Event and Time
Event Description
On 26 October 2021, Mr. and Mrs. Pham filed an application to wind up ENA Development Pty Ltd (“ENA”) due to its failure to comply with a creditor’s statutory demand. The demand, which amounted to $46,164, was based on a costs order from a previous Supreme Court proceeding.
Application and Claims
The plaintiffs claimed that ENA was insolvent due to non-payment of a statutory demand and provided evidence supporting their claims, including affidavits detailing the debt and the service of the demand. ENA did not file appropriate evidence to dispute its insolvency and relied on the possibility of future payments and restructuring relief as a basis to avoid winding up.
Judicial Decisions
The judge ruled in favor of the plaintiffs, ordering ENA’s winding up based on the established presumption of insolvency as ENA failed to counter the claims with adequate evidence or set aside the statutory demand.
Dispute Points and Legal Basis
Dispute Points
- Plaintiffs (Pham's Claims):
- Filed an application based on ENA's non-compliance with the statutory demand. - Provided affidavits confirming ENA's debt and lack of payment. - Argued that ENA had no current disputes regarding the debt’s validity.
- Defendant (ENA's Defense):
- Claimed directors believed ENA was solvent and could pay the debt shortly. - Attempted to raise an argument regarding a pending appeal and potential restructuring relief. - Did not adequately respond to the demand or provide evidence of solvency as required.
Ruling and Impact
Ruling Result
The court ordered that ENA Development Pty Ltd be wound up in insolvency and appointed Mr. Peter Krejci as the liquidator. The plaintiffs were awarded costs related to the winding up application.