Deputy Commissioner of Taxation v LDT Corp Pty Limited (Administrator Appointed) [2011] FCA 420

Deputy Commissioner of Taxation v LDT Corp Pty Limited (Administrator Appointed) [2011] FCA 420

The application for adjournment was refused because the possibility of creditors receiving any dividend under the proposed deed of company arrangement was found to be no more than a highly speculative possibility, and it was not in the interests of creditors to adjourn the winding up application.

Parties
Plaintiff/respondent: Deputy Commissioner of Taxation; Defendant/applicant: LDT Corp Pty Limited (Administrator Appointed) (ACN 127 171 368)
Jurisdiction
Australia
Judgment Date
29 April 2011
Procedural Posture
Corporations Winding Up Application / Application to Review Registrar's Refusal to Adjourn Winding Up Application
Outcome
application for adjournment dismissed; registrar's orders varied; new liquidator appointed; costs ordered against defendant
Legal Topics
Adjournment of Winding Up Application, Deed of Company Arrangement, Creditors' Interests, Insolvency, Appointment of Liquidator
Corporations Law Adjournment of Winding Up Application Deed of Company Arrangement Creditors' Interests Insolvency Appointment of Liquidator

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Parties

Deputy Commissioner of Taxation

Plaintiff/respondent

LDT Corp Pty Limited (Administrator Appointed) (ACN 127 171 368)

Defendant/applicant

Procedural Posture

Corporations Winding Up Application / Application to Review Registrar's Refusal to Adjourn Winding Up Application

Legal Issues

  1. 1 Whether the hearing of a winding up application should be adjourned under s 440A(2) of the Corporations Act 2001 in the interests of creditors for the company to continue under administration
  2. 2 Whether there is a sufficient prospect of a return to creditors if the administration continues rather than the company being wound up
  3. 3 Whether it is appropriate to appoint a new liquidator in place of the current appointee

Ratio Decidendi

The application for adjournment was refused because the possibility of creditors receiving any dividend under the proposed deed of company arrangement was found to be no more than a highly speculative possibility, and it was not in the interests of creditors to adjourn the winding up application.

Court Disposition

application for adjournment dismissed; registrar's orders varied; new liquidator appointed; costs ordered against defendant

Orders

  • The defendant be granted leave nunc pro tunc to appear in this proceeding other than by a solicitor.
  • The orders made by District Registrar Wall on 8 April 2011 be varied by appointing William James Hamilton as liquidator of the defendant in place of Maxwell Christopher Donnelly.