In the matter of Habibi Waverton Pty Ltd (in liquidation) (administrator appointed) [2021] NSWSC 1443

In the matter of Habibi Waverton Pty Ltd (in liquidation) (administrator appointed) [2021] NSWSC 1443

Leave to transfer shares under s 444GA is granted and s 444GA is modified under s 447A to apply to voluntary administrators because the shares have no residual value, the transfer does not unfairly prejudice the member, and the relief advances the objects of Part 5.3A by preserving the business and maximising returns to creditors. An order for costs is warranted against the interested party due to substantial opposition prolonging the hearing and needing to preserve assets for creditors.

Jurisdiction
Australia
Judgment Date
18 October 2021
Procedural Posture
Corporations Procedural Application / Ex Tempore Judgment on Application to Modify Statutory Requirements and Grant Leave for Compulsory Share Transfer
Outcome
Application granted; orders made as sought by plaintiff.
Legal Topics
['deeds of Company Arrangement' 'voluntary Administration' 'compulsory Transfer of Shares' 'section 447 a Modification' 'shareholder Dispute' 'costs Orders (corporations List)']
['corporations' 'insolvency'] ['deeds of Company Arrangement' 'voluntary Administration' 'compulsory Transfer of Shares' 'section 447 a Modification' 'shareholder Dispute' 'costs Orders (corporations List)']

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Procedural Posture

Corporations Procedural Application / Ex Tempore Judgment on Application to Modify Statutory Requirements and Grant Leave for Compulsory Share Transfer

Legal Issues

  1. 1 ['Whether Part 5.3A of the Corporations Act should be modified under s 447A so that s 444GA applies to voluntary administrators' 'Whether leave should be granted under s 444GA(1)(b) to transfer shares without shareholder consent' 'Whether the transfer would unfairly prejudice member interests' 'Whether costs should be ordered against an interested party opposing the application']

Ratio Decidendi

Leave to transfer shares under s 444GA is granted and s 444GA is modified under s 447A to apply to voluntary administrators because the shares have no residual value, the transfer does not unfairly prejudice the member, and the relief advances the objects of Part 5.3A by preserving the business and maximising returns to creditors. An order for costs is warranted against the interested party due to substantial opposition prolonging the hearing and needing to preserve assets for creditors.

Court Disposition

Application granted; orders made as sought by plaintiff.

Orders

  • ["Grant leave to file Vivien Botsikas' affidavit in Court." 'Order under s 447A modifying Part 5.3A to apply s 444GA to voluntary administration and administrator.' 'Grant leave under s 444GA(1)(b) for transfer of all shares held by Zahir Salie to Michael Cthurmer.' "Order Zahir Salie to pay plaintiff's costs of...