Whittingham re Hunter Valley Gravel Supplies Ltd & Ors [2006] NSWSC 1070

Whittingham re Hunter Valley Gravel Supplies Ltd & Ors [2006] NSWSC 1070

Where all creditors and the sole contributory affected by pooling of winding up assets give active, unanimous, and informed assent, and the pooling proposal is sufficiently articulated and explained, the court may direct that the liquidator is justified in proceeding with pooling, regardless of statutory mechanisms, as no interests remain requiring compelled protection.

Parties
Applicant: Kenneth Michael Whittingham; Company in Liquidation: Hunter Valley Gravel Supplies Pty Ltd; Company in Liquidation: Hunter Valley Stemming Supplies Pty Ltd; Company in Liquidation: Collins Crushing Pty Ltd
Jurisdiction
Australia
Judgment Date
13 October 2006
Procedural Posture
Application by Liquidator for Directions / Final Determination
Outcome
Liquidator justified in proceeding on pooled basis
Legal Topics
Pooling of Assets, Winding Up, Variation of Creditors' Rights, Arrangement With Creditors, Liquidator's Powers
Corporations Law Insolvency Equity Pooling of Assets Winding Up Variation of Creditors' Rights Arrangement With Creditors Liquidator's Powers

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Parties

Kenneth Michael Whittingham

Applicant

Hunter Valley Gravel Supplies Pty Ltd

Company in Liquidation

Hunter Valley Stemming Supplies Pty Ltd

Company in Liquidation

Collins Crushing Pty Ltd

Company in Liquidation

Procedural Posture

Application by Liquidator for Directions / Final Determination

Legal Issues

  1. 1 Whether the liquidator is justified in proceeding with pooling of assets between three related companies
  2. 2 Whether unanimous creditor and contributory assent can vary statutory distribution scheme
  3. 3 Whether court can make directions absent statutory mechanisms where unanimous assent is present

Ratio Decidendi

Where all creditors and the sole contributory affected by pooling of winding up assets give active, unanimous, and informed assent, and the pooling proposal is sufficiently articulated and explained, the court may direct that the liquidator is justified in proceeding with pooling, regardless of statutory mechanisms, as no interests remain requiring compelled protection.

Court Disposition

Liquidator justified in proceeding on pooled basis

Orders

  • Direct the liquidator to combine the property of Collins Crushing Pty Limited, Hunter Valley Gravel Supplies Pty Limited and Hunter Valley Stemming Supplies Pty Limited into a single fund
  • Direct the fund to be distributed in accordance with Part 5.6 Division 6 of the Corporations Act 2001 (Cth) as though the companies and their creditors are a single company in liquidation