Plaintiff v Defendant

1. The plaintiff, Synnex Australia Pty Ltd applies pursuant to s 459P of the Corporations Act 2001 (Cth) ('the Act') to wind up the defendant, Greenpoint IT Pty Ltd.

1. The plaintiff served a statutory demand dated 10 February 2025 on the defendant. The demand claimed that the defendant owed the plaintiff $13,124.35 in respect of a default judgment obtained in the Magistrates' Court on 29 January 2025.
2. The defendant did not comply with the demand. The defendant's director, Asish Narayan, asserts that he did not receive the statutory demand but the defendant accepts that it was validly served. The defendant is therefore presumed to be insolvent pursuant to s 459C of the Act.
3. On 4 May 2025, an application to set aside the default judgment was filed on behalf of the defendant in the Magistrates' Court and on 11 June 2025, the default judgment was set aside and the defendant was ordered to pay $945.00 to the plaintiff for its costs.

1. The defendant is presumed to be insolvent because it has failed to comply with the statutory demand. Section 459C of the Act provides:

Presumptions to be made in certain proceedings

(1) This section has effect for the purposes of:

(a) an application under section 234, 459P, 462 or 464; or

(b) an application for leave to make an application under section 459P.

(2) The Court must presume that the company is insolvent if, during or after the 3 months ending on the day when the application was made:

(a) the company failed (as defined by section 459F) to comply with a statutory demand; or

(b) execution or other process issued on a judgment, decree or order of an Australian court in favour of a creditor of the company was returned wholly or partly unsatisfied; or

(c) a receiver, or receiver and manager, of property of the company was appointed under a power contained in an instrument relating to a circulating security interest in such property; or

(d) an order was made for the appointment of such a receiver, or receiver and manager, for the purpose of enforcing such a security interest; or

(e) a person entered into possession, or assumed control, of such property for such a purpose; or

(f) a person was appointed so to enter into possession or assume control (whether as agent for the secured party or for the company).

(3) A presumption for which this section provides operates except so far as the contrary is proved for the purposes of the application.

1. In relation to solvency, s 95A of the Act provides:

(1) A person is solvent if, and only if, the person is able to pay all the person's debts, as and when they become due and payable.

(2) A person who is not solvent is insolvent.

Note: A company is taken to be insolvent if the company proposes a restructuring plan to creditors (see subsection 455A(2)).

1. In Queensland Phosphate Pty Ltd v Korda [No 2],[1] the Court of Appeal stated the test that should be applied in relation to solvency as follows:

The applicable test as to insolvency was stated by Barwick CJ (with whom McTiernan and Windeyer JJ agreed) in Sandell v Porter as follows:

Insolvency is ... an inability to pay debts as they fall due out of the debtor's own money. But the debtor's own moneys are not limited to his cash resources immediately available. They extend to moneys which he can procure by realisation by sale or by mortgage or pledge of his assets within a relatively short time - relative to the nature and amount of the debts and to the circumstances, including the nature of the business, of the debtor. The conclusion of insolvency ought to be clear from a consideration of the debtor's financial position in its entirety and generally speaking ought not to be drawn simply from evidence of a temporary lack of liquidity. It is the debtor's inability, utilising such cash resources as he has or can command through the use of his assets, to meet his debts as they fall due which indicates insolvency.

The above test has been applied by this Court. It has been said that s 95A of the Corporations Act adopts a cash flow test of insolvency which focusses on the liquidity and viability of the business. The test focusses upon whether a company is 'able' to pay its debts rather than whether it is 'willing and able' to do so.

Whether a company is insolvent for the purposes of s 95A of the Corporations Act is a 'question of fact to be ascertained from a consideration of the company's financial position taken as a whole'. In considering the company's financial position as a whole, the court must have regard to commercial realities, which will be relevant in considering the resources available to the company to meet its liabilities as and when they fall due. Commercial realities include the nature of the company's business, the character of the debt and all of the circumstances present at the relevant time.

Commercial realities will also be relevant to consideration of whether the company can realise funds from its assets in order to pay its debts as and when they fall due and the time in which those assets can be realised. Whether an asset is realisable requires consideration of the timeframe in which the asset can be realised and produce cash. There is a temporal limit on whether an asset can be considered realisable which has been described as the realisation of assets 'within a relatively short time', 'within a reasonable time', 'relatively quickly', and 'in time to meet the indebtedness as the claims mature'.[2]

1. In Ace Contractors and Staff Pty Ltd v Westgarth Development Pty Ltd ('Ace Contractors'),[3] Weinberg J referred to what is required to rebut a presumption of insolvency. His Honour said:

The authorities which govern the operation of s 459G of the Corporations Law seem to me to establish the following propositions:

● The respondent is presumed to be insolvent and as such bears the onus of proving its solvency: s 459C(2) and (3); Elite Motor Campers Australia v Leisureport Pty Ltd [1996] FCA 951; (1996) 22 ACSR 235 per Spender J; Commissioner of Taxation v Simionato Holdings Pty Ltd. [1997] FCA 125; (1997) 15 ACLC 477 per Mansfield J.

● In order to discharge that onus the Court should ordinarily be presented with the "fullest and best" evidence of the financial position of the respondent: Commonwealth Bank of Australia v Begonia (1993) 11 ACLC 1075 at 1081 per Hayne J.

● Unaudited accounts and unverified claims of ownership or valuation are not ordinarily probative of solvency. Nor are bald assertions of solvency arising from a general review of the accounts, even if made by qualified accountants who have detailed knowledge of how those accounts were prepared: Simionato Holdings Pty Ltd (supra); Re Citic Commodity Trading Pty Ltd v JBL Enterprises (WA) Pty Ltd [1998] FCA 232 per Heerey J; Leslie v Howship Holdings Pty Ltd [1997] FCA 133; (1997) 15 ACLC 459 at 463 per Sackville J.

● There is a distinction between solvency and a surplus of assets. A company may be at the same time insolvent and wealthy. The nature of a company's assets, and its ability to convert those assets into cash within a relatively short time, at least to the extent of meeting all its debts as and when they fall due, must be considered in determining solvency: Rees v Bank of New South Wales [1964] HCA 47; (1964) 111 CLR 210; Re Tweeds Garages Ltd [1962] Ch 406 at 410 per Plowman J; Simionato Holdings Pty Ltd (supra); Melbase Corporation Pty Ltd v Segenhoe Ltd [1995] FCA 1225; (1995) 13 ACLC 823 at 832 per Lindgren J; Leslie v Howship Holdings Pty Ltd (supra) at 465-466.

● The adoption of a cash flow test for solvency does not mean that the extent of the company's assets is irrelevant to the inquiry. The credit resources available to the company must also be taken into account: Sandell v Porter (1966) 115 CLR 666 at 671 per Barwick CJ (with whom McTiernan and Windeyer JJ agreed); Leslie v Howship Holdings Pty Ltd (supra) at 466; Taylor v ANZ Banking Group Ltd (1988) 6 ACLC 808 at 812 per McGarvie J.

● The question of solvency must be assessed at the date of the hearing. However, this does not mean that future events are to be ignored: Leslie v Howship Holdings Pty Ltd (supra) at 466-467.

● It is no abuse of process for an applicant to seek to wind up a company presumed to be insolvent by reason of its failure to comply with a statutory demand merely because that company contends that it is solvent, or because there may be alternative means available to the applicant to vindicate its rights: Elite Motor Campers Australia v Leisureport Pty Ltd (supra).[4]

1. In support of an application for an adjournment the defendant relied on an affidavit sworn on 28 May 2025 by its sole director Asish Narayan who deposed that 'the Defendant seeks an adjournment to put on the fullest and best evidence as to solvency'. On 4 June 2025, the Court adjourned the application to wind up the defendant.
2. In a further application for an adjournment, Mr Narayan in his affidavit sworn on 20 June 2025, deposed that:

The Defendant has sought to obtain audited accounts and expert solvency evidence, however encountered certain delays which are set out in the affidavit of Dean Bosman dated 20 June 2025. It has obtained a Preliminary Report which is exhibited to that affidavit.

1. On 25 June 2025, Woronczak JR adjourned the application. In 'Other Matters' to the orders made by Woronczak JR it is noted that the defendant submitted it would suffer prejudice in not being able to present the fullest and best evidence of its solvency if the winding up proceeded.
2. At the hearing of this matter, the defendant relies on an expert report prepared by Norman Jones who is a former insolvency practitioner to demonstrate that it was solvent. That report was prepared on information provided to Mr Jones which was not subject to any audit procedures.
3. The accounts of the defendant have not been audited and no explanation has been provided to the Court why they were not audited even though an adjournment was sought by the defendant to seek an expert report and audited accounts.
4. Mr Jones relied upon information provided to him by the defendant and did not carry out any audited procedures. He identified a list of critical documents which he would require to prove solvency. Mr Jones was provided some but not all of the documents in the list that he referred to. No explanation is given as to whether any of the documents he requested was available or not.
5. The plaintiff submits that while Mr Jones was subsequently provided with some documents, it does not appear that he was provided with those stated to be critical. The plaintiff further submits that because not all of the documents had been provided to Mr Jones, his view as to the solvency of the defendant is therefore caveated with a statement that his opinion is reserved to the extent that further documented evidence may become available.
6. The plaintiff further submits that having regard to the caveat provided by Mr Jones, and the fact that the accounts have not been the subject of any audit, the Court should not accept the report as providing evidence of solvency.
7. Mr Narayan, in his first affidavit, sworn on 28 May 2025, deposed that the defendant operates a small information technology business and incurs minimal costs to provide nominal reporting services to clients. He asserts that the defendant can pay its debts as and when they fall due.
8. Mr Narayan produced to the Court a copy of the defendant's profit and loss report from 1 July 2024 to 27 May 2025. That report shows that the defendant has net earnings and gross profit of $21,130.74 which is made up by total income, $21,022.74 to which is added another $108 for costs of sales. This does not appear to make sense as it seems that the company has gained $108 from its costs of sales. Such a small amount makes no difference to an analysis of solvency.
9. The defendant's solicitor, Dean Brosman, in his affidavit of 3 June 2025 refers to the affidavit of Mr Narayan. He deposes that the statement shows that the defendant has a very small operation with a turnover of $21,130.74, less costs of operations that are applied at the end of the financial year. He says that he is instructed by Mr Narayan that the costs of the operation are significantly below the earnings, however it would not be more than $6,000.00.
10. Mr Jones has prepared a summary of the key financial information for the company. According to Mr Jones, in each financial year from 2021 up to and including 2025, the company has made a loss before tax. This is in contrast to what has been deposed by Mr Narayan.
11. I am not convinced that Mr Jones has been provided with accurate information and I do not accept his report regarding solvency. The onus is on the defendant to rebut the presumption of insolvency and without audited accounts, in my view, it is unable to do so. I am not convinced that the financial reports provided to the Court are accurate.
12. If the Court could rely on the unaudited accounts, I note that the balance sheet shows cash assets of $10,288, which is insufficient to pay the alleged debt owed to the plaintiff. However the defendant submits that due to the financial support of its director, Mr Narayan, the defendant can pay its debts as they fall due.
13. Mr Narayan deposes that:
    • − he has financially supported the defendant since incorporation. The defendant's largest liability is a director's loan.[5] He undertakes not to call on that loan for at least 12 months and attempts to continue supporting of the defendant;
    • − a loan by BMW Finance to the defendant is being paid, is not in arrears and is secured by a chattel mortgage and the director's personal guarantee;
    • − the defendant has, historically, had a modest but consistent income and is effectively trading and generating new business;
    • − he has the habit to pay creditors either from the defendant's funds, or by personally paying the debts;
    • − no tax is owing and a substantial refund is expected; and
    • − no creditors are pursuing outstanding debts, other than the plaintiff.
14. The defendant submits that the ongoing support from the director should be taken into account in assessing the defendant's solvency, having regard to:
    • − Mr Narayan's historical support of the defendant;
    • − the capacity of Mr Narayan to do so; and
    • − Mr Narayan's own interest being aligned with the success of the defendant, including when regard is had to the income it receives, the vehicles it owes, Mr Narayan's personal guarantee of the BMW Finance loan and the large director's loan owed to Mr Narayan.
15. Mr Narayan has provided details of his salary, and also details of a property he owes with his wife in Guildford, New South Wales. He deposes to the value of the property, but has not provided a valuation for that property. He has also referred to a current mortgage value over that property.
16. There is no written documentation to verify the statements by Mr Narayan. There is no information of what the mortgage payments are or if he is servicing any other debts. The information that he has provided in his affidavit is not sufficient to be able to conclude that he can pay the debts of the defendant as they fall due.

Section 459S of the Act

1. The defendant seeks leave under s 459S of the Act to oppose the application to wind up the company. Section 459S of the Act provides:

Company may not oppose application on certain grounds

(1) In so far as an application for a company to be wound up in insolvency relies on a failure by the company to comply with a statutory demand, the company may not, without the leave of the Court, oppose the application on a ground:

(a) that the company relied on for the purposes of an application by it for the demand to be set aside; or

(b) that the company could have so relied on, but did not so rely on (whether it made such an application or not).

(2) The Court is not to grant leave under subsection (1) unless it is satisfied that the ground is material to proving that the company is solvent.

1. In Chief Commissioner of Stamp Duties v Paliflex Pty Ltd,[6] Austin J referred to the principles that apply when the Court is considering to grant leave pursuant to s 459S of the Act. His Honour said:

In my opinion the exercise of the discretion to grant leave under s.459S(1) involves three considerations, namely:

(i) a preliminary consideration of the defendant's basis for disputing the debt which was the subject of the demand;

(ii) an examination of the reason why the issue of indebtedness was not raised in an application to set aside the demand, and the reasonableness of the party's conduct at that time; and

(iii) an investigation of whether the dispute about the debt is material to proving that the company is solvent.[7]

1. As to the first factor raised by Austin J, I note that the default judgment has been set aside and the defendant has leave to defend in the Magistrates' Court. There is therefore no need for a preliminary consideration of the defendant's basis for disputing the debt.
2. In relation to the second factor raised by Austin J, the reason why the issue of indebtedness was not raised in an application to set aside the statutory demand, Mr Narayan deposes that he was not aware that the plaintiff allegedly served a statutory demand on 10 February 2025. He did not receive the demand.
3. On 19 February 2025, the following email was sent to Mr Narayan by the plaintiff's accounts department:

I would like to clarify that we have provided ample notice and responded promptly to all of your queries.

The initial final demand letter was issued in October 2024, and the solicitor's demand letter was served in November 2024.

We held off taking further action for a month while awaiting a response from Microsoft, following your direct query with them. However, no response was received from either you or Microsoft, forcing us to bring the matter to court in December 2024.

I have received no demands from your solicitors to date or any statement of claims.

I do not accept your deceptive conduct and unfair terms, bullying tactics and discrimination.

I will be filing the matter with ACCC with evidence to support all claims.

...

1. In response, a further email was sent to Mr Narayan by the plaintiff's accounts department which stated:

We would like to clarify that the statutory demand from our solicitor was issued on 10th February 2025. Please find attached file for your reference. The original document has been posted to your address, as per the standard procedure.

If you have not yet received the document, we recommend checking with your local postal service in case of any delays. Please note that we are confident in the legitimacy of our process and our solicitor's actions.

We understand your concern, but we assure you that there is no fraudulent activity involved here. If you have any further questions or need additional information, please do not hesitate to reach out to us.

1. Not only was the statutory demand served on Mr Narayan, but he also was informed of that statutory demand and a further copy of that statutory demand was sent to Mr Narayan.
2. Mr Narayan as to his failure to see the demand deposes that:

On 28 February 2025 the same Accounts representative for the Plaintiff sent an email with an attachment. The email was not marked as urgent and included no explanation. I did not open or read the attachment at the time. It was only in May 2025 after engaging my current solicitors and carrying out a search of the Synnex folder that I discovered this message. Given my vision issues and the sheer volume of irrelevant messages in the Synnex folder, it had gone unnoticed.

1. It was incumbent of the director of the defendant to make sure that correspondence received by the defendant was received and considered. He has not in my view provided an adequate reason why the issue of indebtedness was not raised in an application to set aside the demand.
2. In these circumstances, I will not grant the leave under s 459S of the Act.
3. In relation to the third factor raised by Austin J, whether the debt is material to proving that the defendant is solvent, the defendant has not been able to demonstrate that the defendant is solvent or that this debt is material to proving solvency.

1. Pursuant to s 467(1) of the Act, the Court has a discretion to not wind up a company even though it is presumed to be insolvent.
2. Section 467(1) of the Act provides:

(1) Subject to subsection (2) and section 467A, on hearing a winding up application the Court may:

(a) dismiss the application with or without costs, even if a ground has been proved on which the Court may order the company to be wound up on the application; or

(b) adjourn the hearing conditionally or unconditionally; or

(c) make any interim or other order that it thinks fit.

There is a general principle that a winding up order will not be made on a debt which is bona fide in dispute, provided that the dispute is based on some substantial grounds: Mibor Investments Pty Ltd v Commonwealth Bank of Australia [1994] Vic Rp 61; [1994] 2 VR 290 at 293. [8]

1. In Re Brooklyn Park & Co Pty Ltd[9] Matthews J dismissed an appeal from an order made by an Associate Justice. The Associate Justice dismissed an application to wind up a company where the basis of the plaintiff's status as a creditor of the defendant had been removed. A default judgment upon which the statutory demand was based was set aside.
2. Here a default judgment has also been set aside and the defendant has been given leave to defend. The judgment entered into against the defendant was not irregular as was the case in Re Brooklyn Park & Co Pty Ltd however that does not in my view distinguish Re Brooklyn Park & Co Pty Ltd.
3. The matters that are relevant to my discretion include:
   • − the fact that the judgment debt has been set aside and the defendant has been given leave to defend;
   • − the quantum of the debt is not large;
   • − as in Ace Contractors the defendant is to be treated as being insolvent by reason of the statutory presumption created by s 459C. Apart from this presumption, the evidence does not demonstrate that the respondent is insolvent. The defendant has failed, on the evidence before the Court, to discharge the onus that rests upon it due to the fact that it did not provide an audited account; and
   • − there are no supporting creditors and there do not appear to be any other creditors.
4. In the exercise of my discretion, I will adjourn this application for 14 days so that the defendant can pay the sum of $13,124.35 into the Court pending the decision in the Magistrates' Court. If the defendant does not pay that sum into Court within the 14 days, I will order that the company be wound up.

[1] [2019] VSCA 215.

[3] [1999] FCA 728.

[5] As at 30 June 2025, the balance sheet referred to alone by Mr Narayan to the defendant of $436,289.

[6] (1999) 47 NSWLR 382; [1999] NSWSC 15.

[9] [2024] VSC 611.