Where the debt the subject of a statutory demand is paid after filing of a winding up application but before the hearing, the application will be dismissed unless the applicant establishes some positive reason for a winding up order beyond the mere deemed insolvency. Affidavits deposing to bare conclusions of indebtedness without setting out the underlying facts are inadmissible to prove other debts on a winding up application. The statutory presumption of insolvency under s459C(2) of the Corporations Law operates differently from the deemed insolvency under the former Companies Code s364(2)(a), requiring the court hearing the application to make the presumption rather than deeming insolvency at the moment of non-compliance.
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