In the matter of Aboriginal Community Benefit Fund Pty Ltd (in liq) [2022] NSWSC 1784

In the matter of Aboriginal Community Benefit Fund Pty Ltd (in liq) [2022] NSWSC 1784

The apparent lack of independence of the general purpose liquidator, supported by uncontested evidence and concerns, together with the availability of funding and potential for benefit to creditors, justified the appointment of special purpose liquidators to conduct independent investigations and possible proceedings.

Parties
First Plaintiff: Australian Securities and Investments Commission; Second Plaintiff: Minister for Fair Trading; First Defendant: David Michael Stimpson in his capacity as liquidator of the Second to Eighth Defendants; Second Defendant: The Aboriginal Community Benefit Fund Pty Ltd (in liq); Third Defendant: Aboriginal Community Benefit Fund No 2 Pty Ltd (in liq); Fourth Defendant: ACBF Funeral Plans Pty Ltd (in liq); Fifth Defendant: Community Funeral Plans Pty Ltd (in liq); Sixth Defendant: Youpla Administration Pty Ltd (in liq); Seventh Defendant: Youpla Pty Ltd (in liq); Eighth Defendant: Youpla Group Pty Ltd (in liq)
Jurisdiction
Australia
Judgment Date
23 December 2022
Procedural Posture
Originating Application / Final Orders After Hearing
Outcome
Orders appointing special purpose liquidators made.
Legal Topics
Appointment of Special Purpose Liquidator, Liquidator Independence, Funeral Funds Regulation
Corporations Law Insolvency Equity Appointment of Special Purpose Liquidator Liquidator Independence Funeral Funds Regulation

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Parties

Australian Securities and Investments Commission

First Plaintiff

Minister for Fair Trading

Second Plaintiff

David Michael Stimpson in his capacity as liquidator of the Second to Eighth Defendants

First Defendant

The Aboriginal Community Benefit Fund Pty Ltd (in liq)

Second Defendant

Aboriginal Community Benefit Fund No 2 Pty Ltd (in liq)

Third Defendant

ACBF Funeral Plans Pty Ltd (in liq)

Fourth Defendant

Community Funeral Plans Pty Ltd (in liq)

Fifth Defendant

Youpla Administration Pty Ltd (in liq)

Sixth Defendant

Youpla Pty Ltd (in liq)

Seventh Defendant

Youpla Group Pty Ltd (in liq)

Eighth Defendant

Procedural Posture

Originating Application / Final Orders After Hearing

Legal Issues

  1. 1 Whether special purpose liquidators should be appointed due to concerns regarding apparent independence of the general purpose liquidator
  2. 2 Standing of applicants to seek appointment
  3. 3 Justification and utility for creditors

Ratio Decidendi

The apparent lack of independence of the general purpose liquidator, supported by uncontested evidence and concerns, together with the availability of funding and potential for benefit to creditors, justified the appointment of special purpose liquidators to conduct independent investigations and possible proceedings.

Court Disposition

Orders appointing special purpose liquidators made.

Orders

  • Special purpose liquidators appointed to Aboriginal Community Benefit Fund No 2 Pty Ltd (in liq), Youpla Administration Pty Ltd (in liq), Youpla Pty Ltd (in liq), Youpla Group Pty Ltd (in liq) as sought by ASIC.
  • Special purpose liquidators appointed to The Aboriginal Community Benefit Fund Pty Ltd (in liq), ACBF Funeral Plans Pty Ltd (in liq), Community Funeral Plans Pty Ltd (in liq) as sought by the Minister.