Barboutis v The Kart Centre Pty Ltd [No 2]

[2020] WASCA 41

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Corporations
2. › Winding up
3. › Application to wind up company
4. › Standing
5. › Whether person validly appointed as director
6. › Evidence to the contrary for purposes of s 1274B(2)
7. › Requirements for resignation and appointment of director under shareholders agreement and constitution
8. › Corporations Act 2001 (Cth), s 1274B(2), s 201D
1. Corporations
2. › Winding up
3. › Application to wind up company
4. › Standing
5. › Whether applicant a creditor
6. › Characterisation of cash contributions as loan or capital contribution
7. › Terms of repayment of shareholder loan
8. › Whether debt repayable on demand
1. Corporations
2. › Winding up
3. › Insolvency
4. › Whether company able to pay debts as and when they become due and payable
5. › Cash flow test
6. › Ability to obtain unsecured loan funds from associated entity
7. › Whether debt established as presently due and payable
8. › Corporations Act 2001 (Cth), s 95A
1. Corporations
2. › Winding up
3. › Just and equitable ground
4. › Deadlock in management
5. › Whether deadlock established where applicant not validly appointed as director

Quick Take

Practitioners relying on ASIC records under s 1274B(2) to establish directorship should note that the provision is of lesser effect than a prima facie evidence provision and is displaced by any evidence to the contrary, after which the fact must be proven in the usual way.