CORPORATIONS — winding up application — where Plaintiff served statutory demand on Defendant — where Defendant entered restructuring on final day for compliance with statutory demand — where following the end of the period of restructuring the Defendant issued a notice purporting to rescind the agreement said to give rise to the debt claimed in the statutory demand — where Plaintiff sought to amend its application to expand the grounds for the winding up of the Defendant and to seek a declaration that it was entitled to rely on the presumption of insolvency by reason of s 458C of the Corporations Act 2001 (Cth) — whether s 458C extended the time within which the Plaintiff could bring a winding-up application in reliance on the presumption of insolvency in s 459C(2)(a) by the length of time that the Defendant was in restructuring — whether the Plaintiff has standing to pursue the winding up application — whether there is a genuine dispute about the debt claimed in the statutory demand — whether the Plaintiff is a prospective or contingent creditor
Quick Take
1Section 453S of the Corporations Act 2001 (Cth), which stays proceedings during Part 5.3B restructuring, does not apply to winding-up applications, consistently with the established interpretation of the identically worded s 440D in Part 5.3A (following Australian Prudential Regulation Authority v Rural & General Insurance Ltd and [name withheld] v Mullumbimby News Pty Ltd); s 453Q alone governs winding-up applications during restructuring.
2Because s 453S does not prevent the commencement of a winding-up application during restructuring, s 458C (which extends time limits only where Part 5.3B prevents an act from being done) cannot operate to extend the three-month window in s 459C(2)(a) within which a failure to comply with a statutory demand gives rise to a presumption of insolvency.
3Where the presumption of insolvency under s 459C(2)(a) does not apply, s 459S does not prevent the company from disputing the debt underlying the statutory demand on the winding-up application; and where the applicant's creditor status involves obviously controversial issues based on disputed legal rights (here, a contested rescission under s 925A), the applicant lacks standing as a creditor or contingent/prospective creditor under s 459P.
