Spyrou v Thorn, in the matter of IAZ Logistics Pty Ltd [2025] FCA 1685

(a) filing and serving the Interlocutory Process dated 23 December 2025;

(b) conducting the winding up of IAZ Logistics Pty Ltd (in liquidation) (Company) on the basis that:

(i) it holds its interest in the property, assets and undertakings (together the Assets) of the IAZ Logistics Trust ABN 44 957 229 252 (Trust) as a bare trustee; and

(ii) all of the Assets are properly characterised as property which the Company holds as a bare trustee;

(c) conducting the winding up of the Company on the basis that the Liquidators can deal with, hold, apply and/or distribute the Assets in accordance with Parts 5.5 and 5.6 of the Corporations Act 2001 (Cth);

(d) conducting the winding up of the Company on the basis that the Liquidators are entitled to recover and pay their expenses of:

(i) getting in, preserving and realising the Assets;

(ii) distributing the Assets (once realised); and

(iii) conducting the winding up of the Company, including expenses of and incidental to the Originating Process filed on 18 December 2025 and the Interlocutory Process filed on 23 December 2025 in these proceedings, such expenses to be paid in the order of priority specified in section 556(1) of the Corporations Act 2001 (Cth);

(e) conducting the winding up of the Company on the basis that the Liquidators are entitled to recover and pay their remuneration in respect of:

(i) getting in, preserving and realising the Assets;

(ii) distributing the Assets (once realised); and

(iii) conducting the winding up of the Company, including remuneration of and incidental to the Originating Process filed on 18 December 2025 and the Interlocutory Process filed on 23 December 2025 in these proceedings, such remuneration to be paid in the order of priority specified in section 556(1) of the Corporations Act 2001 (Cth);

1. Pursuant to section 90-15 of the IPS, the remuneration of the Liquidators for the period 3 December 2025 to 24 December 2025 be fixed in the sum of $42,393 excluding GST.
2. Pursuant to rule 1.3 of the Federal Court (Corporations) Rules 2000 (Cth), the requirements of rule 9.2 of the Federal Court (Corporations) Rules 2000 (Cth) be dispensed with.
3. Pursuant to section 90-15 of the IPS, the Liquidators are justified in seeking the approval for and payment of their remuneration as liquidators of the Company in accordance with the Corporations Act 2001 (Cth), the Regulations thereunder, the IPS, and the Insolvency Practice Rules (Corporations) 2016.
4. Pursuant to section 81(1) of the Trustee Act 1925 (NSW), the Liquidators be empowered to:

(a) realise the Assets, including to collect debts due and payable to the Company as trustee for the Trust as at the date of the Liquidators' appointment, being 3 December 2025 and debts payable to the Company in its said capacity which fall due for payment in the period after that date;

(b) execute and (as the case may be, lodge) any business activity statements, income tax returns, financial statements and other documents relating to the Trust; and

(c) get in and apply moneys in accordance with order 9 below.

1. Pursuant to section 477(2B) of the Corporations Act 2001 (Cth), approval be granted to the Liquidators nunc pro tunc to enter into the costs agreement with Swaab substantially in the form of the document at pages 55 to 65 of Exhibit NAJD-1 to the affidavit of Nicholas Anthony James Dale sworn on 23 December 2025.
2. Any person who can demonstrate sufficient interest to discharge or vary orders 1 to 6 above has liberty to apply on giving five business days' notice to the Liquidators and to the Duty Judge.
3. By 4pm on 24 December 2025, the plaintiff provide a written unconditional, irrevocable authority and direction to his solicitor, Mr Raymond Roser, of Roser Lawyers, to:

(a) provide a copy of the said authority, to the Liquidators and the Deputy Commissioner of Taxation, by 5 pm on 24 December 2025;

(b) apply, within 7 days, the balance of Roser Lawyers' trust account, being $792,000, to the liquidation bank account in order 9; and

(c) provide, within 7 days, a trust account statement to the Liquidators and the Deputy Commissioner of Taxation demonstrating compliance with order 8(b).

1. On or before 9 January 2026, the Liquidators apply funds in the liquidation bank account relating to the winding up of the Company in the following order of priority and in the following manner:

(a) in payment of the Deputy Commissioner of Taxation's costs in proceedings NSD1866/2025 in the amount of $3,416.36;

(b) in payment of expenses of the winding up of the Company, including legal costs of and incidental to the Interlocutory Process filed on 23 December 2025 and the Originating Process filed on 18 December 2025;

(c) their remuneration fixed in accordance with order 2;

(d) in satisfaction of the claims of creditors of the Company:

(i) shown in Annexure B to the Liquidators' report to creditors dated 18 December 2025 at page 27 to 66 of exhibit DS-2 (subject to the amount to be paid to Vella Civil NSW increasing from $92,119.11 to $110,511.16); and

(ii) arising out of the lodgement of any business activity statements and income tax returns for the Trust which relate to a period ended before the date of these orders.

1. If by 9 January 2026, the Liquidators are unable to comply with:

(a) Order 9(d)(i) because the balance of the liquidation bank account relating to the winding up of the Company is insufficient to enable their compliance with such order; or

(b) Order 9(d)(ii) for any reason

they must notify the plaintiff in writing (and provide a copy to the Deputy Commissioner of Taxation) by 12 January 2026:

(c) If sub-paragraph (a) applies, as to the amounts they have paid to each creditor, the unpaid balance of the claim of any creditor, and the balance of the liquidation bank account; or

(d) If sub-paragraph (b) applies, the amount that remains unpaid, the balance of the liquidation bank account, and the reason for their inability to comply with order 9(d)(ii).

1. If the Liquidators give notice to the plaintiff in accordance with order 10, by 14 January 2026, the plaintiff must pay into the liquidation bank account the amount specified in that notice to enable the Company to:

(a) make the payments required in order 9(d)(i) so as to discharge in full the claim of any creditor in the winding up of the Company; and

(b) satisfy the applicable liability to the Commonwealth of Australia in order 9(d)(ii).

1. Pursuant to section 482(1) of the Corporations Act 2001 (Cth) that the winding up of the Company be terminated.
2. Liberty to apply to the parties and the Deputy Commissioner of Taxation on 3 days' notice to each other and to the Duty Judge.
3. These orders be entered forthwith and that within 7 days:

(a) the plaintiff lodge them with the Australian Securities and Investments Commission; and

(b) the Liquidators circulate these orders to known creditors of the Company.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. The plaintiff is the sole shareholder and director of IAZ Logistics Pty Ltd, which was wound up in insolvency by a Registrar of this Court on 3 December 2025. He has applied for an order pursuant to s 482 of the Corporations Act 2001 (Cth), terminating the winding up of the company.
2. The company was wound up on the application of the Deputy Commissioner of Taxation. The plaintiff was aware that that application had been filed, but was assured by his accountant that there was nothing to worry about and that he did not need to do anything in relation to it. The precise reason why the accountant took that view was not disclosed by the evidence: it is sufficient for present purposes to observe that the case was not put on the basis that the winding up order was obtained through a fundamental irregularity such that it should be set aside ex debito justitiae, with the consequence that it was not necessary for the plaintiff to prove that the company was solvent. Nor was it put that there was some irregularity involved, such that a more flexible approach to proof of solvency might be appropriate. See generally Deputy Commissioner of Taxation v Infomatix Solutions Pty Ltd [2025] FCA 1094 at [27] (Beach J) and the cases there cited by his Honour.
3. The principles in accordance with which applications of this kind are determined are well-known. I summarised them in Blundell, in the matter of Reacon Australia Pty Ltd (in liquidation) [2025] FCA 758 at [10]- [13], and I won't repeat them now.
4. It may be accepted, consistently with the plaintiff's submissions, that many of the factors identified in the cases, to the extent they are relevant here, favour the termination of the winding up. The real issues, it seems to me, are as follows:

(a) whether proper and adequate notice has been given to the company's creditors of the application;

(b) to the extent that it hasn't, what to make of the evidence concerning the attitude of the company's creditors;

(c) the liquidators' attitude to the application; and

(d) most importantly of all, whether it has been satisfactorily proved that the company is, and will be going forward, solvent.

1. At 5:59pm on 18 December 2025, the plaintiff's solicitor emailed the company's creditors, notifying them of the time and date of the hearing of the application, and attaching relevant documents. It follows that the creditors in receipt of that email were provided with two business days' notice of the application.
2. In Hughes, in the matter of Substar Holdings Pty Ltd (in liquidation) (No 2) [2021] FCA 658, McKerracher J said (at [24]) that "[f]ive days is not enough time to permit a creditor to consider its position, particularly ... where the five day period included the weekend". The plaintiff emphasised that, from his perspective, the application was urgent. So much may be accepted. But simply because it is in the plaintiff's personal interest for the winding up to be terminated as quickly as possible does not provide any justification for depriving other persons whose interests may be affected of a proper opportunity to consider their position, and take advice. The way that the plaintiff went about bringing this application meant that the company's creditors were not given a proper opportunity to consider their attitude towards the application.
3. The position is made worse by the fact that, the following day, the plaintiff caused an employee of the company to send an email to those same creditors. The email was sent from the email address of the company's account's department, and in that way purported to have been sent by the company. It would seem that it was sent without the knowledge or consent of the liquidators. It included the following:

We would really appreciate a letter from your company, presented on your company letterhead, stating that you support our application that the winding up of IAZ Logistics Pty Ltd be terminated. We require this for our fight to be successful, sent as soon as possible.

The letter can be brief but please include something along the lines of "We support the application made by IAZ Logistics Pty Ltd made pursuant to s 482(1) of the Corporations Act (cth) that the winding up of IAZ Logistics Pty Limited ACN 646 454 846 be terminated".

Your letter is extremely important as if the application is successful, we will regain control of the company and pay all monies owing to you in full immediately. If the liquidator remains in control of the company, it is likely that you will not be paid in full, often it is not even 50% of the amount you are owed. In fact, we cannot guarantee they will even pay you at all as they pay their costs first then the remaining creditors in the order they deem a priority.

1. To the extent that the email suggested that the present application was being brought by the company, and that it was the company itself (which was at this point in time under the control of the liquidators) that was asking creditors to express their support for the application, that was plainly wrong. It is difficult to know whether that misrepresentation was likely to cause the recipients to believe that the email was sent with the authority and approval of the liquidators.
2. Furthermore, to the extent that that statement may have conveyed to creditors that, unless the winding up was terminated, creditors were likely to receive significantly less than the amounts that they were owed, and may receive nothing at all, the evidence disclosed no basis for such representations. Indeed, the representation might be thought to be at odds with the plaintiff's fundamental contention before me that the company is and has at all times been comfortably solvent.
3. Overall, therefore, I was left with a significant degree of discomfort as to the basis upon which the views of creditors had been sought. They were given insufficient notice, and their attitude was sought to be influenced by a quite misleading and tendentious communication sent at the direction of the plaintiff.
4. In any event, the plaintiff tendered in evidence six statements from entities that were said to be creditors of the company that either consisted of, or included, the statement of support proposed in the email sent on 19 December 2025.
5. Of those six entities, four (Master's Commercial Cleaning Services Pty Ltd, Multispares Ltd, FRP HUB Pty Ltd and Adtrans Hino) were not mentioned anywhere else in the evidence. Upon querying their identity, I was told from the bar table that they were not in fact creditors of the company, but suppliers which had previously done business with it. It is not clear how they came to provide the statements of support that they did. Nor is it clear why in evidence and submissions they were advanced as being creditors who supported the application. In the circumstances, I do not consider that their support is relevant to the determination of the application.
6. The other two (Construct Building Group Pty Ltd and Iconic Haulage Pty Ltd) were identified in the evidence as creditors (and thus to whom the plaintiff's solicitor had sent notice of the application). Construct Building Group is a relatively small creditor, being owed $1,463. The debt owed to Iconic Haulage is more substantial, being $111,279.32. Their support is obviously relevant, albeit the reliance I can place on it is significantly diminished by the circumstances I have already mentioned.
7. The attitude of two other creditors was also communicated to the Court:

(a) The petitioning creditor, the Deputy Commissioner of Taxation, initially said that he neither supported nor opposed the application. His submissions made clear, however, that he would oppose the application unless a regime was ordered that provided for the full and immediate payment of the company's outstanding tax debt upon termination of the winding up.

(b) Another substantial creditor, Vella Civil NSW Pty Ltd, said that it would not oppose the application on two conditions:

(i) First, that the company was solvent; and

(ii) Secondly, that the amount claimed by the company as a debt owing to it ($110,511.16) be paid in full within 30 days of the termination. (I note that the amount that Vella said was owing was greater than that recorded in the company's accounts, but the plaintiff said he agreed, if the winding up was terminated, to cause the company to pay the full amount claimed).

1. Overall, therefore, I do not consider that the evidence demonstrates that the company's creditors positively support the application. Only two creditors expressed unqualified support, but the circumstances in which that support was obtained are so questionable as to render any reliance on it quite unsafe. The two creditors who expressed qualified support are really to be taken as expressing a preference for whatever outcome is likely to most quickly lead to the payment of the debts owed to them. It is clear that, in both cases, they were relying on the Court to form a view as to which outcome would produce that result.
2. Ultimately, however, the seriously defective way in which the plaintiff went about obtaining the views of the company's creditors is not as significant as it might usually be. That is because, as I will explain, the basis upon which the plaintiff seeks the termination of the company's winding up involves an assurance that all current creditors of the company will be paid in full immediately upon the termination of the winding up. In those circumstances, it is difficult to see how any creditor of the company could realistically suffer any prejudice by reason of the making of the order sought: see, e.g., Substar Holdings at [35] (McKerracher J).

1. The liquidators were not able to indicate whether they supported or opposed the application. They were notified of the application on the evening of 18 December 2025 and, unsurprisingly, have not been able to perform an analysis of the company's solvency. Their investigations of the company's affairs are necessarily still in their early stages. The liquidators proposed that the hearing of the application be adjourned to enable them to provide an assessment of the company's financial position. The plaintiff insisted, however, on pressing his application on the basis of the current state of the evidence.
2. In those circumstances, the plaintiff's application proceeded without the benefit of what would ordinarily be an important favourable consideration; namely, the support of the liquidator (or, at least, an informed understanding of the facts as revealed by the liquidator's evidence). I have given anxious consideration to the fact that I have been deprived of this perspective.

1. At the end of the day, on applications like this, the most important matter will usually be whether the plaintiff has demonstrated that the company is solvent, and that it can continue without an appreciable risk of returning to liquidation. It is not just the interests of current creditors that matters - the interests of future creditors are relevant too.
2. In relation to the company's existing creditors, the evidence was reasonably consistent that, putting related party loans to one side, the total amount owing by the company is under $1 million (including the liquidators' costs and expenses incurred to date, and the petitioning creditor's costs).
3. In terms of the company's cash, there was a lack of complete clarity around exactly how much was available, but it seems to be uncontroversial that there is at least $200,000.
4. The plaintiff has advanced this application on the basis that he will contribute cash in the amount of $792,000 to the company for the purpose of paying its creditors. He has already paid that sum into the trust account of his lawyers. Furthermore, if there is a shortfall for any reason, he has undertaken to make it up.
5. In the result, I am satisfied that, if I terminated the winding up, the company would have sufficient cash to pay all of its current creditors in full. On the calculations advanced by the plaintiff, there will in fact be a surplus of over $100,000 - to which can be added future payments by the company's existing debtors. According to the company's records there is about $700,000 still owing to the company. On the liquidators' preliminary assessment of likely recoveries, the relevant amount is lower - under $400,000. In any event, I can be comfortably satisfied that all existing creditors of the company will be paid if the winding up is terminated.
6. The real uncertainty lies in the company's future trading prospects.
7. Commonly, in an application of this kind, a plaintiff will adduce evidence in the nature of a forecast concerning its future revenue and liabilities, and their timing, for the purpose of demonstrating that it is sufficiently capitalised and has sufficient prospects to be returned to the commercial mainstream: see, e.g., Deputy Commissioner of Taxation v Jackson Bell Pty Ltd, in the matter of Jackson Bell Pty Ltd [2023] FCA 916 at [31]- [32] (Halley J); Reacon at [16]ff (Owens J). At the very least, it might be expected that the plaintiff would provide an evidentiary foundation from which a rudimentary assessment of that kind might be performed.
8. The plaintiff here did neither of those things.
9. What the plaintiff did was tender two sets of accounts: the first were for the financial year ended 30 June 2025, and the second were for the period 1 July to 3 December 2025. (I note that, strictly, the accounts were for the IAZ Logistics Trust, but it was not in dispute that the business conducted through that trust was the one and only undertaking of the company).
10. As at 30 June 2025, the company's current liabilities exceeded its current assets by $84,818. By 3 December 2025, its current assets exceeded its current liabilities by $266,190. One factor explaining that change was a decrease in trade creditors from $932,389 to $393,446 (with a smaller decrease in trade debtors, from $1,035,229 to $863,349).
11. With only trivial exceptions, however, all of the company's debts as at 3 December 2025 were overdue. Indeed, more than 55% of its outstanding debts were more than three months overdue. Nearly 85% of its debts were at least two months overdue.
12. That position can be compared with the company's debtors as at 3 December 2025. Over 60% of the amounts owing to the company were current or less than one month overdue. There was 20% of the company's debtors whose accounts were more than three months overdue. The evidence did not disclose the reason for this. One possible explanation is that, as the liquidators stated in their first report to creditors, a substantial number of the company's debtors disputed their debts. It is possible, therefore, that the debts that were more than three months overdue (or at least a good portion of them) may have been disputed debts, the prospect of recovery of which may be uncertain.
13. Insofar as the trading activities of the company were concerned, the 30 June 2025 accounts revealed that:

(a) Sales revenue of $6,344,032 was earned;

(b) What were described as "direct costs" incurred in relation to those sales was $1,203,496;

(c) Other expenses totalled $5,598,108;

(d) Other income of $578,488 was recorded, of which the most significant components were $431,835 for fuel tax rebates, and $99,555 for workers compensation reimbursements.

1. Pausing there, the company's total expenses for the year ended 30 June 2025 were $6,801,604, which exceeded its sales revenue by $457,572. It was not clear to me the extent to which the other income of the company was in the nature of a one-off benefit, or whether it would recur (on the basis of the 3 December accounts, only the workers compensation reimbursements appeared to recur). None of the expenses appeared, on their face, to be extraordinary.
2. It was not possible to easily or directly compare that trading picture with that disclosed by the 3 December 2025 accounts. That is because the accounts had not been prepared in a consistent way. For example, expenses included as "direct costs" in December had been included as ordinary "expenses" in the 30 June accounts. The company's accountant gave evidence, the effect of which was that a comparison could only be made by comparing in the aggregate the company's sales revenue and total expenses. With that in mind, the 3 December accounts disclosed (for the roughly five month period to 3 December):

(a) Revenue from trading of $3,178,410;

(b) Direct costs incurred in earning that trading revenue of $1,854,090;

(c) Other operating expenses of $1,120,019; and

(d) Other income of $54,336 (comprised of workers compensation reimbursements of $39,960, unspecified "recoveries" of $11,024 and credit card surcharges of $3,352).

1. In other words, it appeared that the company's total expenses for that period were $2,974,109, which was less than the trading revenue (by a margin of $204,301). To that extent, it might appear that the company's trading performance had improved in the five months before it was placed into liquidation. Whether that was in fact so, however, would depend on a number of factors:

(a) The evidence did not disclose whether the company earned its revenue in a consistent way across the financial year. In other words, in the five months to 3 December 2025, the company earned revenue of an average of over $630,000 per month. In the 12 months to 30 June 2025, its average monthly revenue was just under $530,000 per month. The evidence did not provide any secure basis upon which I might infer whether that difference represented an improvement in sales, or whether it was consistent with historical patterns.

(b) Insofar as expenses are concerned, the company's accountant gave evidence that most of the company's expenses were incurred evenly throughout the year. But he acknowledged that there were some irregular payments (such as insurance, for example). The 30 June accounts showed an average monthly expenditure of over $565,000. The 3 December accounts showed an average monthly expenditure of just under $595,000. Those latter accounts didn't include any insurance expense. And the evidence didn't allow me to understand what other "lumpy" expenses had not yet been incurred. The evidence was, as one would expect, that to some extent higher costs would be incurred in earning higher revenue. But, once again, the evidence just didn't allow any secure conclusions to be drawn in that regard.

1. So, while it is possible that the company's performance had improved from 30 June 2025, but it is hard to be too certain about that. I think I can be satisfied, however, that it had not materially deteriorated.
2. Looking forward, one issue of potential significance is the effect on the company's business of the fact it has been placed into liquidation. The plaintiff gave evidence that, as a result of the company being placed in liquidation, significant customers had left the business. By his estimation, those customers accounted for over $2 million in annual revenue. Once again, because of the cavalier way in which plaintiff approached this application, it is hard to know what to make of this evidence. The communications from customers that were tendered in evidence did not specifically refer to the fact of the liquidation as the reason for them ceasing to use the company's services, so it is possible that they left for other reasons. In one case, I was told that a particular company had ceased to be a customer, only, upon further inquiry by me, to be told that in fact it was a supplier. The plaintiff didn't see fit to adduce evidence beyond what was in effect assertion concerning the extent to which the loss of that revenue (assuming it did not return) would be offset by a reduction in variable costs, or, conversely, the extent to which it would need to be made up to maintain profitability in light of fixed costs.
3. The plaintiff's accountant did give evidence that there was, as might be expected, a relationship between the earning of revenue and the incurring of expenses. My own sense of the business operated by the company, and review of the nature of the expenses recorded in its accounts, suggests that that is indeed likely. Just what the future financial performance of the company looks like, though, must be accepted to be shrouded in some real uncertainty.
4. Nevertheless, the plaintiff pointed to five years of successful trading by the company. I don't think too much can be made of that, given the position that the company found itself in, but it does seem generally to have operated within the bounds of solvency. Of considerable comfort, however, is the fact that the plaintiff will have contributed nearly $800,000 to the company, which, along with existing cash reserves, will be sufficient to clear the company's existing debts. It will then be left with an amount of somewhere around half a million dollars (from any surplus from existing reserves, plus future receipts from existing debtors) or possibly more, to provide a buffer going forward.
5. In those circumstances, I am, just, persuaded that the interests of future creditors of the company would be sufficiently protected if I were to order the termination of the winding up. That does not mean that I consider that the company is barely solvent. Rather it means that, because of the slender evidence chosen to be adduced by the plaintiff, I am barely persuaded that the company will be solvent in its foreseeable trading future.
6. The plaintiff took a significant risk by choosing to prioritise the urgent hearing of his application over the proper and careful preparation and presentation of it. That is not a course to be encouraged.

1. For these reasons, I am satisfied that it is appropriate to order that the winding up of the company be terminated. That should only be done, however, on the basis of a regime that properly ensures that all creditors can be, and are, paid the full amount of their debts as soon as possible.
2. A variety of other issues also presented themselves. Some related to the fact that, as I have already mentioned, the business was operated by a trust of which the company was trustee (and the consequences of that fact for the conduct of the liquidation). There were also other procedural or mechanical issues that needed to be attended to.
3. The plaintiff and the liquidators were able to agree on the form of orders that should be made, in the event I determined it was appropriate to terminate the winding up. The Commissioner proposed a slight variation to those orders. The intent behind both sets of orders was the same. I am satisfied that it is appropriate to make orders which reflect aspects of each proposal. The Commissioner has also indicated that he seeks an order in relation to his costs of this application. I will hear argument on that now.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Owens.