4. There was no effective service of originating process. Six affidavits of service were, in substance, false

Judd J rejected all arguments advanced by the applicant that there had been defective service of documents on the company. Different considerations pertain to service of the statutory demand and service of the originating process. I go first to service of the statutory demand.

A process server deposed, by affidavit sworn 14 November 2008 that he had served the company personally at the 'front reception, Bundall Accounting Services, Unit 1, 100 Bundall Road, Bundall, Queensland' on 30 October 2008'. That address was the registered office of the company. But an extract from ASIC records shows that Bundall Accounting Services Pty Ltd ceased to have its principal place of business at that address on 13 December 2001, and its registered office there on 3 January 2002. The record further shows that Bundall's principal place of business from 14 December 2001 was an address in Southport, Queensland, which address became its registered office on 4 January 2002. It shows also that in October 2008 Bundall, which had by then become Tallai Investment Group Pty Ltd, had its registered office and principal place of business at 21 Wallaby Drive, Mudgeeraba, Queensland.

I should refer also to exhibit EV4 to the applicant's affidavit sworn 24 April 2009. Although relevantly in hearsay form, it shows that the occupier of 1/100 Bundall Road, Bundall for the 12 months up to and including 23 February 2009 was Westpac Banking Corporation.

It is important that a party wishing to serve a document on a company be able to rely upon details of the company's registered office in records maintained by ASIC. It is a company's obligation to maintain a satisfactory address. If things were otherwise, as Santow J stated in FP Leonard Advertising Pty Ltd v KD Travel Service Pty Ltd[7] -

... the evident legislative intent ... to provide an official public address for service would be defeated if a company could flout its obligations by simply failing to notify any change of that office. A resourceful and dishonest company could thus easily avoid service of documents and escape unwanted litigation by simply, 'decamping' from the registered office without leaving a trail.

There is more than one way in which a company might fail to ensure that ASIC records of its registered office were up to date. It might simply move address and fail to keep ASIC informed - whether deliberately or carelessly. Again, as may well have occurred here, its directors might fail to keep themselves informed as to the registered office of the company's accountant, that address being in turn the registered office of the company.

Consistently with what Santow J said in FP Leonard, in any of those circumstances service of a document able to be served on the registered office of a company will be good service if service is averred - provided that the essential facts stated in the averment are not impugned.

So, if a person avers that service of a document has been effected by post at the registered office of a company as stated in ASIC records, and if there is nothing which clearly demonstrates that the intended service has missed its target - return of an envelope containing the document with a notation 'return to sender', or 'not known at this address' would of itself be, I think, merely equivocal[8] - service will be good under s 109X (1)(a) of the Corporations Act notwithstanding that the premises to which the letter was addressed are no longer in fact the registered office of the company.[9] It will be same if the envelope containing the document is not addressed to the company's registered office but the company, through an individual who is its directing mind and will, becomes aware of the document.[10] But service will fail if, on analysis, there was not service at the registered office at all;[11] whilst the time of service may be affected if there was not service at the registered office at the outset.[12]

Then, so far as personal service of a document at a company's registered office is concerned, averment that there was such service should also be decisive in the ordinary case. But if the averment is itself successfully impugned, it may be impossible to conclude that the document was served at the particular address at all. In such a case, service will fail not because the document was served at premises which are the company's registered office according to ASIC records although they are no longer in fact occupied by the company, but for want of satisfaction that the document was served at the premises at all.

This must be a rare situation, but in my opinion the evidence shows that it was here the case; or at least, I consider, Mainfreight did not positively establish service, which was its obligation. Although the process server averred personal service, and although he was not called for cross-examination at any time, in which circumstances his averment should ordinarily be accepted, it is plain that he could not have served the company personally at the front reception of Bundall Accounting Services, Unit 1, 100 Bundall Road, Bundall. At that address, had he attended, he would have found a Westpac Branch. There are really two alternatives: either that the process server did not attend the premises at all; or that he did attend and purported to effect service on Bundall Accounting Services at the front desk of a bank. The latter alternative is possible, but as the evidence stands I consider it to be less likely than the first alternative. It is unnecessary, I add, to positively conclude that the process server swore a false affidavit. Rather, Mainfreight carried an onus to prove service; and in my opinion it did not discharge it.

In the event, the principle that service of a document at a company's registered office will be good even if in fact it is no longer the company's office does not provide an answer to the applicant's contention that the statutory demand was not served. The opinion of the Associate judge and Judd J to the contrary was built on the foundation that the demand was in fact served at the particular premises. But I respectfully consider that the foundation was not established.

Before turning to the consequences of that conclusion, I should consider service of the originating process.

Out of abundance of caution, the originating process was served, according to affidavits of service, at three addresses in addition to the company's registered office. One of those addresses was, according to the applicant's affidavit sworn 13 March 2009, the company's 'correct address'; and one of them was the address which the applicant gives as her address in her supporting affidavit.[13] As I observed earlier, the applicant swore that she had received none of those documents. Gardiner AsJ noted that none were returned to sender. The applicant's account beggars belief.

Section 109X does not prescribe an exclusive code for service of documents on a company. Sub-section (6) makes that clear. The section has been described as facultative.[14] In addition to the modes of service authorised by s 109X, service may also be effected by a method provided for by s 28A of the Acts Interpretation Act 1901 (Cth). By the latter section, a document may be served on a body corporate by 'sending it, by prepaid post to, the head office, a registered office or a principal office of the body corporate'.

In this case the originating process was served by post - according to an affidavit of service which was only challenged, indirectly, by the applicant's improbable account that the document was not received - at the company's principal place of business. That was good service.

Additionally, the originating process was served by post - according to an affidavit of service which was again only challenged, indirectly, by the applicant's improbable account that the document had not been received - at the residential address of the applicant and her husband, who were the only directors of the company. Further, they were the major shareholders, and the applicant was its secretary. Were it necessary to so decide, it ought be concluded, in my opinion that the originating process sufficiently came to the notice of the company.[15]

It is, in the circumstances, unnecessary to reach any conclusion whether service of originating process by post at the registered office of the company was good service.

The question which next arises is whether the discretionary decision below can be successfully impugned on the footing that it assumed - wrongly in my respectful opinion - good service of the statutory demand. In my opinion, even if that issue could be regarded as justifying grant of leave, challenge to the decision below should be rejected on appeal (and, as I said earlier, the Court as presently constituted was appointed to hear the appeal in the event that leave was granted.)

A long line of authorities establishes the framework within which an application to terminate or stay a winding-up will be considered. In Re Warbler Pty Ltd,[16] Master Lee QC of the Queensland Supreme Court said this:

1. The granting of a stay is a discretionary matter, and there is a clear onus on the applicant to make out a positive case for a stay: Re Calgary & Edmonton Land Co Ltd (in liq) [1975] 1 WLR 355 at 358-9 per Megarry J. see also s243 of the Act.

2. There must be service of notice of the application for a stay on all creditors and contributories, and proof of this: Re South Barrule Slate Quarry Co (1869) LR 8 Eq 688; Re Bank of Queensland Ltd (1870) 2 QSCR 113.

3. The nature and extent of the creditors must be shown, and whether or not all debts have been[17] discharged: Krextile Holdings Pty Ltd v Widdows [1974] VicRp 83; [1974] VR 689; Re Data Homes Pty Ltd [1972] 2 NSWLR 22 at 26.

4. The attitude of creditors, contributories and the liquidator is a relevant consideration: Re Calgary and Edmonton Land Co Ltd, supra.

5. The current trading position and general solvency of the company should be demonstrated. Solvency is of significance when a stay of proceedings in the winding up is sought: Re a Private Company [1935] NZLR 120; Re Mascot Home Furnishers Pty Ltd [1970] VicRp 78; [1970] VR 593 at 598.

6. If there has been non-compliance by directors with their statutory duties as to the giving of information or furnishing a statement of affairs, a full explanation of the reasons and circumstances should be given: Re Telescriptor Syndicate Ltd [1963] 2 Ch 174.

7. The general background and circumstances which led to the winding up order should be explained: Krextile Holdings Pty Ltd v Widdows, supra.

8. The nature of the business carried on by the company should be demonstrated, and whether or not the conduct of the company was in any way contrary to 'commercial morality' or the 'public interest': Krextile Holdings Pty Ltd v Widdows, supra; Re Data Homes Pty Ltd, supra.

This list has been often cited. But, as Master Lee himself stated, it was not intended to be exhaustive, and should not be regarded as a series of rigid principles.[18] Nor does it follow that all items on the list carry equal weight. Solvency or otherwise of the company will loom large where the company was wound up because of inability to pay its debts as they fell due. Thus, in Anderson v Palmer,[19] Barrett J said:

In a case such as this where the company was wound up because of inability to pay its debts as they fell due, the whole focus has moved to a system of administration presided over by the liquidator in the interests of creditors, with the interests of members relegated to a subordinate position. It cannot be expected that restoration of control of the company's destiny to its shareholders and directors (or, in this case, its sole shareholder and director) will be allowed by the court in the exercise of its discretion unless it can be seen that the debts of the existing creditors have been or will be paid and that there is a sufficient degree of additional financial strength and stability to promote confidence in the company's ability to continue without any appreciable risk of reverting to liquidation. It would not be an appropriate or prudent exercise of the court's discretion to re-launch a company which, while for the moment technically solvent, was in such a border line position that it might well succumb again to compulsory winding up in the short term. As Street J said in Re Data Homes Pty Ltd [1971] 1 NSWLR 338, the court will not exercise its discretions in a way which has 'the consequence of permitting an insolvent company to go forth again into the community'. The same applies to a company which is technically solvent but likely to become insolvent.[20]

The importance of an applicant demonstrating the solvency of a company, and of the Court having regard to the public interest - and to the interrelated issue of commercial morality - has often been emphasised. In recent times, Hammerschlag J said this in Gematech Pty Ltd v Bardi Investments Pty Ltd:[21]

[24] The approach to be taken by the Court to applications such as the present, and the factors to which the Court may and should have regard, have been the subject of consideration in the authorities: see Re Telescriptor Syndicate Ltd [1903] 2 Ch 174; Re Mascot Home Furnishers Pty Ltd [1970] VicRp 78; [1970] VR 593; Re Data Homes Pty Ltd [1972] 2 NSWLR 22; Re Warbler Pty Ltd (1982) 6 ACLR 526; Dubolo Pty Ltd v Codrington Investment Corporation Pty (1998) 26 ACSR 723; Re Intag International Ltd (in Liq); Westpac Banking Corp v Intag International Ltd [1999] NSWSC 645; Mercy & Sons Pty Ltd v Wanari Pty Ltd [2000] NSWSC 756; (2000) 35 ACSR 70; Anderson v Palmer [2002] NSWSC 192; Re Nardell Coal Corporation Pty Ltd [2004] NSWSC 281; (2004) 49 ACSR 110; Deputy Commissioner of Taxation v Biosolids Management Pty Ltd [2004] NSWSC 272; Metledge v Bambakit Pty Ltd (in liq) [2005] NSWSC 160; McConnochie v Lopez [2006] WASC 206; Deputy Commissioner of Taxation v Giumar Pty Ltd (in liq) [2006] FCA 101; Re The King & I Pty Ltd [2007] FCA 2085.

[25] Relevantly, for present purposes, two things are clear.

[26] Firstly, the solvency of the Company is to be demonstrated by the applicants who bear the onus to do so by leading the 'fullest and best' evidence of the company's financial position: Commonwealth Bank of Australia v Begonia (1993) 11 ACSR 609. Proper verification of assets and liabilities is critical to rebut the presumption of insolvency. Unaudited accounts and unverified claims of ownership or valuation are not ordinarily probative of insolvency: Expile Pty Ltd v Jabb's Excavations Pty Ltd (2003) 45 ACSR 711.

[27] In QBE Workers' Compensation Pty Ltd v P Russell Enterprises Pty Ltd [2005] NSWSC 1128 at [26] White J restated the correct approach as follows:

... the Court is unlikely to be persuaded to act on the evidence of a single director/shareholder without external confirmation. That confirmation is typically obtained either from the liquidator of the company, if he has carried out sufficient investigations so as to put himself in a position to express an informed opinion, or from the evidence of an external accountant.

[28] Secondly, in considering the application, the Court is to have regard not merely to the interests of creditors but to the public interest, including whether granting the order would be detrimental to commercial morality: Re Telescriptor Syndicate Ltd; Re Mascot Home Furnishers Pty Ltd; Re Data Homes Pty Ltd; Re Warbler Pty Ltd.

[29] In the context of public interest and commercial morality Buckley J Re Telescriptor Syndicate Ltd required to be satisfied that the trading operations of the company had been 'fair and above board' and that there was not 'an ugly side to the picture', see also Krextile Holdings Pty Ltd v Widdows [1974] VicRp 83; [1974] VR 689 at 694.

[30] However, the concepts of commercial morality and public interest are not narrow.

[31] In Re Data Homes Pty Ltd (which concerned the equivalent section in the Companies Act 1961 to s 482) at 26-27 Mason JA said:

'But it should not be assumed that there is any sharp dividing line between considerations which are detrimental to commercial morality and those which are opposed to the public interest. They clearly overlap. Nor should it be assumed, as the appellant would have it, that each is a narrow concept for in truth they are designed to give expression to the very broad discretion which s 243 confers upon the court.

There is as little reason for confining considerations of commercial morality to the investigation of misconduct in the affairs of the company as there is for restricting the public interest to the pecuniary interests of existing and future creditors ...'[22]

I should next mention Brolrik Pty Ltd v Sambah Holdings Pty Ltd.[23] There, Barrett J observed that the proper avenue for raising issues about the genuineness of the debt claimed by the party moving for the winding-up is an attempt to have the statutory demand set aside.[24] According to his Honour, it was not in point in a s 482 application that the appropriate step had not been taken because of administrative error by the company's solicitor.[25]

That takes me to Double Bay Newspapers Pty Ltd & Ors v The Fitness Lounge Pty Ltd.[26] There, Double Bay mistakenly obtained the order for the winding-up of Fitness Lounge in the absence of the latter through no fault of its own, and in breach of an agreement between the two companies with respect to the debt upon which the application to wind-up was founded. Double Bay, having realised its mistake, was itself the applicant in an application brought under s 482, and also relying upon an Rule 36.16 of the Uniform Civil Procedure Rules. What was sought was that by some means the winding-up be brought to an end.

On the hearing of the matter, the applicant abandoned reliance upon s 482. White J observed[27] that there would have been difficulties had such reliance been pressed because it was 'well established that on an application under that section the Court will not terminate a winding-up unless it is satisfied as to the company's solvency - even where there has been an irregularity in obtaining the winding-up order'.

So, in deciding that the winding-up order should be set aside - not that the winding-up should be terminated or stayed - his Honour acted in reliance on rule 36.16(2)(b) of the Uniform Civil Procedure Rules. He held that the non-appearance of Fitness Lounge on the hearing of the winding-up application was a fundamental irregularity in the particular circumstances of the case. There was jurisdiction to set aside a default or ex parte judgment when the absence of a party was due to no fault of its part. At the heart of his Honour's reasoning was the proposition that it is a fundamental principle of natural justice that a person against whom a claim is made must be given a reasonable opportunity of appearing and presenting its case.

His Honour gave some consideration to whether the order should be set aside if it was clear that the affected company was insolvent. Strictly, he did not have to consider that question. As the evidence stood, he held it could neither be concluded that the company was solvent, nor the contrary.

Double Bay does not stand as authority for the proposition that, on a s 482 application, want of service of the statutory demand which founded the winding-up application provides a basis for exercising the discretion so as to re-launch an insolvent company. It addressed a very different issue.

There are large differences between Double Bay and the present case:

First, the company had notice of the originating process. Had it appeared on the hearing of the winding-up application, it is highly unlikely that it would have been shut out from attempting to impugn the statutory demand, and thus from attacking the presumption flowing from s 459C(2)(a) of the Corporations Act. It is improbable that the Court would not have granted leave to the company to oppose the application under s 459S, assuming that leave was necessary.[28]

Second, in this case the only application before the Court is the application brought under s 482.[29] There is power under the Rules to set aside an order made on an application when notice was given to a party but the party did not attend. See r 46.08(2)(a). There is also power to set aside a judgment or order made at trial in the absence of a party. See r 49.02(2). Still further, the court has an inherent power to set aside a judgment or order made in the absence of a party. But even if the applicant had sought to set the winding-up order aside,[30] I consider that she must have failed. Ordinarily, to succeed, an applicant must show some reason why he or she did not attend. In the present case, it can be surmised that the applicant would say that she was not served with originating process. That should not be accepted. Further, the applicant would be unable to show, in my judgment, any prospect that a different order would have been made had she been in attendance.

Third, the applicant's constant assertion in the s 482 application has been that the debt the subject of the statutory demand was not owed. She has adduced such evidence as she can on the point; and it has been shown to be, in my opinion, insubstantial. So, albeit in a different context, the applicant has unsuccessfully argued the very matter to which the statutory presumption attached, and upon which the company might have sought to rely in opposing the winding-up application.

Fourth, the evidence (see later in these reasons) is overwhelming that Sator was insolvent when the winding-up order was made.

Fifth, the evidence adduced on the present application, having regard to considerations of commercial morality and the public interest, tells strongly against the winding-up being terminated or stayed.

This point is reached: for the reasons which I have stated, the one issue which arises out of the applicant's complaints about service does not yield the result that the present appeal should be considered other than by having regard to the matters which ordinarily tell on a s 482 application - matters to which both Gardiner As J and Judd J adverted.

5. The liquidators were appointed by Mainfreight's solicitor, not the Court

There is no substance to this argument. All that the solicitor did was obtain the liquidators' consent to appointment.

6. The liquidators and Mainfreight's solicitor are guilty of dishonest and illegal conduct

The main allegations raised by the applicant are that the liquidators were given all the records that the company had, yet demanded more; and that the liquidators have retained stock which belongs to the applicant's son.

With respect to the first of those matters, the liquidators' report of 27 February 2009 reveals a story which is very different to that averred by the applicant, and it does so in detail rather than by way of sweeping generalisation. I consider also that the admitted request by the liquidators for 'Books that we never ever had' does not tell in the appellant's favour. It is unlikely that the liquidators would have done more than request conventional business records and books of account.

As to the stock which the liquidators are now holding, it can be said that there is a dispute as to ownership. Perhaps the son's position will be vindicated. Perhaps not. The liquidators are not to be criticised for adopting a cautious approach, particularly when the applicant has been far from helpful and when the company's records are far from complete.

In oral submissions, the applicant complained that Mainfreight's solicitor misled the Court on 27 February 2009 by asserting that she had agreed to withdraw the proceedings which she had commenced. She was, of course, present on that day. Accepting, as was not in issue, that the solicitor said such a thing, no harm was in fact done to her interests because she denied, and the Court evidently accepted her denial, that there had been any agreement.

This is not to say, I add, that the solicitor misled the Court. We were shown correspondence between the solicitor and past solicitors for the applicant in which the former asserted that there had been an agreement between them of the kind communicated to the Court on 27 February 2009, and in which the applicant's past solicitors denied any such agreement. At worst for Mainfreight's solicitor, what he told the Court on 27 February 2009 seems likely to have been based upon a mistaken understanding.

In the event, so far as it may be relevant, there is no argument of substance that either the liquidators or the respondent's solicitor have acted improperly or illegally.

Orally, the applicant conceded that a liquidator could instruct solicitors, or appoint a real estate agent, or a manager to the company. But she argued, as I understood it, that what a liquidator cannot do is to delegate any function to an employee of a company or partnership of which the liquidator is himself an employee or partner. She offered no explanation why that should be so; and I consider that the supposed distinction does not exist.

Another point should be made. If the supposed distinction did exist, and if the liquidators had made use of prohibited persons to do some work in the liquidation, it would not follow that this would provide a basis for setting aside or staying the winding-up order.

8. The winding-up proceeding was wrongly transferred

There is nothing to this contention. Efthim AsJ simply adjourned the application which the company in form - but the applicant in substance - had first commenced; and on the return day another Associate Judge dealt with it.

9. The company had suffered colossal damages from the illegal actions of unscrupulous entities, and has an outstanding claim in the High Court for damages exceeding $6 million

As I understood it, before the applicant addressed the Court orally, these contentions related to a series of proceedings which began in the Queensland Supreme Court, extended to the Federal Court, and ended up in the High Court more than once. But in the course of her argument, the applicant agreed, in answer to questions by Beach AJA, that this Court should just ignore the Queensland cases; and that they had nothing to do with the decision of Judd J.

In these somewhat ambiguous circumstances I will say just a little about the Queensland litigation. The first proceeding, it appears, was one commenced in 1998,[31] by which a mortgagee claimed and eventually obtained an order for possession of a Queensland property owned by the applicant and her husband, and in which some kind of experimental activities had been conducted by Sator.

Later on, the applicant, her husband, and 'Gold Coast Barramundi Pty Ltd trading as Sator Australia' brought a proceeding against a number of defendants, including the mortgagee, seeking recovery of possession and damages of $6,266,000 for loss of income. It ended in judgment for the first five of the six defendants, on the footing that the statement of claim was 'entirely misconceived and groundless'.[32] An appeal was dismissed.[33] Judgment for the sixth defendant on a like basis was also upheld, the notice of appeal being struck out and the appeal dismissed.[34] Leave to appeal to the High Court against the appellate decisions was refused,[35] it being observed that the applicants' submissions contained 'scandalous and incoherent allegations' which revealed no question of law.

So far as the material before this Court is concerned, whilst the applicant deposes that there is 'a current case in the High Court claiming damages of six millions plus', according to the respondent's researches there is no such claim; and in light of the history which I have recounted, the latter seems the more likely situation. But the applicant stated orally, as I understood it, that what she meant by saying that there was a current case in the High Court was that there was an appeal which had been deemed to be abandoned; it was this appeal which, when restored to the High Court's list, would be the vehicle for the '6 millions plus' claim. But even if some appeal was deemed to be abandoned, and even if it was an appeal to which Sator was a party, there is nothing to suggest that an application to resuscitate the appeal would succeed; or, if it did, that the claim for more than six million dollars would be made out.

So, if indeed the applicant was seeking to show that the company was solvent because it had a good claim for more than $6 million, the attempt was a signal failure.

Paragraph 14 of the applicant's supporting affidavit is opaque. Insofar as it complains that the judge wrongly introduced reference to the Administrative Law Act 1978 (Vic) and Order 56 of Chapter 1 of the Rules, the complaint is unfounded. The applicant had couched her appeal from the orders of Gardiner AsJ in terms of seeking judicial review under the Act and the Rules, and the judge simply clarified her true intent - which, as she agreed, was to appeal against the orders made by the Associate Judge.

Paragraph 14 also seems to complain that the applicant's appeal was heard in a different list in the commercial court to the list to which the Associate Judge was attached. That was a purely administrative matter, and there is nothing to the complaint.

11. Judd J and Gardiner AsJ wrongly awarded costs against the applicant

In my opinion, this contention is not reasonably arguable. Gardiner AsJ concluded that Mrs von Risefer was in substance the applicant for relief under s 482 of the Corporations Act. Had he not so concluded, the application(s) would have failed at the outset. Judd J proceeded upon the same assumption. The applicant was thus able to advance her arguments. They failed, and there was no error in an exercise of discretion which resulted in the losing party paying costs.

12. The applicant's constitutional rights were violated

This contention is without merit. The applicant was heard at every stage before the Associate Judge and Judd J. Insofar as her complaint is that the Magistrates' Court proceeding and the winding-up order were made in the absence of the company, there is no general requirement that all parties to a proceeding be present before an effective order be made. There would be proper complaint if, because service of process was not effected, orders were made in the absence of a defendant. But here, on the evidence before the Associate Judge and the Judge, service was established.

22 I said earlier that the application needed to be considered by reference to the matters which ordinarily govern the determination of a s 482 application - which is what the Associate Judge and Judd J did. So considered, in my opinion, there was plainly no error in the discretionary decision the subject of this appeal. It is only necessary to consider the issues of insolvency, commercial morality and the public interest so to conclude.

23 In my opinion the applicant conspicuously failed to establish the company's solvency:

First, the profit and loss statement upon which she relied did not do so.

Second, the applicant and her husband produced no books of account which would demonstrate solvency. Indeed, what occurred with respect to books of account, when the same were sought by the liquidators, strongly suggests that no proper company records existed.

Third, the liquidators were able to establish that Mainfreight alone was owed more than $34,500. They were unable to establish the existence of assets or income sufficient to meet even that liability.

Fourth, the liquidators were further able to ascertain that the company had not, since its inception in 1997, lodged an income tax return or business activity statement. Its taxation liabilities were unknown. Even on the applicant's account, it appears it is unlikely such liabilities were nil, for according to the applicant the company did have some income at different times. Further, in February 2009 the Australian Taxation Office lodged a proof of debt for failure to lodge an income

tax return for the year ended 30 June 2004. The amount was only

$550. But the letter accompanying the formal proof ominously stated that an amended proof might be lodged 'when the full extent of the liability has been established'; and there was appended a schedule showing defaults back to 1997.

24 I turn to the questions of commercial morality and the public interest. The material before Gardiner AsJ and Judd J showed that the company's affairs had been conducted without any regard for obligations arising under the Corporations Act or the pertinent tax legislation. Not in any order of importance, (1) The company did not inform ASIC of the details of its registered office at any time after late 1991; (2) The company did not provide regular reports of its affairs to ASIC after May 2003; (3) The company had not lodged tax returns or business activity statements at any time after its commencement; (4) The company was not shown to have any proper accounting records; (5) The directors gave the liquidators minimal assistance in the latter's attempts to ascertain the true position of the company.

25 In all, in my opinion, considerations of commercial morality and the public interest in ensuring that an insolvent and badly run company is not relaunched told strongly in favour of the winding-up not being terminated or stayed. Gardiner As J and, importantly for present purposes, Judd J were in my respectful opinion entirely justified in reaching, in substance, that conclusion.

26 I would refuse the application for leave to appeal, with costs.

[1] Vide Corporations Act 2001, ss 459A, 459C(2)(a), 459E, 459F(1) and (2)(b), 459P, 459Q.

[3] Re Warbler Pty Ltd (1982) 6 ACLR 526; Vero Workers Compensation New South Wales Ltd v Ferretti Pty Ltd (in liq) [2006] NSWSC 292; (2006) 57 ACSR 103.

[4] Niemann v Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431, 433 (McInerney J).

[5] King v Lintrose Nominees P/L [2001] VSCA 140; (2001) 4 VR 619, 629, [27] (Callaway JA).

[6] [1936] HCA 40; (1936) 55 CLR 499.

[7] (1993) 12 ACSR 136, 138, (Santow J).

[8] Something more was demonstrated, for instance, in Re Pacific Mobile Phones Ltd [2008] QSC 210; (2008) 26 ACLC 1082 (White J, Supreme Court of Queensland).

[9] The relationship between a company's registered office and 'premises' was illuminated by Barrett J in Polstar Pty Ltd v Agnew [2007] NSWSC 114; [2007] 208 FLR 226, 230-1, [17]-[18].

[11] Polstar, ibid; James v Ash Electrical Services Pty Ltd [2008] NSWSC 1112; (2008) 220 FLR 328 (Barrett J); Re Pacific Mobile Phones Ltd [2008] QSC 210; (2008) 219 FLR 422.

[12] Scope Data Systems Pty Ltd v Goman [2007] NSWSC 278; (2007) 70 NSWLR 176 (White J); Derma Pharmaceuticals Pty Ltd v HSBC Bank Australian Ltd [2005] SASC 48; (2005) 188 FLR 373 (Full Court of Supreme Court of South Australia).

[13] Note also the first sentence of paragraph 6 of that affidavit.

[14] Howship Holdings Pty Ltd v Leslie [1996] NSWSC 314; (1996) 41 NSWLR 542, 544 (Young J); Biotech International Ltd v Peptech Ltd [2000] WASC 120; (2000) 156 FLR 295, 306, [37] (Owen J); Polstar Pty Ltd v Agnew [2007] NSWSC 114; (2007) 208 FLR 226, 230 (Barrett J).

[15] See, Polstar, ibid 232, [24]-[25] and the cases there cited.

[16] (1982) 6 ACLR 526, 533.

[18] Dubolo Pty Ltd v Codrington Investment Corp Pty Ltd (1998) 26 ACSR 723, 725 (Santow J).

[19] [2002] NSWSC 192.

[21] [2008] NSWSC 196.

[23] [2001] NSWSC 1171; (2001) 164 FLR 91.

[26] [2006] NSWSC 226; (2006) 57 ACSR 131.

[28] At least in some cases, it might not be. See, instance, Re Pacific Mobile Homes Ltd [2008] QSC 210; (2008) 219 FLR 422, 429, [25] (White J, Supreme Court of Queensland) and Perpetual Nominees Ltd v Masri Apartments Pty Ltd [2004] NSWSC 551; (2004) 49 ACSR 719, 722-4, [7]-[12] (Austin J).

[29] There is power to set aside an order made in default of appearance - both inherent and under the Rules. As to the latter, see, inter alia, Rules 46.08 and 49.02 of Chapter 1.

[30] Assuming that she, as distinct from the company, could have pursued such an application.

[31] [2000] QSC 164.

[32] [2004] QSC 248.

[33] [2005] QCA 109.

[34] [2005] QCA 136.