Hughes v Lopez [2010] FCA 1180

Hughes v Lopez [2010] FCA 1180

Approval under s 471A(1A)(d) of Corporations Act 2001 (Cth) was refused as applicants failed to show sufficient prospects of success in proposed proceedings to set aside winding-up orders, failed to produce evidence of company's solvency, and failed to demonstrate assets would be protected from risks of costs exposure. Delay in application and lack of financial capability to meet possible costs orders also supported refusal.

Parties
First Applicant: Michael Howard Hughes; Second Applicant: Lorelle Hughes; First Respondent: George Aubrey Lopez in his capacity as Liquidator of Asia Pacific Lodging Pty Ltd (ACN 081 780 547) (IN LIQ); Second Respondent: NCF Financial Services Pty Ltd (ACN 128 593 975); Third Respondent: Deputy Commissioner of Taxation
Jurisdiction
Australia
Judgment Date
24 September 2010
Procedural Posture
Corporations Law Application / Final Determination of Interlocutory Application
Outcome
Application dismissed
Legal Topics
Company Liquidation, Directors' Powers, Court Approval for Litigation by Company in Liquidation, Winding Up Orders, Statutory Demand
Corporations Law Company Liquidation Directors' Powers Court Approval for Litigation by Company in Liquidation Winding Up Orders Statutory Demand

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Parties

Michael Howard Hughes

First Applicant

Lorelle Hughes

Second Applicant

George Aubrey Lopez in his capacity as Liquidator of Asia Pacific Lodging Pty Ltd (ACN 081 780 547) (IN LIQ)

First Respondent

NCF Financial Services Pty Ltd (ACN 128 593 975)

Second Respondent

Deputy Commissioner of Taxation

Third Respondent

Procedural Posture

Corporations Law Application / Final Determination of Interlocutory Application

Legal Issues

  1. 1 Whether to grant leave under s 471A(1A)(d) of the Corporations Act 2001 (Cth) to allow directors/shareholders to cause company in liquidation to commence proceedings
  2. 2 Prospects of success for application to set aside winding-up orders
  3. 3 Company's solvency and protection from costs exposure

Ratio Decidendi

Approval under s 471A(1A)(d) of Corporations Act 2001 (Cth) was refused as applicants failed to show sufficient prospects of success in proposed proceedings to set aside winding-up orders, failed to produce evidence of company's solvency, and failed to demonstrate assets would be protected from risks of costs exposure. Delay in application and lack of financial capability to meet possible costs orders also supported refusal.

Court Disposition

Application dismissed

Orders

  • The applicants' application filed on 13 September 2010 is dismissed.
  • The applicants are to pay the costs of the second respondent's and third respondent's costs of the application.