In the matter of Australian Hotel Acquisition (in liquidation) and Other Companies; In the matter of David John Frank Lombe in his capacity as Liquidator of Australian Hotel Acquisition Pty Ltd (receivers & managers) (in liquidation) and Other Companies [2011] NSWSC 1374

In the matter of Australian Hotel Acquisition (in liquidation) and Other Companies; In the matter of David John Frank Lombe in his capacity as Liquidator of Australian Hotel Acquisition Pty Ltd (receivers & managers) (in liquidation) and Other Companies [2011] NSWSC 1374

The extension application failed because the liquidator had not established sufficient reason for the failure to investigate possible voidable transactions, no particular transaction had been identified, funds had been available in some liquidations for periods before the hearing, and it was not shown to be fair and just to grant a general extension. The pooling application failed because the North Ryde companies and the AHA group did not carry on a joint business or undertaking within s 579E(1)(b)(iv), the relevant hotel properties were no longer owned by the companies, and surplus sale monies were not 'particular property' for the purposes of that provision.

Jurisdiction
Australia
Judgment Date
17 November 2011
Procedural Posture
Corporations Application for Extension of Time to Bring Voidable Transaction Applications Under S 588 Ff(3) of the Corporations Act 2001 and for a Pooling Order Under S 579 E(1) of the Corporations Act 2001 / Principal Judgment on Two Originating Processes Heard Together
Outcome
Extension of time refused; pooling claims dismissed; remaining remuneration and expense claims stood over for further argument.
Legal Topics
['voidable Transactions' 'extension of Time' 'pooling Orders' "liquidators' Remuneration and Expenses" 'joint Venture Companies' 'just and Equitable Discretion']
['corporations Law' 'insolvency' 'equity'] ['voidable Transactions' 'extension of Time' 'pooling Orders' "liquidators' Remuneration and Expenses" 'joint Venture Companies' 'just and Equitable Discretion']

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Procedural Posture

Corporations Application for Extension of Time to Bring Voidable Transaction Applications Under S 588 Ff(3) of the Corporations Act 2001 and for a Pooling Order Under S 579 E(1) of the Corporations Act 2001 / Principal Judgment on Two Originating Processes Heard Together

Legal Issues

  1. 1 ['Whether a general extension of time should be granted under s 588FF(3) of the Corporations Act 2001 for applications concerning voidable transactions where no particular transaction or defendant had been identified.' "Whether lack of funds and the presence of receivers provided a sufficient explanation for the liquidator's delay in investigating possible voidable transactions." 'Whether the seven companies satisfied s 579E(1)(b)(iv) of the Corporations Act 2001 for a pooling order by owning particular property used in connection with a business, scheme or undertaking carried on jointly by the companies.' 'Whether the relevant property had to be presently owned by one or more companies in the group for s 579E(1)(b)(iv) to apply.']

Ratio Decidendi

The extension application failed because the liquidator had not established sufficient reason for the failure to investigate possible voidable transactions, no particular transaction had been identified, funds had been available in some liquidations for periods before the hearing, and it was not shown to be fair and just to grant a general extension. The pooling application failed because the North Ryde companies and the AHA group did not carry on a joint business or undertaking within s 579E(1)(b)(iv), the relevant hotel properties were no longer owned by the companies, and surplus sale monies were not 'particular property' for the purposes of that provision.

Court Disposition

Extension of time refused; pooling claims dismissed; remaining remuneration and expense claims stood over for further argument.

Orders

  • ['In both proceedings 2011/275121 and 2011/335763, order the matters be heard together the evidence in one being evidence in the other so far as relevant.' 'In proceedings 2011/275121, order the originating process be dismissed. The costs of the plaintiff be costs in the winding up of the companies and borne by the...