In the matter of DSHE Holdings Limited [2021] NSWSC 608

In the matter of DSHE Holdings Limited [2021] NSWSC 608

The Court refused to grant orders for immediate deregistration under s 90-15 IPS, determining that s 90-15 does not empower the Court to modify the operation of deregistration provisions in the Corporations Act. Orders were made for termination of the deed under s 445D(1)(g), with modified winding up and reporting obligations under s 447A to facilitate compliance and finalisation of the administration. Remuneration of the administrator was fixed based on evidence, and further remuneration for liquidation was declined due to lack of evidence and the administrator’s undertaking. Payments to ASIC for missing creditors will proceed after winding up in accordance with statutory provisions.

Parties
First Plaintiff: Jason Preston in his capacity as liquidator of DSHE Holdings Ltd (receivers & managers appointed) (in liquidation) ACN 166 237 841; Fourth Plaintiff/first Applicant: Katherine Sozou in her capacity as deed administrator of Black Range Metals (Resources) Pty Ltd (subject to deed of company arrangement) ACN 076 987 329
Jurisdiction
Australia
Judgment Date
28 May 2021
Procedural Posture
Corporations Deed of Company Arrangement / Interlocutory Application for Orders Regarding Deregistration, Termination of Deed, Reporting, and Remuneration
Outcome
Orders partially granted and partially refused
Legal Topics
Deed of Company Arrangement, External Administration, Winding Up, Remuneration of Administrator, Deregistration of Company, Powers of Court Under S 90 15 IPS, Reporting Requirements Under IPR
Corporations Law Insolvency Law Deed of Company Arrangement External Administration Winding Up Remuneration of Administrator Deregistration of Company Powers of Court Under S 90 15 IPS +1 more

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Parties

Jason Preston in his capacity as liquidator of DSHE Holdings Ltd (receivers & managers appointed) (in liquidation) ACN 166 237 841

First Plaintiff

Katherine Sozou in her capacity as deed administrator of Black Range Metals (Resources) Pty Ltd (subject to deed of company arrangement) ACN 076 987 329

Fourth Plaintiff/first Applicant

Procedural Posture

Corporations Deed of Company Arrangement / Interlocutory Application for Orders Regarding Deregistration, Termination of Deed, Reporting, and Remuneration

Legal Issues

  1. 1 Whether the Court has power under s 90-15 of the Insolvency Practice Schedule to facilitate immediate deregistration of the company without intervening winding up
  2. 2 Whether to make orders terminating the deed of company arrangement under s 445D of the Corporations Act
  3. 3 Whether to modify reporting requirements under s 447A of the Corporations Act and IPR

Ratio Decidendi

The Court refused to grant orders for immediate deregistration under s 90-15 IPS, determining that s 90-15 does not empower the Court to modify the operation of deregistration provisions in the Corporations Act. Orders were made for termination of the deed under s 445D(1)(g), with modified winding up and reporting obligations under s 447A to facilitate compliance and finalisation of the administration. Remuneration of the administrator was fixed based on evidence, and further remuneration for liquidation was declined due to lack of evidence and the administrator’s undertaking. Payments to ASIC for missing creditors will proceed after winding up in accordance with statutory provisions.

Court Disposition

Orders partially granted and partially refused

Orders

  • Prayers 1, 2, and 3 of interlocutory process dismissed (no immediate deregistration)
  • Order terminating deed of company arrangement under s 445D(1)(g)