In the matter of Neil Robert Cussen as liquidator Total Hoarding Supplies Pty Ltd (in liquidation) [2019] NSWSC 887

In the matter of Neil Robert Cussen as liquidator Total Hoarding Supplies Pty Ltd (in liquidation) [2019] NSWSC 887

The Court approved the Deed of Funding and Indemnity and solicitors' retainer nunc pro tunc because their terms were proper, did not unduly extend the liquidation, and showed no error of law, bad faith or impropriety. The Court approved the compromise of the IGS debt because, although the settlement would not generate any or any substantial further return to creditors, the liquidator acted on experienced counsel's advice, rationally assessed legal and recovery risks, obtained the support of the largest creditor, faced no opposition from Revenue NSW, and the settlement was not ill-advised or inappropriate in the circumstances.

Jurisdiction
Australia
Judgment Date
17 April 2019
Procedural Posture
Corporations Winding Up Application by Liquidator for Approvals Under Ss 477(2 A) and 477(2 B) of the Corporations Act 2001 (cth) and Non Publication Orders / Interlocutory Process Filed 11 April 2019; Ex Tempore Judgment on 17 April 2019
Outcome
Orders made approving entry into the Deed of Funding and Indemnity and solicitors' retainer agreement nunc pro tunc, approving compromise of a debt, making non-publication orders for confidential affidavits, and returning exhibits.
Legal Topics
['liquidator Powers' 'approval of Funding Agreement Nunc Pro Tunc' "approval of Solicitors' Retainer Agreement Nunc Pro Tunc" 'compromise of Debt' 'court Suppression and Non Publication Orders']
['corporations' 'insolvency' 'civil Procedure'] ['liquidator Powers' 'approval of Funding Agreement Nunc Pro Tunc' "approval of Solicitors' Retainer Agreement Nunc Pro Tunc" 'compromise of Debt' 'court Suppression and Non Publication Orders']

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Procedural Posture

Corporations Winding Up Application by Liquidator for Approvals Under Ss 477(2 A) and 477(2 B) of the Corporations Act 2001 (cth) and Non Publication Orders / Interlocutory Process Filed 11 April 2019; Ex Tempore Judgment on 17 April 2019

Legal Issues

  1. 1 ["Whether approval should be granted under s 477(2B) of the Corporations Act 2001 (Cth) for the liquidator's entry nunc pro tunc into a Deed of Funding and Indemnity." "Whether approval should be granted under s 477(2B) of the Corporations Act 2001 (Cth) for the liquidator's entry nunc pro tunc into a solicitors' retainer agreement." 'Whether approval should be granted under s 477(2A) of the Corporations Act 2001 (Cth) for compromise of a debt owed to Total Hoarding Supplies Pty Ltd (in liquidation) by Integrated Growth Solutions Pty Ltd as part of a settlement.' 'Whether non-publication orders should be made under the Court Suppression and Non-publication Orders Act 2010 (NSW) for confidential affidavits and an exhibit.']

Ratio Decidendi

The Court approved the Deed of Funding and Indemnity and solicitors' retainer nunc pro tunc because their terms were proper, did not unduly extend the liquidation, and showed no error of law, bad faith or impropriety. The Court approved the compromise of the IGS debt because, although the settlement would not generate any or any substantial further return to creditors, the liquidator acted on experienced counsel's advice, rationally assessed legal and recovery risks, obtained the support of the largest creditor, faced no opposition from Revenue NSW, and the settlement was not ill-advised or inappropriate in the circumstances.

Court Disposition

Orders made approving entry into the Deed of Funding and Indemnity and solicitors' retainer agreement nunc pro tunc, approving compromise of a debt, making non-publication orders for confidential affidavits, and returning exhibits.

Orders

  • ['Approval granted under s 477(2B) of the Corporations Act 2001 (Cth) for entry nunc pro tunc into the Deed of Funding and Indemnity.' "Approval granted under s 477(2B) of the Corporations Act 2001 (Cth) for entry nunc pro tunc into the solicitors' retainer agreement." 'Approval granted under s 477(2A) of the...