City Pacific Ltd (in liquidation) v CityPac Home Loans Pty Ltd, in the matter of CityPac Home Loans Pty Ltd [2009] FCA 1365

City Pacific Ltd (in liquidation) v CityPac Home Loans Pty Ltd, in the matter of CityPac Home Loans Pty Ltd [2009] FCA 1365

The Court was satisfied, despite the financial evidence being not entirely satisfactory, that the evidence of Mr Finucan established the subsidiaries were insolvent; in the case of Grande Pacific Pty Ltd, insolvency was reinforced by the statutory presumption under s 459C because receivers and managers had been appointed under a fixed and floating charge. Although City Pacific Ltd was a chargee over Grande Pacific Pty Ltd and its liquidators were disqualified under s 532(2), the assets were controlled by receivers, so there would be no prejudice in granting leave for those liquidators to act. All prerequisites for winding up were satisfied and, alternatively, it was just and equitable...

Jurisdiction
Australia
Judgment Date
23 October 2009
Procedural Posture
Application for Winding Up of Companies / Final Orders and Reasons for Judgment
Outcome
Leave granted, winding up orders made for eleven companies, and Andrew Hugh Jenner Wily and David Anthony Hurst appointed joint liquidators.
Legal Topics
['winding Up' 'insolvency' 'appointment of Liquidators' 'leave to Act as Liquidator' 'statutory Presumption of Insolvency']
['corporations Law' 'insolvency'] ['winding Up' 'insolvency' 'appointment of Liquidators' 'leave to Act as Liquidator' 'statutory Presumption of Insolvency']

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Procedural Posture

Application for Winding Up of Companies / Final Orders and Reasons for Judgment

Legal Issues

  1. 1 ['Whether leave should be granted to file an amended originating process and to proceed with the winding up application against the defendants.' 'Whether the eleven subsidiaries of City Pacific Ltd were insolvent or should otherwise be wound up on just and equitable grounds.' 'Whether Andrew Hugh Jenner Wily and David Anthony Hurst should be granted leave under s 532 of the Corporations Act 2001 (Cth) to be appointed liquidators of Grande Pacific Pty Ltd despite disqualification arising from City Pacific Ltd being a chargee.' 'Whether Andrew Hugh Jenner Wily and David Anthony Hurst should be appointed joint liquidators of the companies.']

Ratio Decidendi

The Court was satisfied, despite the financial evidence being not entirely satisfactory, that the evidence of Mr Finucan established the subsidiaries were insolvent; in the case of Grande Pacific Pty Ltd, insolvency was reinforced by the statutory presumption under s 459C because receivers and managers had been appointed under a fixed and floating charge. Although City Pacific Ltd was a chargee over Grande Pacific Pty Ltd and its liquidators were disqualified under s 532(2), the assets were controlled by receivers, so there would be no prejudice in granting leave for those liquidators to act. All prerequisites for winding up were satisfied and, alternatively, it was just and equitable...

Court Disposition

Leave granted, winding up orders made for eleven companies, and Andrew Hugh Jenner Wily and David Anthony Hurst appointed joint liquidators.

Orders

  • ['Grants leave to the first plaintiff to file in Court an Amended Originating Process in the form filed in Court on 23 October 2009.' 'Grants leave to the first plaintiff, pursuant to s 459P(2)(b) of the Corporations Act 2001 (Cth), to proceed with the application for winding up against the first, second, third,...