Reasons why application should be granted
11 The following matters lead me to conclude on the evidence that the winding up of the Company should be terminated. They are disclosed by the two affidavits of Mr Bessant and the affidavit of Ms Bessant relied upon in the application. I have also taken into account the affidavit of Mark Hyde, a solicitor acting for the liquidators.
12 First, the events that resulted in the winding up order have been explained and steps have been taken to bring this application quickly.
13 Second, additional cash flow of the Company has been and will continue to be provided when required by a director loan provided by Ms Bessant (and with only long term potential recourse). Ms Bessant is independently employed.
14 Third, the secured creditor, being the National Australia Bank, has not indicated any intention at present to call in the amount owed by the Company or enforce any of its securities. It has security by way of a registered mortgage over a commercial property in Bunbury and by way of a substantial term deposit. The Bank is aware of steps currently being taken by the Company to realise one of the commercial properties and according to Mr Bessant, the Bank is working with him to facilitate a sale. Mr Bessant says that if the property is not sold it will be leased, with the rental stream enhancing cash flow for meeting the Company's debts going forward.
15 Fourth, as to its financial position, apart from the Bank and subject to the position as to the liquidators' costs, the Company currently has no other creditors with debts due and payable. The amount claimed by the Commissioner has been paid; the amount of costs awarded to the Commissioner on the winding up application has been paid; the sum of $15,000 has been deposited into the Company's solicitor's trust account to meet, in part, the costs of the liquidators; the City of Bunbury is a creditor with respect to council rates not yet due and the property manager for the relevant premises has told Mr Bessant that she holds sufficient funds to pay those rates due by the Company; and otherwise there are no other creditors.
16 The annual trial balances for the H&A Family Trust for the years ending 30 June 2018 and 30 June 2019 have been prepared by the Company's accountants. Mr and Ms Bessant have retained external accountants since 1999 and all taxation records for the Company, including profit and loss and balance sheets, are up to date. Mr and Ms Bessant both depose to the fact that, having reviewed the accounts for the trust and Company, they believe the Company to be solvent and able to pay its debts as and when they fall due.
17 Having regard to the interests of creditors, I am satisfied on the basis of the evidence before me that the financial health of the Company is such that it may safely be released from liquidation and returned to the control of its directors.
18 Fifth, the Commissioner consents to an order for termination of the winding up.
19 Sixth, the liquidators do not consent to, but do not oppose, the application. They have indicated through counsel that they have not been in a position to investigate the solvency of the company in any detail.
20 Seventh, I am satisfied that ASIC has been informed of the application to terminate the winding up. It has not sought to participate.
21 Eighth, whilst I acknowledge that the liquidators' role to date has necessarily been somewhat limited, the evidence does not indicate that any issue has been raised in relation to any ongoing breaches by the Company of its obligations to maintain proper accounts or meet its taxation liabilities, or in relation to any breaches of statutory obligations or misconduct by any officer of the Company.
22 Ninth and finally, no issue has been raised that would mean there is a public interest in the affairs of the Company being wound up and remaining under the supervision of a liquidator.
23 Taking into account those matters, in my view it is appropriate to make orders terminating the winding up.
24 There is only one outstanding issue, being the payment of the balance of the liquidators' costs. I am told that the payment of the balance of the liquidators' costs in the sum of $14,576.75 has been remitted to the company's solicitors' trust account but those funds have not cleared. However, should there be any issue as to the clearance of those funds, I have been told through counsel that the company's solicitors undertake to the liquidators that such balance will be paid. The liquidators accordingly did not oppose the termination order being made despite part of their costs remaining outstanding as at the date of the order.
25 There will be no order as to costs of the application.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Banks-Smith.