In the matter of Equiticorp Australia Limited (In Liquidation) [2011] NSWSC 1368

In the matter of Equiticorp Australia Limited (In Liquidation) [2011] NSWSC 1368

The appointment and tenure of a liquidator are not comprehended by the expression "winding up" in s 601 of the Corporations Law, so filling a vacancy in the office of liquidator is not governed by the continued operation of the Companies (New South Wales) Code or equivalent previous legislation. Each relevant entity is a company within the meaning of the Corporations Act 2001 (Cth), and the Supreme Court is a Court within s 58AA; therefore s 473(7) of the Corporations Act 2001 (Cth) empowers and requires the Court to fill the vacancies by appointing the plaintiffs as liquidators.

Jurisdiction
Australia
Judgment Date
11 November 2011
Procedural Posture
Corporations Winding Up Application Concerning Appointment of Replacement Liquidators / Interlocutory Applications
Outcome
Orders made appointing Joseph David Hayes and Murray Campbell Smith as liquidators of the five companies and providing for costs as expenses of the winding ups.
Legal Topics
['resignation of Liquidator' 'appointment of New Liquidator' 'source of Court Power to Fill Vacancy' 'transitional Operation of Companies (new South Wales) Code, Corporations Law and Corporations Act 2001 (cth)']
['corporations' 'insolvency and Winding Up'] ['resignation of Liquidator' 'appointment of New Liquidator' 'source of Court Power to Fill Vacancy' 'transitional Operation of Companies (new South Wales) Code, Corporations Law and Corporations Act 2001 (cth)']

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Procedural Posture

Corporations Winding Up Application Concerning Appointment of Replacement Liquidators / Interlocutory Applications

Legal Issues

  1. 1 ['Whether the appointment of new liquidators in place of a resigned liquidator is governed by the Companies (New South Wales) Code or the Corporations Act 2001 (Cth).' 'Whether filling a vacancy in the office of liquidator is part of the process of winding up preserved by s 601 of the Corporations Law and s 1408 of the Corporations Act 2001 (Cth).' 'Whether the court is empowered or required by s 473(7) of the Corporations Act 2001 (Cth) to fill the vacancies.']

Ratio Decidendi

The appointment and tenure of a liquidator are not comprehended by the expression "winding up" in s 601 of the Corporations Law, so filling a vacancy in the office of liquidator is not governed by the continued operation of the Companies (New South Wales) Code or equivalent previous legislation. Each relevant entity is a company within the meaning of the Corporations Act 2001 (Cth), and the Supreme Court is a Court within s 58AA; therefore s 473(7) of the Corporations Act 2001 (Cth) empowers and requires the Court to fill the vacancies by appointing the plaintiffs as liquidators.

Court Disposition

Orders made appointing Joseph David Hayes and Murray Campbell Smith as liquidators of the five companies and providing for costs as expenses of the winding ups.

Orders

  • ['Order pursuant to s 473(7) of the Corporations Act 2001 (Cth) that Joseph David Hayes and Murray Campbell Smith each be appointed severally, and both of them be appointed jointly, as liquidators of each of Equiticorp Australia Limited (In Liquidation), Equiticorp Tasman Limited (In Liquidation), Equiticorp...