Gibbons v LibertyOne [2002] NSWSC 274

Gibbons v LibertyOne [2002] NSWSC 274

The court has power under s 447A to relieve the liquidator from the obligation to convene meetings of members required by s 508(1)(b) where the company is insolvent, shareholders have no prospect of distribution, and the policy is to transfer control to creditors. There is no legislative policy barring such relief.

Jurisdiction
Australia
Judgment Date
08 April 2002
Procedural Posture
Originating Process – Application in Liquidation / Judgment
Outcome
Order granted
Legal Topics
['voluntary Administration' 'winding Up' 'liquidator Duties' 'jurisdiction to Relieve Obligations' 'operation of S 447 a Corporations Act']
['corporations Law' 'equity'] ['voluntary Administration' 'winding Up' 'liquidator Duties' 'jurisdiction to Relieve Obligations' 'operation of S 447 a Corporations Act']

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Procedural Posture

Originating Process – Application in Liquidation / Judgment

Legal Issues

  1. 1 ['Whether the court has power under s 447A to relieve liquidator from obligation to convene meetings of members under s 508(1)(b)' 'Whether discretionary grounds exist to exercise that power']

Ratio Decidendi

The court has power under s 447A to relieve the liquidator from the obligation to convene meetings of members required by s 508(1)(b) where the company is insolvent, shareholders have no prospect of distribution, and the policy is to transfer control to creditors. There is no legislative policy barring such relief.

Court Disposition

Order granted

Orders

  • ["Order pursuant to s 447A of the Corporations Act that Part 5.3A operate in relation to LibertyOne Ltd as if s 446A(2) included the words: 'and (c) to have done so without the necessity to convene any general meeting of the Company pursuant to s 508(1)(b) of this Act.'"]