Macquarie Bank Ltd v TM Investments Pty Ltd [2005] NSWSC 608

Macquarie Bank Ltd v TM Investments Pty Ltd [2005] NSWSC 608

Macquarie Bank Ltd had creditor standing because the evidence showed payments of commissions in respect of transactions that were not genuine, supporting claims to recover the commissions as money had and received. The third and fourth defendants were insolvent or incapable of resuming trading, their businesses depended on investment advisers who had been banned for life, and their governance permitted involvement in fabricated or highly irregular transactions, so it was just and equitable to wind them up. The second defendant's deregistration prevented Macquarie from pursuing its claim and possible indirect recoveries through claims by the company against its principals; Macquarie was...

Jurisdiction
Australia
Judgment Date
23 June 2005
Procedural Posture
Corporations Winding Up Application / Final Judgment on Originating Process Seeking Winding Up Orders and Reinstatement of Deregistered Company
Outcome
Winding up orders made for the third and fourth defendants; reinstatement and winding up orders made for the second defendant; advertising requirement dispensed with.
Legal Topics
['winding Up on Just and Equitable Ground' 'creditor Standing' 'reinstatement of Deregistered Company' 'part 5.3 a Administration' 'fabricated Transactions' 'financial Advisers Banned by Asic']
['corporations Law' 'insolvency'] ['winding Up on Just and Equitable Ground' 'creditor Standing' 'reinstatement of Deregistered Company' 'part 5.3 a Administration' 'fabricated Transactions' 'financial Advisers Banned by Asic']

Case Brief

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Procedural Posture

Corporations Winding Up Application / Final Judgment on Originating Process Seeking Winding Up Orders and Reinstatement of Deregistered Company

Legal Issues

  1. 1 ['Whether Macquarie Bank Ltd was a creditor with standing under s.462(2) of the Corporations Act 2001 (Cth) to seek winding up orders against the second, third and fourth defendants.' 'Whether it was just and equitable under s.461(1)(k) of the Corporations Act 2001 (Cth) that the third and fourth defendants be wound up.' 'Whether Macquarie Bank Ltd was a person aggrieved by deregistration of the second defendant and whether reinstatement under s.601AH(2) was just.' 'Whether the reinstated second defendant should be wound up on the just and equitable ground.']

Ratio Decidendi

Macquarie Bank Ltd had creditor standing because the evidence showed payments of commissions in respect of transactions that were not genuine, supporting claims to recover the commissions as money had and received. The third and fourth defendants were insolvent or incapable of resuming trading, their businesses depended on investment advisers who had been banned for life, and their governance permitted involvement in fabricated or highly irregular transactions, so it was just and equitable to wind them up. The second defendant's deregistration prevented Macquarie from pursuing its claim and possible indirect recoveries through claims by the company against its principals; Macquarie was...

Court Disposition

Winding up orders made for the third and fourth defendants; reinstatement and winding up orders made for the second defendant; advertising requirement dispensed with.

Orders

  • ['Capital Investments Group (Australia) Pty Ltd be wound up.' 'Progressive Investments Security Pty Ltd be wound up.' 'ASIC reinstate the registration of Progressive Securities Pty Ltd.' 'Progressive Securities Pty Ltd be wound up after reinstatement.' 'The advertising requirement be dispensed with.' 'Orders made in...