Plaintiff v JDAH ENTERPRISES PTY LTD

1. The Applicant has filed and relies upon the following materials:

(a) affidavits of Hanna Johnny Dahdah sworn 11 February 2026 and 5 March 2026;

(b) affidavit of Arun John sworn 11 February 2026;

(c) affidavit of Danny Didone sworn 18 February 2026;

(d) circular to creditors dated 17 February 2026;[1]

(e) an email from Rogers Reidy dated 13 March 2026;[2] and

(f) a screenshot of withdrawal dated 13 March 2026.[3]

1. The following background facts have been drawn from the affidavits filed by the plaintiff, Aussie Pods Pty Ltd (Plaintiff), and the Applicant. These are my findings of fact.
2. On 20 October 2022, the Company was incorporated with the Applicant as sole director, secretary and shareholder.
3. The Company operated in the concreting business.
4. Between April 2025 and 21 January 2026, Arun John (Mr John), of Peregrine Accountants, was the external accountant for the Company.
5. Mr John has deposed that upon gaining access to the Company's MYOB accounting file, he ascertained that the Company's accounts had not been reconciled by the previous accountants for a significant period of time. The Applicant has deposed that, throughout 2025, Peregrine Accountants undertook steps to update and rectify the Company's financial and tax documents.
6. Since Peregrin Accountants were engaged, they 'updated and lodged' both the 2024 income tax return and the BAS lodgements up to 30 June 2025. They continue to work to ensure that accounting records are accurate, compliant and maintained on a timely basis. BAS statements for the periods ending 30 September 2025 and 31 December 2025 have been prepared. Mr John has deposed that 'once the above documents are lodged, the Company will be up to date with all tax lodgements, including GST and BAS statements'.
7. On 28 August 2025, the Plaintiff issued a statutory demand addressed to the Company in respect of debts totalling $53,784.24, being 'the amount of unpaid costs owed to the Creditor by the Company and reflected in 21 invoices issued between 7 November 2024 and 20 December 2024' (Statutory Demand).
8. On 29 August 2025, the Statutory Demand was posted to the Company, by way of express post, to its registered office, c/- OTM Accountants, 144 Middle Street, Hadfield VIC 3046. The Australia Post lodgement receipt records that the envelope was delivered to the registered office on 1 September 2025.
9. On 7 November 2025, the Plaintiff applied, by way of Originating Process, to wind up the Company in insolvency under the provisions of the Act.
10. On 21 January 2026, Gitsham JR ordered that the Company be wound up in insolvency under the provisions of the Act and that Brodie Hilet be appointed as Liquidator for the purposes of the winding up. There was no appearance on behalf of the Company. There was an appearance on behalf of a supporting creditor.
11. On 22 January 2026, Peter McCraw, from the office of the Liquidator, wrote to the Applicant, advising that the Company had been wound up.
12. Sometime after 21 January 2026, the Applicant engaged Dario Dal' Pozzo, business consultant, to assist with implementing necessary business controls and procedures.
13. On 11 February 2026, the Applicant filed the Interlocutory Process.

The Court may set aside or vary an order which affects a person where the application for the order -

(a) was made on notice to that person, but the person did not attend the hearing of the application; or

(b) was not made on notice to that person.

1. In George Ward Steel Pty Ltd v Kizkot Pty Ltd,[4] Hodgson J said that an order for the setting aside of a winding up order will normally be made if six conditions were satisfied:

In my view, if an order winding up a company is made in the absence of the defendant company, and an application is brought promptly by the company, with notice being given to the liquidator, to the plaintiff and to any creditor who appeared at the hearing; and if the evidence shows an explanation for the non-appearance at the hearing and indicates solvency of the company; and if there is consent to setting aside, or at least non-opposition; and if the liquidator indicates that nothing in his investigations to date shows a reason for the company to be stopped from trading, then the court will normally set aside the order.

1. In Deputy Commissioner of Taxation v Annesley Plant Hire Pty Ltd (Annesley),[5] Finkelstein J held that Hodgson J's reference to 'solvency' should not be read as requiring an applicant to prove solvency:

It has been argued that this passage means that the company (or a person with standing to make the application on the company's behalf) must show that the company is solvent: ie that it would be able to defeat the application for winding up. For my part, I do not read the passage as going that far. The only requirement that Hodgson J imposed is that there be some evidence which 'indicates' solvency, and this is a far cry from 'proof' of solvency.

1. His Honour held that the consent or non-opposition of the liquidator is a relevant, but not decisive, consideration. While a liquidator is under a duty of impartiality in dealing with interested parties, they should inform the Court if investigations show some reason why the liquidation should continue.
2. The decision in Annesley has been followed in a number of subsequent cases, for example Re Day & Night On-line Transport Pty Ltd[6] and In the matter of News Emporium Pty Limited (in liq).[7]
3. In Workers Compensation Nominal Insurer v Detailed Flooring Pty Ltd,[8] Barret J held that:

The mere fact that the defendant was absent and took no part in the proceedings is, of itself, not sufficient to warrant the exercise of the discretion to set aside a winding up order. Exercise of the discretion will be appropriate only if some additional factor makes it unjust for the ordinary outcome of the litigation process to stand.

1. In Deputy Commissioner of Taxation, in the mater of WA Beard Pty Ltd v WA Beard Pty Ltd,[9] Lee J noted that the discretion to vary or set aside a judgment under r 39.05(a) of the Federal Court Rules 2011 (Cth) (the Federal Court equivalent of the rule under consideration here) was not confined and, like all broad discretions, was required to be exercised judicially.

1. The circumstances of the application are that the Plaintiff had been paid the debt owing to it, plus costs, and the Liquidator's remuneration and expenses have been paid. Neither of those persons opposed the relief sought in the Originating Process. Further, no other creditor has sought to appear and oppose the relief sought.

1. The general background and circumstances which led to the winding up order have been explained in the Dahdah Affidavit.
2. Mr Dahdah's evidence is that the Company did not receive notice of the Statutory Demand or Originating Process because it was sent to the address of the Company's former accountants, OTM Accountants. Mr Dahdah says that those accountants did not change the registered office pursuant to instructions given in May and July 2023.
3. While not a complete explanation, I am satisfied the Company's explanation for the making of the winding up order is a sufficient one for the purposes of this application.

1. I am satisfied that the Applicant is not delayed in bringing this application having regard to the time at which he became aware of the winding up order and the time it took for him to gather the necessary information to issue proceedings.

Nature and extent of creditors and whether debts discharged

1. The Applicant relies on the following documents to show the nature and extent of creditors:

(a) Unpaid bill reports dated 2 February 2026;

(b) Receivables reconciliation with tax report dated 2 February 2026;

(c) Financial statements for the year ended 30 June 2025; and

(d) Financial statements for the period 1 July 2025 to 31 December 2025.

1. The unpaid bill reports show that the Company has total creditors of $611,761.74, of which $297 are 0-30 days outstanding, $252,993.57 of which are 31-60 days outstanding, $258,958.44 which are 61-90 days outstanding, and $99,512.73 which are 90+ days outstanding.
2. The receivables reconciliations report shows that the Company has total receivables of $821,606.32, the majority of which would appear to be in the 0-60 day period.
3. While the outstanding creditor amounts are significant, they are less significant when considered in the context of, and as a percentage of total sales and total expenses in FY25. I also note that they are significantly less than the outstanding receivables.

Attitude of creditors, contributories and liquidator

1. The attitude of creditors, contributories and the Liquidator is as follows:

(a) The Liquidator's position is that he neither consents to nor opposes the application. His remuneration and expenses have been paid;

(b) The Plaintiff does not oppose the application;

(c) Creditors have been notified of the application before the Court in the Liquidator's circular to creditors dated 17 February 2026. Further, the supporting creditor who appeared at the hearing on 21 January 2026 was given notice by email of this application. No creditor, apart from the Plaintiff, appeared; and

(d) The Applicant is the sole shareholder, holding 100 fully paid ordinary shares in the Company. He brings the application.

1. I turn then to the question of the solvency of the Company.
2. Mr John has deposed to a belief, based on the information available to him, including a review of the financial records of the Company, that it is solvent. He notes that the Company has some outstanding lodgements, but is of the view that the Company is able to meet its obligations as and when they fall due and continue to operate on a solvent basis.
3. The draft financial statements for the period 1 July 2025 to 31 December 2025 record the following:

(a) Total income of $5,131,205.57;

(b) Total expenses of $4,806,403.14;

(c) Total profit of $324,802.43;

(d) Total current assets of $875,532.64;

(e) Total non-current assets of $810,482.70;

(f) Total assets of $1,686,015.34;

(g) Total current liabilities of $671,487.32;

(h) Total non-current liabilities of $212,049.52;

(i) Total liabilities of $883,536.84;

(j) Net assets of $802,478.50; and

(k) Total assets of $715,420.99.

1. Mr John's opinion would appear to be supported by the draft financial statements for the period 1 July 2025 to 31 December 2025. I note in particular that total current assets exceed the total current liabilities and that the Company is profitable.
2. While the material relied upon by the Applicant falls short of proving solvency, I accept the Applicant's submission that it sufficiently 'indicates' solvency for the purposes of the application before me. Or to put it another way, I am satisfied the Plaintiff has established that the Company is arguably solvent.

1. The Liquidator does not oppose the application and has not raised any matters concerning the delinquency of the director or matters going to 'commercial morality' or the 'public interest'. I note the Applicant has deposed that he intends to file two outstanding BAS statements to bring the Company's tax lodgements up to date.

1. Having regard to all of the matters set out above, I am satisfied that it is appropriate to make orders setting aside the winding up order.

1. In the premises, it is appropriate to make orders pursuant to r 46.08 of the Rules setting aside the winding up order. I will make orders in terms of paragraph 2 of the Interlocutory Process.

[4] (1989) 15 ACLR 464.

[5] [2010] FCA 755.

[6] [2018] NSWSC 796, [9]-[13].

[7] [2025] NSWSC 615.

[8] [2010] NSWSC 1056; (2010) 80 ACSR 1, [22].

[9] [2017] FCA 964, [5].