In the matter of EKMM Pty Ltd [2022] NSWSC 1367

In the matter of EKMM Pty Ltd [2022] NSWSC 1367

The evidence established that EKMM Pty Ltd was insolvent, as its liabilities could not be met in full within 12 months without recovery of substantial sums from the directors. The statutory notice requirement for the Form 519 Notification was dispensed with since the delay caused no substantive prejudice. The liquidators were appropriately appointed, nunc pro tunc approval of retainer agreements was warranted, and costs were ordered from the company's property.

Jurisdiction
Australia
Judgment Date
10 October 2022
Procedural Posture
Corporations Application for Orders in Relation to Liquidation / Final Determination of Application
Outcome
All orders as sought by the plaintiffs granted; company to be wound up in insolvency; liquidators appointed; costs from company property.
Legal Topics
['winding Up in Insolvency' 'liquidator Appointment' 'dispensation of Statutory Notice Requirements' 'appointment of Liquidators' 'approval of Liquidator Agreements' 'costs of Liquidation']
['corporations Law' 'insolvency Law' 'equity'] ['winding Up in Insolvency' 'liquidator Appointment' 'dispensation of Statutory Notice Requirements' 'appointment of Liquidators' 'approval of Liquidator Agreements' 'costs of Liquidation']

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Procedural Posture

Corporations Application for Orders in Relation to Liquidation / Final Determination of Application

Legal Issues

  1. 1 ['Whether EKMM Pty Ltd should be wound up in insolvency under s 459A of the Corporations Act 2001' 'Whether the Court should dispense with the statutory notice requirement in s 470(1)(a) under s 467(3)(b)' 'Whether the liquidators should be appointed as joint and several liquidators' 'Whether court approval should be granted nunc pro tunc for entry into retainer agreements pursuant to s 477(2B)' 'Whether costs of the application should be paid out of company property']

Ratio Decidendi

The evidence established that EKMM Pty Ltd was insolvent, as its liabilities could not be met in full within 12 months without recovery of substantial sums from the directors. The statutory notice requirement for the Form 519 Notification was dispensed with since the delay caused no substantive prejudice. The liquidators were appropriately appointed, nunc pro tunc approval of retainer agreements was warranted, and costs were ordered from the company's property.

Court Disposition

All orders as sought by the plaintiffs granted; company to be wound up in insolvency; liquidators appointed; costs from company property.

Orders

  • ['Order pursuant to s 467(3)(b) of the Corporations Act 2001 (Cth) dispensing with the time limit for serving Form 519 Notification under s 470(1)(a).' 'Order under s 459A of the Corporations Act that EKMM Pty Ltd be wound up in insolvency.' 'Order appointing Jonathon Sherwood Keenan and Peter Paul Krejci as joint...