Workers' Compensation Nominal Insurer v Roland Building Services Pty Ltd

[2008] NSWSC 13

CITATION:	Workers' Compensation Nominal Insurer v Roland Building Services Pty Ltd [2008] NSWSC 13
HEARING DATE(S):	17 January 2008
JUDGMENT DATE :	17 January 2008
JURISDICTION:	Equity
JUDGMENT OF:	Campbell JA
EX TEMPORE JUDGMENT DATE:	17 January 2008
DECISION:	Order winding up defendant and appointing liquidator set aside.
CATCHWORDS:	CORPORATIONS - winding up - application to set aside order for winding up - court order made on basis of fundamental error
LEGISLATION CITED:	Uniform Civil Procedure Rules
CASES CITED:	Double Bay Newspapers Pty Limited [2006] NSWSC 226; (2006) 57 ACSR 131
PARTIES:	Workers Compensation Nominal Insurer - Plaintiff Roland Building Services Pty Ltd - Defendant
FILE NUMBER(S):	SC 5161/07
COUNSEL:	D McCrostie, solicitor - Plaintiff
SOLICITORS:	TurksLegal - Plaintiff

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST

CAMPBELL JA

THURSDAY 17 JANUARY 2007

5161/07 IN THE MATTER OF ROLAND BUILDING SERVICES PTY LIMITED (IN LIQUIDATION)
WORKERS’ COMPENSATION NOMINAL INSURER v ROLAND BUILDING SERVICES PTY LTD

JUDGMENT – Ex Tempore

1 HIS HONOUR: This is the hearing of an interlocutory process which seeks the setting aside of an order for winding up of the defendant, that the Court made on 27 November 2007. It is now known that that order was made on the basis of a factual mistake of a fundamental nature. The debt upon which the initiating process had been based had, in fact, been paid at the time that the winding up order was made. Because of a lack of communication between officers of the plaintiff and its solicitors, an affidavit was placed before the court, on the day the winding up order was made, that incorrectly asserted that the debt was still unpaid. This error has now been discovered.

2 When a court order has been made on the basis of an error relating to a fundamental matter, it is open to the court to set aside the order: Double Bay Newspapers Pty Limited [2006] NSWSC 226; (2006) 57 ACSR 131. In the present case it is appropriate for the winding up order to be set aside. I shall make orders to that effect together with consequential orders.

3 I am informed that the only proof of debt that has been filed is one by the Australian Taxation Office. In the unusual circumstances of this case, it seems to me that it is appropriate for the Australian Taxation Office to be given notice of the orders that are made today. I direct the solicitor for the plaintiff to notify the Australian Taxation Office of the making of the orders that have been made today, and to provide the Australian Taxation Office with a copy of the affidavit and interlocutory process on the basis of which those orders were made by close of business on Monday 21 January 2008.

4 I make orders 1, 2, 4 and 5 in the interlocutory process, namely

1. This interlocutory application be returned and heard instanter.

2. Pursuant to regulation 36.15 of the Uniform Civil Procedure Rules the order of the Court dated 27 November 2007 winding up the defendant and appointing Scott Darren Pascoe as liquidator be set aside.

4. The originating process is otherwise adjourned to the Registrar’s list at 11.00am on 12 February 2008.

5. The parties bear their own costs of this Interlocutory Process.

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