Corporate advisory firm blames law for stifling $70k winding-up proceedings 

The Supreme Court of NSW Justice Scott Nixon has halted a company’s pursuit of winding-up proceedings against another company, and a statutory demand for over $70,000 for allegedly unpaid financial advice fees, with the judge dismissing grounds for a presumption of insolvency.

Corporate advisory firm Makisu Holdings pursued winding-up orders against software company Able Technology on the basis of a presumption of insolvency on the basis of “Able’s failure to comply with a statutory demand which was served on 10 April 2026 (Statutory Demand)”, the court found.

Unlicensed advisers

In early 2024, Able engaged Makisu for financial advice on the upcoming capital raise.

According to Makisu’s 9 January 2024 statement of work for the engagement, its fees for its advice included a “Success Fee – Revenue Share”, which would be “10 per cent of Gross Revenue proceeds (paid monthly), up to a maximum cap of $300k (+ GST)”.

“On 31 July 2025, Makisu issued its first invoice in respect of a Revenue Share Payment. A further invoice was issued on 8 August 2025,” the court said.

In correspondence with Makisu one month later, Able’s sole director, Josh Suntup, said that “cash flow constraints have prevented revenue share taking place”.

“In hindsight, it was a mistake for me to sign the agreement based on gross revenue,” Suntup said.

The court found that Able had not made any revenue share payments to Makisu, leading it to issue Able a statutory demand claiming that Able owed Makisu $70,541.85 for the “amount due and owing by [Able], pursuant to a written Share Subscription Deed between [Able] and [Makisu] dated 7 March 2024, as invoiced by [Makisu]”.

The court found that at the time, Makisu did not hold an Australian Financial Services Licence (AFSL), which is required to legally carry on a financial services business in Australia.

In August 2026, Able issued a Notice of Rescission to Makisu for the Letter of Engagement and the Share Subscription Deed after discovering this lack of accreditation.

“It had never occurred to [him] that [Makisu] or Mr Rushton may have been required to hold an AFSL or been an Authorised Representative”, and that it was only upon conducting such research that he became “aware of the possibility that they may not have held an AFSL or been an Authorised Representative”, Suntup said in his filed affidavit.

“In circumstances where the debt claimed in the Statutory Demand is said to arise from agreements which Able claims to have rescinded, and where Able’s entitlement to rescind those agreements raises a number of plainly controversial legal and factual issues, Makisu’s status as a creditor of Able is ‘based on disputed or otherwise unclear legal rights and duties’,” the court said.

“Able was able to raise a genuine dispute about the debt claimed in the Statutory Demand and, accordingly, Makisu was not able to establish, in reliance on this debt, that it had standing as a creditor to pursue the winding up application (including on the proposed additional grounds).”

No presumption of insolvency

According to the Corporations Act 2001 (“the Act”), “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”.

“On 1 May 2026, being the last date for compliance with the Statutory Demand, Able appointed restructuring practitioners under s 453B(1) and thereby came under ‘restructuring’ within the meaning of Pt 5.3B. This period of ‘restructuring’ lasted until 9 July 2026, when a restructuring plan proposed by the restructuring practitioners was not accepted by a majority of creditors,” the court found.

The court noted that “a proceeding in a court against the company or in relation to any of its property cannot be begun or proceeded with, except, with the restructuring practitioner’s written consent, or with the leave of the Court and in accordance with such terms (if any) as the Court imposes”.

Makisu asserted that this Act prevented it from making a winding-up application against Able.

Despite Makisu’s claim, the court noted that since Able’s failure to comply with the Statutory Demand occurred more than three months prior to the commencement of the proceedings, Able’s failure could not give rise to any presumption of insolvency.

Thus, the court declined to make a costs order in favour of Makisu due to the timing of the issue of the notice of rescission.

“Makisu filed its winding-up application only one business day after responding to the letter from Able’s solicitors, and thereby knowingly assumed the risk (which eventuated) that a rescission notice might be issued by Able under s 925A of the Act shortly after the Originating Process was filed,” the court said.

Upon consideration of all evidence, Justice Nixon ruled that Makisu failed to establish that it was a creditor, or a prospective or contingent creditor, of Able, dismissing Makisu’s originating process and interlocutory process to rely upon the presumption of insolvency to seek an order that Able be wound up in insolvency, ordering that Makisu pay Able’s costs of the proceedings.

The case citation: In the matter of Able Technology Group Pty Ltd [2026] NSWSC 1283 (20 October 2026).