules 2000 (Cth).

20    The time for compliance with a statutory demand where no application has been made to set it aside is 21 days: s 459F(2)(b) of the Act; Sch 2 to the Regulations, Form 509H. A company is taken to fail to comply with a statutory demand if the demand is still in effect and the company has not complied with it at the end of that period: s 459F(1) of the Act.

21    Where an application for winding up is made on the ground of a presumption of insolvency arising from a failure to comply with a statutory demand, the following requirements apply:

(1)    The application must set out the particulars of service of the demand, and the company’s failure to comply, have a copy of the demand attached to it and, unless the demand relates to a judgment debt, be accompanied by an affidavit complying with the rules of court and verifying that the debt claimed in the demand is due and payable by the company: s 459Q of the Act. Formal evidence of the debt is not required; it suffices that there is an affirmation on oath that the money is due and payable: Deputy Commissioner of Taxation v National Skin Institute (Aust) Pty Ltd [2012] FCAFC 2; 200 FCR 146 at [17].

(2)    The affidavit in support of the application must annex a record of a search of the records maintained by the Australian Securities and Investments Commission (ASIC), in relation to the company that is the subject of the application, carried out no earlier than 7 days before the application is filed: r 2.4 of the Rules.

(3)    In this proceeding, where the applicant is the Deputy Commissioner of Taxation, the affidavit in support of the application must be made by the creditor, or a person authorised by the creditor to make the affidavit on the creditor’s behalf: r 2.5(c) of the Rules.

22    Upon the making of an application for winding up, the applicant must:

(1)    Lodge with ASIC, not later than 10:30am on the next business day, a notice of the filing of the application in the prescribed form: s 470(1)(a) of the Act.

(2)    Within 14 days of the making of the application, serve a copy of it on the company: s 465A(1)(b) of the Act. Section 109X of the Act specifies methods of service on a company, which include leaving documents at, or posting them to, the company’s registered office: s 109X(1)(a) of the Act.

(3)    Publish a notice on ASIC’s Insolvency Notices Website at least three days after the application has been served on the company, and at least seven days prior to the date fixed for the hearing of the application: s 465A(1)(c) of the Act; r 5.6(2) of the Rules; reg 5.6.75 of the Regulations.

23    The Court has a wide discretion under s 459A of the Act which may be exercised on any ground not extraneous to the scope and purpose of the Act: Deputy Commissioner of Taxation v Swoosh Hand Car Wash Pty Ltd [2014] FCA 73 at [10]. The standing of an applicant to seek an order to wind up a company in insolvency is assessed at the time the application was filed: Deputy Commissioner of Taxation v Complete Liquid Transport Pty Ltd [2010] FCA 1067; 80 ATR 523 at [29].

24    Even where the requirements under the Act for the making of a winding up order are satisfied, the Court retains a discretion to decline to make a winding up order: ss 459A and 467(1)(a) of the Act. The discretion conferred by s 459A of the Act is broad. The confines of the Court’s discretion are to be found in the subject matter, scope and purpose of the Act, and the exercise thereof depends on an assessment of all the relevant circumstances: CBA Corporate Services (NSW) Pty Ltd v Walker [2013] FCAFC 74; 212 FCR 444 at [39] – [46].

25    In IOC Australia Pty Ltd v Mobil Oil Australia Ltd (1975) 11 ALR 417, Gibbs J at 427 stated as follows:

… The authorities show that as a general rule a creditor who cannot obtain payment is, as between himself and the company that owes the debt, entitled to a winding-up order as a matter of right.

(Footnotes omitted.)

26    The creditor’s right to an order for winding up in insolvency has been referred to as a right ex debito justitiae: see Deputy Commissioner of Taxation v Oldfields Holdings Ltd, in the matter of Oldfields Holdings Ltd [2026] FCA 247 at [53](1) and the authorities cited therein. In Deputy Commissioner of Taxation v Club Culture Pty Ltd [2017] FCA 338, White J at [19] referred to the “prima facie right” of “an undisputed and unsatisfied creditor” to obtain a winding up order against the company that owes the debt. See also Deputy Commissioner of Taxation v Xpress Resources Pty Ltd (No 3) [2018] FCA 1956 at [11].

27    Circumstances in which the Court might decline to exercise its discretion to order that a company be wound up in insolvency include where there is an indication that the company’s position might improve in the near future: Oldfields at [53].

Consideration

The plaintiff has satisfied the requirements under the Act

28    The plaintiff submits broadly that he has complied with the formal requirements under the Act for an application that the defendant be wound up in insolvency. Therefore, he has established his entitlement to an order to wind up the defendant. No contrary submissions were advanced by the defendant. Subject to one qualification as to service, I agree with the plaintiff.

29    The background facts which establish the plaintiff’s entitlement to the Orders are contained in the uncontradicted affidavit evidence relied upon by the plaintiff, and are as follows.

30    On 1 October 2025, the plaintiff caused the Statutory Demand to be issued to the defendant in the amount of $70,462.20, in respect of its indebtedness to the plaintiff. The Statutory Demand accordingly relates to an amount greater than the statutory minimum: ss 459E(1)(a) and 9 (definition of “statutory minimum”) of the Act; Sch 2 to the Regulations, Form 509H.

31    The Statutory Demand was signed by means of a facsimile signature on behalf of the plaintiff and is taken to have been signed by the plaintiff: reg 24 of the Taxation Administration Regulations 2017 (Cth). It required the defendant to pay to the plaintiff the amount owing within the statutory period after service of the Statutory Demand (i.e., 21 days, per s 459F(2)(b) of the Act; Sch 2 to the Regulations, Form 509H). The First Goel Affidavit, which accompanied the Statutory Demand, verifies that the Debt claimed in the Statutory Demand is due and payable by the defendant, and that there is no genuine dispute about the existence or amount of any of the Debt. The plaintiff has therefore complied with ss 459E and 459Q of the Act and r 5.2 of the Rules.

32    On 1 October 2025, an officer employed by the plaintiff served the Statutory Demand and the First Goel Affidavit on the defendant by posting a copy of these documents to the defendant’s registered address, as recorded in the current and historical ASIC extract for the defendant. In the absence of any contrary evidence, the defendant can be said to have been served with the Statutory Demand on 10 October 2025: s 160 of the Evidence Act 1995 (Cth). The defendant had until 31 October 2025 to comply with the Statutory Demand.

33    As at 1 December 2025, neither the Statutory Demand nor the First Goel Affidavit had been returned to the plaintiff through the postal system. The defendant failed to pay the Debt demanded or to secure or compound for that amount to the plaintiff’s reasonable satisfaction within 21 days after the demand was served on the defendant. It accordingly failed to comply with the Statutory Demand: s 459F(1) of the Act. The filing of the Originating Process, effected on 3 December 2025, was within three months of the defendant’s failure to comply with the Statutory Demand. Therefore, the Court must presume that it is insolvent: s 459C(2)(a) of the Act. Dr Nguyen in his email submissions contended that the defendant was solvent; however, no evidence was provided in support of this submission.

34    The defendant has not made any application under s 459G of the Act to set aside the Statutory Demand.

35    The Orford Affidavit, which was filed in support of the Originating Process, annexed a current and historical ASIC extract of the defendant, as required by r 2.4 of the Rules. Ms Orford is authorised to make that affidavit on the plaintiff’s behalf; therefore the Orford Affidavit satisfies the requirement contained in r 2.5(c) of the Rules.

36    On 3 December 2025, the plaintiff’s solicitor lodged with ASIC a Form 519 – Notification of Court Action Relating to Winding Up, as required by s 470(1)(a) of the Act.

37    On 8 December 2025, the plaintiff’s solicitor purported to serve on the defendant sealed copies of the Originating Process (which included the Statutory Demand and the First Goel Affidavit), the Orford Affidavit, the Second Goel Affidavit and the Consent of Liquidator, by posting these documents to the defendant’s registered office, as required by s 465A(1)(b) of the Act.

38    On 23 January 2026, the plaintiff’s solicitor caused to be inserted on ASIC’s Insolvency Notices website a Notice of Application for Winding Up Order in relation to this proceeding, in compliance with s 465A(1)(c) of the Act, r 5.6(2) of the Rules and reg 5.6.75 of the Regulations.

39    On 3 February 2026, Tusk Lawyers filed a notice of appearance on behalf of the defendant, and informed the plaintiff by letter of the same date that it acted for the defendant. That letter raised the issue with the plaintiff that he had omitted to include the Originating Process in the letter that his solicitor sent to the defendant on 8 December 2025. The letter stated, inter alia:

In those circumstances, our client’s position is that the Originating Application has not been properly served and service is defective and not admitted.

As a consequence, our client is not presently in a position to respond to the proceedings.

In light of this, we propose that the matter be adjourned for a period of not less than four (4) weeks, during which time:

(a)     Proper service of the Originating Application and all supporting material may be effected on our office;

(b)     Upon proper service, our firm will provide an endorsed copy of the Originating Application; and

(c)     Our client wishes to engage in discussions with your client to attempt to resolve the proceeding as a whole.

40    It is therefore not clear that the plaintiff served the defendant with the Originating Process within the 14-day timeframe required by s 465A(1)(b) of the Act, though the plaintiff by his submissions appears to maintain that he did so, and the Third Brandon Affidavit deposes that the Originating Process was included in the documents served on the defendant on 8 December 2025.

41    On 6 February 2026, a hearing previously listed in this proceeding before a judicial registrar of this Court for that day was adjourned by consent. On 9 February 2026, the plaintiff sent to the defendant’s solicitors, by email and by post, inter alia, the documents referred to at [37] above. In the absence of contrary evidence, it is presumed that the documents that were posted were received seven working days after having been posted (i.e., on 18 February 2026): s 160 of the Evidence Act.

42    Whether or not service of the Originating Process occurred on 8 December 2025, I consider that this is not fatal to the plaintiff being entitled to the relief that he claims in the Originating Process. Section 467A of the Act provides that an application under Pt 5.4A of the Act (in which ss 459A and 459P of the Act are found) must not be dismissed merely because of a defect or irregularity in connection with the application, unless the Court is satisfied that substantial injustice has been caused that cannot otherwise be remedied by, for example, an adjournment or an order for costs. In Re Denham Constructions Pty Ltd [2016] NSWSC 567, Black J at [18] – [20] stated:

… s 465A of the Corporations Act is not the source of the Court’s jurisdiction to deal with a winding up application which arises under s 459P of the Corporations Act, which permits specified persons to apply to the Court for a company to be wound up in insolvency, or under s 461 of the Corporations Act in respect of winding up on other grounds. Section 465A seems to me to be a procedural direction, although mandatory in character, as to the steps which must be taken by a person who applies to wind up a company under, relevantly, s 459P of the Corporations Act.

I am reinforced in that view by the fact that s 465A of the Act has taken its present form for several years and Mr Katekar fairly accepted that he had not been able to identify any occasion on which a winding up application had been dismissed because it was served outside the 14 day period specified in s 465A(b) of the Corporations Act. That position is to be contrasted with the many occasions on which applications to set aside a creditor’s statutory demand have failed by reason of service outside the 21 day period specified in s 459G of the Corporations Act.

Dr Greinke also submits, and I accept, that it appears that late service under s 465A(b) of the Corporations Act would constitute a defect or irregularity in connection with a winding up application, for the purposes of s 467A of the Corporations Act, which would not have the result that the winding up application would be dismissed unless the Court was satisfied that substantial injustice had been caused. The position in that respect differs from that in respect of noncompliance with the time limit in s 459G of the Act, because the time limit in that section is an essential aspect of the Court’s jurisdiction.

(Emphasis added.)

43    Accordingly, any failure to effect service of the Originating Process within 14 days of it being filed, as required by s 465A of the Act, is a defect or irregularity to which s 467A of the Act applies. I am not satisfied that any substantial injustice has been caused for the following reasons. First, the hearing of the Originating Process, which was originally due to take place on 6 February 2026, was adjourned twice. It ultimately took place on 25 June 2026. The letter from the defendant’s former solicitor to the plaintiff’s solicitor dated 3 February 2026, annexed to the Third Brandon Affidavit and referred to above at [39], indicates that at least the first adjournment of the hearing occurred as a result of the allegedly defective service of the Originating Process. Presumably, the defendant’s former solicitors considered that an adjournment was sufficient to cure any injustice caused by the allegedly defective service. Second, there is no indication that any further defect in service is alleged; rather, the evidence in the Third Brandon Affidavit indicates that the defendant was served by the plaintiff with the Originating Process by way of letter and email on 9 February 2026. The defendant’s former solicitors remained on the record until 23 June 2026, which was plainly a sufficient time to prepare to meet the plaintiff’s claim for relief. In these circumstances, I consider that no substantial injustice has occurred by reason of the plaintiff’s failure to comply with s 465A(1)(b) of the Act.

44    The Court’s power to wind up the defendant in insolvency under s 459A of the Act is enlivened.

The Court’s discretion to wind up in insolvency

45    As the abovementioned authorities indicate, the Court retains a discretion even though the requirements for the making of an order winding up the defendant are satisfied. However, as a general rule, the plaintiff is prima facie entitled to an order winding up the defendant in insolvency.

46    Dr Nguyen sought that the defendant be permitted to satisfy the Debt, and upon confirmation of payment, that the proceeding be dismissed or discontinued.

47    While not addressed specifically to the issue of the exercise of the Court’s discretion, the email submissions provided by Dr Nguyen on the defendant’s behalf were applicable to the exercise of the Court’s discretion to wind up the defendant in insolvency. Broadly, Dr Nguyen submitted that the defendant had acted in good faith, though its taxation affairs had fallen into arrears due to its accountant’s health issues in 2022. Consequently, several lodgements remained outstanding and its taxation affairs had not been properly reconciled. He said that “[u]pon becoming aware of the extent of the issue”, he had engaged the defendant’s accountant to rectify its position and bring outstanding lodgements up to date. He said that preparation and lodgement of all outstanding Business Activity Statements and Income Tax Returns was underway.

48    Dr Nguyen said that the defendant’s tax position had not yet been fully reconciled, and that its balance might change once outstanding lodgements were completed. Inter alia, it reserved the right to seek remission of general interest charges. Further, he said that the defendant was not unwilling or unable to satisfy its taxation obligations, and in any event that he personally had the funds to satisfy the Debt, which he was prepared to pay for the sole purpose of resolving the immediate application for winding up. Further, he said that the defendant was prepared to “satisfy the amount presently claimed immediately upon receipt of payment details”. In circumstances where the defendant was able and willing to satisfy the Debt, continuing the winding up proceeding served no practical purpose.

49    No evidence was provided by Dr Nguyen in support of the above submissions. They were no more than bare assertions. In particular, no evidence was before the Court regarding the possibility that the defendant’s financial position may, in the near future, change such that the Court should not exercise the discretion to order that it be wound up in insolvency. No evidence was adduced regarding the effect of the defendant completing the outstanding lodgements on its ability to satisfy the Debt. Nor was there any evidence as to Dr Nguyen’s capacity to pay the Debt. In circumstances where Dr Nguyen has been on notice of the plaintiff’s Originating Process since 9 February 2026, has been on notice of the final hearing of this proceeding since 25 March 2026, and has had solicitors on the record until 23 June 2026, it is surprising that, apparently, no action has been taken on the defendant’s or Dr Nguyen’s part to arrange for payment of the Debt, assuming that Dr Nguyen or the defendant is or will be able to pay it. In light of the above, I am not persuaded that the defendant’s circumstances are such that the Court’s discretion under s 459A of the Act should be exercised other than to wind it up in insolvency.

Conclusion

50    I will make orders that the defendant be wound up in insolvency, and that a liquidator be appointed.

COSTS

51    The plaintiff sought that his costs be fixed in the sum of $3,416.36 and reimbursed in accordance with s 466(2) of the Act.

52    Section 43(3)(d) of the FCA Act permits the Court to “award a party costs in a specified sum”. Rule 40.02(b) of the Rules permits a person entitled to costs to apply to the Court for an order that costs “be awarded in a lump sum, instead of, or in addition to, any taxed costs”. The Court’s discretion to award costs under s 43 of the Act is largely unfettered, but must be exercised judicially: Summers v Repatriation Commission (No 2) [2015] FCAFC 64 at [13] – [14]. The Court has a preference for ordering costs on a lump-sum basis wherever practicable in order to finalise the costs issue and, where possible, avoid a potentially expensive and lengthy taxation of costs hearing: Royal v El Ali (No 3) [2016] FCA 1573 at [10]. This is reflected in the Court’s Costs Practice Note (GPN-COSTS) at [4.1] – [4.2].

53    It is appropriate to fix costs in a lump sum amount where the matter is relatively simple: Fewin Pty Ltd v Burke (No 3) [2017] FCA 693 at [12], citing Keen v Telstra Corp Ltd (No 2) [2006] FCA 930 at [6]. An appropriate starting point is the charges rendered by the solicitors for the party seeking costs orders in its favour. The sum fixed must also be proportionate to the nature and complexity of the case: at [14], citing Canvas Graphics Pty Ltd v Kodak (Australasia) Pty Ltd [1998] FCA 23.

54    The plaintiff’s costs in the proceeding appear from the Statement of Costs and Disbursements. The amount of $3,416.36 appears to be an entirely reasonable amount, having regard to the level of complexity of this proceeding. It is appropriate to make an order that costs be fixed, in circumstances where this proceeding is not complex, and in the interests of avoiding further litigation. Accordingly, I will order that costs be fixed in that amount.

Associate:

Dated:    14 October 2026