Emerton Pty Ltd v Referral Marketing Services Pty Ltd & ors [2009] NSWSC 738

Emerton Pty Ltd v Referral Marketing Services Pty Ltd & ors [2009] NSWSC 738

The Court's power to appoint a new liquidator under s 502 did not arise as the current liquidators remained in office; however, it was for the better conduct of the liquidation that the current liquidators be removed pursuant to s 503 and replaced immediately without interruption. The plaintiff's nominee was not appointed to avoid the appearance of acceding to creditor pressure; instead, the second defendant's nominee, Brian Hugh Allen, was appointed as liquidator.

Parties
Plaintiff: Emerton Pty Ltd; First Defendant: Referral Marketing Services Pty Ltd; Second Defendant: Kari Lea Allen; Third Defendant: Andrew Hugh Jenner Wily; Fourth Defendant: David Anthony Hurst
Jurisdiction
Australia
Judgment Date
11 June 2009
Procedural Posture
Corporations External Administration Winding Up / Interlocutory Application for Removal and Replacement of Liquidator
Outcome
Second defendant's nominee appointed as liquidator. No order as to costs.
Legal Topics
Winding Up, Liquidator Removal and Appointment, Powers Under Corporations Act 2001 Ss 502, 503
Corporations Law Insolvency Winding Up Liquidator Removal and Appointment Powers Under Corporations Act 2001 Ss 502, 503

Case Brief

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Parties

Emerton Pty Ltd

Plaintiff

Referral Marketing Services Pty Ltd

First Defendant

Kari Lea Allen

Second Defendant

Andrew Hugh Jenner Wily

Third Defendant

David Anthony Hurst

Fourth Defendant

Procedural Posture

Corporations External Administration Winding Up / Interlocutory Application for Removal and Replacement of Liquidator

Legal Issues

  1. 1 Whether the Court has power under Corporations Act 2001 s 502 to appoint a new liquidator where current liquidators have not yet ceased to act
  2. 2 Whether removal of current liquidators is in the best interest of the liquidation under s 503
  3. 3 Whether the Court should appoint the plaintiff's nominee as liquidator, or the second defendant's nominee

Ratio Decidendi

The Court's power to appoint a new liquidator under s 502 did not arise as the current liquidators remained in office; however, it was for the better conduct of the liquidation that the current liquidators be removed pursuant to s 503 and replaced immediately without interruption. The plaintiff's nominee was not appointed to avoid the appearance of acceding to creditor pressure; instead, the second defendant's nominee, Brian Hugh Allen, was appointed as liquidator.

Court Disposition

Second defendant's nominee appointed as liquidator. No order as to costs.

Orders

  • David Hurst and Andrew Hugh Jenner Wily be removed as liquidators of Referral Marketing Services Pty Ltd (in liq).
  • Brian Hugh Allen be appointed as liquidator of Referral Marketing Services Pty Ltd (in liq).