Visnic v Sywak [2011] NSWSC 1246

Visnic v Sywak [2011] NSWSC 1246

The court determined that surplus attributable to the Sywak shareholding could be distributed pursuant to court direction, but surplus attributable to the Visnic shareholding requires determination as to entitlement due to competing claims. Special leave is granted to distribute to Mr Sywak, but not for Visnic. No payment into court by liquidator is warranted; surplus relating to Visnic is to be invested and retained pending further order. The matter is listed for further directions to resolve entitlement and potential jurisdictional transfer.

Jurisdiction
Australia
Judgment Date
21 October 2011
Procedural Posture
Interlocutory Application / Directions Hearing
Outcome
Matter listed for further directions; special leave granted to liquidator to distribute surplus to Mr Sywak; surplus related to Visnic shareholding to be invested and retained pending further determination; liquidator's ongoing functions to be minimised.
Legal Topics
['winding Up' 'distribution of Surplus' 'equitable Interests in Shares' 'payment Into Court' 'cross Vesting' "liquidator's Functions"]
['corporations Law' 'equity' 'bankruptcy'] ['winding Up' 'distribution of Surplus' 'equitable Interests in Shares' 'payment Into Court' 'cross Vesting' "liquidator's Functions"]

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Interlocutory Application / Directions Hearing

Legal Issues

  1. 1 ['Who is entitled to surplus in winding up after debts and claims satisfied?' 'Should equitable interests in shares be recognised in distribution of surplus?' 'Should surplus attributable to disputed shareholdings be paid into court?' 'Which court is competent to determine competing claims to surplus—NSW Supreme Court or Federal Court?' "Should the liquidator's ongoing functions be minimised pending the determination of conflicting claims?"]

Ratio Decidendi

The court determined that surplus attributable to the Sywak shareholding could be distributed pursuant to court direction, but surplus attributable to the Visnic shareholding requires determination as to entitlement due to competing claims. Special leave is granted to distribute to Mr Sywak, but not for Visnic. No payment into court by liquidator is warranted; surplus relating to Visnic is to be invested and retained pending further order. The matter is listed for further directions to resolve entitlement and potential jurisdictional transfer.

Court Disposition

Matter listed for further directions; special leave granted to liquidator to distribute surplus to Mr Sywak; surplus related to Visnic shareholding to be invested and retained pending further determination; liquidator's ongoing functions to be minimised.

Orders

  • ['Direction to liquidator to attribute and distribute surplus to Sywak shareholding per s 485(2) and grant of special leave under s 488(2).' 'Direction to liquidator to invest and retain surplus relating to Visnic shareholding at interest per s 543(1), pending determination of entitlement and special leave.' 'No...