Milan Visnic v Peter Sywak [2012] NSWSC 1284

Milan Visnic v Peter Sywak [2012] NSWSC 1284

Special leave to distribute the surplus was granted because the liquidator's evidence provided sufficient comfort that admitted creditor claims had been paid and any remaining risk would be borne by the liquidator personally; despite misgivings, advertising was dispensed with because the winding up had been on foot for about five years and the liquidator must have detailed knowledge of potential claims; and the surplus attributable to Mr Visnic's shareholding should be paid to his bankruptcy trustee or as that trustee directs rather than directly to persons who may only have charges or other interests in that shareholding.

Jurisdiction
Australia
Judgment Date
03 September 2012
Procedural Posture
Interlocutory Application in the Equity Division Corporations List Concerning External Administration and Special Leave to Distribute Surplus / Application by Interlocutory Process for Special Leave Under (cth) Corporations Act 2001, S 488(2), to Distribute Surplus Funds in Liquidations
Outcome
Leave granted to the liquidator to distribute the surplus; advertisement and Form 551 schedule requirements dispensed with.
Legal Topics
['special Leave to Distribute Surplus' 'liquidation Surplus' 'advertisement of Application' 'contributories' 'form 551']
['corporations' 'external Administration' 'insolvency'] ['special Leave to Distribute Surplus' 'liquidation Surplus' 'advertisement of Application' 'contributories' 'form 551']

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Procedural Posture

Interlocutory Application in the Equity Division Corporations List Concerning External Administration and Special Leave to Distribute Surplus / Application by Interlocutory Process for Special Leave Under (cth) Corporations Act 2001, S 488(2), to Distribute Surplus Funds in Liquidations

Legal Issues

  1. 1 ['Whether special leave should be granted under (Cth) Corporations Act 2001, s 488(2), to distribute surplus funds in the liquidations of Adelos Pty Ltd and Castlove Pty Ltd.' 'Whether the requirement to advertise notice of the application under (NSW) Supreme Court (Corporations) Rules 1999, r 7.9(2), should be dispensed with.' 'Whether the order must have annexed to it a schedule in accordance with Form 551 for the purposes of (Cth) Corporations Regulation 2001, cl. 5.6.71.' "How the surplus attributable to Mr Visnic's shareholding should be distributed."]

Ratio Decidendi

Special leave to distribute the surplus was granted because the liquidator's evidence provided sufficient comfort that admitted creditor claims had been paid and any remaining risk would be borne by the liquidator personally; despite misgivings, advertising was dispensed with because the winding up had been on foot for about five years and the liquidator must have detailed knowledge of potential claims; and the surplus attributable to Mr Visnic's shareholding should be paid to his bankruptcy trustee or as that trustee directs rather than directly to persons who may only have charges or other interests in that shareholding.

Court Disposition

Leave granted to the liquidator to distribute the surplus; advertisement and Form 551 schedule requirements dispensed with.

Orders

  • ['Grant special leave pursuant to (Cth) Corporations Act 2001, s 488(2), to the applicant Michael Gregory Jones to distribute surplus in the liquidation of the second defendant, Adelos Pty Ltd, to Peter Orest Sywak in the sum of $8,311.58 (in addition to the amount already distributed to him) and to or as directed...