In the matter of A C N 002 408 040 (in liquidation) [2013] NSWSC 470

In the matter of A C N 002 408 040 (in liquidation) [2013] NSWSC 470

Henry Davis York was an interested party because it sought to preserve a seriously arguable claim that could be defeated or require reinstatement if the Company were deregistered. An order tied to disposal of future proceedings would not specify a date for s 509(6), but a fixed date would. The beneficial purpose of preserving Henry Davis York's claim outweighed the limited and mitigated prejudice to the liquidator, so the Court exercised its discretion to order deregistration on 18 December 2014.

Jurisdiction
Australia
Judgment Date
16 April 2013
Procedural Posture
Corporations Winding Up Application Under S 509(6) of the Corporations Act 2001 (cth) / Interlocutory Application
Outcome
Application granted; ASIC ordered to deregister the Company on 18 December 2014.
Legal Topics
['deregistration of Company in Liquidation' 'interested Party Under S 509(6)' 'specified Date for Deregistration' 'leave to Commence Insolvent Trading Proceedings']
['corporations' 'insolvency' 'winding Up'] ['deregistration of Company in Liquidation' 'interested Party Under S 509(6)' 'specified Date for Deregistration' 'leave to Commence Insolvent Trading Proceedings']

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Procedural Posture

Corporations Winding Up Application Under S 509(6) of the Corporations Act 2001 (cth) / Interlocutory Application

Legal Issues

  1. 1 ['Whether Henry Davis York was an interested party for the purposes of s 509(6) of the Corporations Act 2001 (Cth).' 'Whether an order for deregistration within a period after disposal of an application or proceedings would be an order for deregistration on a specified date for the purposes of s 509(6).' "Whether the Court should exercise its discretion to defer deregistration having regard to Henry Davis York's proposed claim and the liquidator's position."]

Ratio Decidendi

Henry Davis York was an interested party because it sought to preserve a seriously arguable claim that could be defeated or require reinstatement if the Company were deregistered. An order tied to disposal of future proceedings would not specify a date for s 509(6), but a fixed date would. The beneficial purpose of preserving Henry Davis York's claim outweighed the limited and mitigated prejudice to the liquidator, so the Court exercised its discretion to order deregistration on 18 December 2014.

Court Disposition

Application granted; ASIC ordered to deregister the Company on 18 December 2014.

Orders

  • ['Pursuant to s 509(6) of the Corporations Act 2001 (Cth), the Australian Securities & Investments Commission ("ASIC") deregister ACN 002 408 040 Pty Limited (in liquidation) on 18 December 2014.' 'The plaintiff is to notify ASIC within two days of the date of these orders.' 'Liberty to apply to any interested...