Bradshaw, John Warwick v Consolidated Development Pty Ltd (in liq) [1997] FCA 842

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 3170 of 1997

in the matter of: consolidated development pty limited

(in liquidation)

BETWEEN: JOHN WARWICK BRADSHAW

Applicant

AND: CONSOLIDATED DEVELOPMENT PTY LIMITED

(IN LIQUIDATION)

Respondent

JUDGE(S): EMMETT J

DATE: 15 august 1997

PLACE: SYDNEY

EX TEMPORE REASONS FOR JUDGMENT HIS HONOUR: In this matter an application has been made under section 482 of the Corporations Law for an order terminating the winding up of Consolidated Development Pty Limited. That company was incorporated in 1956 and acquired land on the Kurnell peninsula in New South Wales. The evidence before me indicates that at the time of the winding up, which was by special resolution of the members of the company, its shareholders were divided into two groups being Thomas Essington Breen and Breen Peninsula Holdings Pty Limited on the one hand and HCL Pty Limited (formerly known as Hooker-Rex Pty Limited) on the other. Each group held 12,000 ordinary shares of $2 each. It seems that the company was formed as a joint venture vehicle but on 21 December 1965 a deed was entered into between various parties, including the then shareholders of the company, whereby the parties to the agreement undertook to cause the capital of the company to be reduced to the intent that all the shareholding in the company of HCL Pty Limited (then known as Hooker-Rex Pty Limited) be cancelled and that the capital so cancelled be returned by the transfer in specie or at the direction of that shareholder of certain of the land owned by the company. However, the accounts of the company as at the years ended 30 June 1995 and 30 June 1996 contain a note stating that during the year ended 30 June 1995 certain assets of the company were transferred to "AHL interests" by which I understand companies related to HCL Pty Limited, "in consideration for the buy back of shares held by them". The accounts show that the issued capital was then 12,000 ordinary shares of $2 each amounting to $24,000. That note suggests that the intent of the deed was given effect to sometime during the year ended 30 June 1995. However, I am informed on behalf of the present applicant, the liquidator of the company, that notwithstanding that note, the members of the company continue to be as I have said previously, the Breen Group on the one hand and HCL on the other. I have before me evidence which satisfies me that consent has effectively been given on behalf of the Breen interests comprising Thomas Essington Breen and Breen Peninsula Holdings Pty Limited and on behalf of HCL. Accordingly, while there may be some residual doubt as to who the members might be, it appears that anybody who on the evidence before me could conceivably be a member of the company has consented to the order which is now sought. The evidence satisfies me that there is no prospect that the order sought would be prejudicial to creditors of the company. The accounts as at 30 June 1996 indicate total shareholders' equity of some $838,209 after deduction from total assets of liabilities in the sum of $8,617. In the circumstances I am satisfied that it is appropriate that an order be made under section 482(1) of the Corporations Law. Accordingly I order that the winding up of the company be terminated on 15 August 1997. I certify that this and the preceding page are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate: Date: 15 August 1997 Solicitor for the Applicant: Clayton Utz

Date of Hearing: 15 August 1997

Date of Judgment: 15 August 1997