In the matter of APM Security Plan Sickness & Accident Fund (in liq) [2024] NSWSC 145

In the matter of APM Security Plan Sickness & Accident Fund (in liq) [2024] NSWSC 145

A direction should be given that the liquidator is justified in proceeding on the basis that the 2005 Rules of the Fund apply, and that members of the Fund immediately prior to the May 2012 redundancies are entitled to claim their proper share of Fund assets. A radical exclusion of 73% of members triggered entitlement irrespective of rule provisions, as fairness and reasonableness preclude any implied term denying former members their share.

Jurisdiction
Australia
Judgment Date
19 February 2024
Procedural Posture
Application by Liquidator for Directions / Interlocutory Orders
Outcome
Orders made giving directions to the liquidator; further short minutes to be provided.
Legal Topics
['winding Up' 'liquidator Directions' 'unincorporated Association Dissolution' 'entitlement to Distribution of Fund Assets']
['corporations' 'equity'] ['winding Up' 'liquidator Directions' 'unincorporated Association Dissolution' 'entitlement to Distribution of Fund Assets']

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Procedural Posture

Application by Liquidator for Directions / Interlocutory Orders

Legal Issues

  1. 1 ['Which Rules of the Fund are operative for the winding up and distribution' 'At what point members and former members become entitled to share in the distribution of fund assets']

Ratio Decidendi

A direction should be given that the liquidator is justified in proceeding on the basis that the 2005 Rules of the Fund apply, and that members of the Fund immediately prior to the May 2012 redundancies are entitled to claim their proper share of Fund assets. A radical exclusion of 73% of members triggered entitlement irrespective of rule provisions, as fairness and reasonableness preclude any implied term denying former members their share.

Court Disposition

Orders made giving directions to the liquidator; further short minutes to be provided.

Orders

  • ['Ms Conneely to cease forthwith to be a liquidator of the Fund pursuant to s 90-15 of the Insolvency Practice Schedule (Corporations) 2016.' 'Ms Conneely be removed as a party to these proceedings pursuant to reg 6.29 of the Uniform Civil Procedure Rules 2005 (NSW).' 'Liquidator to bring in within two business days...