In the matter of Kirby Street (Holding) Pty Limited [2011] NSWSC 1536

In the matter of Kirby Street (Holding) Pty Limited [2011] NSWSC 1536

The court was satisfied that all forty companies carried on a scheme jointly, that some still own choses in action (deed of cross guarantee) used in connection with that scheme, and that pooling would benefit creditors and meet statutory criteria. No material disadvantage to eligible unsecured creditors was identified and the application of s 579E(1)(b)(iv) was met. It was just and equitable to make a pooling order under s 579E for the group.

Parties
Plaintiff: David John Frank Lombe
Jurisdiction
Australia
Judgment Date
14 December 2011
Procedural Posture
Application Under the Corporations Act 2001 (cth) S 579 E(1) / Final Judgment
Outcome
Application granted subject to directions
Legal Topics
Winding Up, Pooling Order, Liquidator's Powers, Creditors, Company Groups
Corporations Law Insolvency Winding Up Pooling Order Liquidator's Powers Creditors Company Groups

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Parties

David John Frank Lombe

Plaintiff

Procedural Posture

Application Under the Corporations Act 2001 (cth) S 579 E(1) / Final Judgment

Legal Issues

  1. 1 Whether forty companies constitute a 'pooled group' for the purposes of s 579E of the Corporations Act 2001 (Cth)
  2. 2 Whether the statutory criteria for pooling are satisfied under s 579E(1) and (12)
  3. 3 Whether it is just and equitable to make a pooling order

Ratio Decidendi

The court was satisfied that all forty companies carried on a scheme jointly, that some still own choses in action (deed of cross guarantee) used in connection with that scheme, and that pooling would benefit creditors and meet statutory criteria. No material disadvantage to eligible unsecured creditors was identified and the application of s 579E(1)(b)(iv) was met. It was just and equitable to make a pooling order under s 579E for the group.

Court Disposition

Application granted subject to directions

Orders

  • Plaintiff liquidator to submit minutes for an order determining that the group of forty companies is a pooled group for the purposes of s 579E of the Corporations Act 2001 (Cth)
  • Additional ancillary orders consistent with the discussion under 'Ancillary orders' to be settled by further submissions