Jones re ACN 110 802 938 Pty Ltd [2006] NSWSC 276

Jones re ACN 110 802 938 Pty Ltd [2006] NSWSC 276

The plaintiff liquidator failed to satisfy the court that the prerequisites in s.486A(2)(a), (b), and (c) were met; specifically, section 486A was not applicable in creditors voluntary winding up, no prima facie case of director liability was established, and there was no substantial evidence of intention to leave Australia to avoid liability. Accordingly, the order prohibiting the director from leaving Australia was refused.

Parties
Plaintiff: Michael Gregory Jones as liquidator of ACN 110 802 938 Pty Ltd; Director (respondent to Interlocutory Application): Oliver Banovec
Jurisdiction
Australia
Judgment Date
12 April 2006
Procedural Posture
Corporations Application by Liquidator / Interlocutory Application for Order Prohibiting Director From Leaving Australia
Outcome
Application for order prohibiting director from leaving Australia dismissed
Legal Topics
Winding Up, Liquidator's Powers, Director Liability, Interlocutory Relief, Prima Facie Case, Substantial Evidence
Corporations Law Equity Winding Up Liquidator's Powers Director Liability Interlocutory Relief Prima Facie Case Substantial Evidence

Case Brief

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Parties

Michael Gregory Jones as liquidator of ACN 110 802 938 Pty Ltd

Plaintiff

Oliver Banovec

Director (respondent to Interlocutory Application)

Procedural Posture

Corporations Application by Liquidator / Interlocutory Application for Order Prohibiting Director From Leaving Australia

Legal Issues

  1. 1 Whether an order under s.486A prohibiting a director from leaving Australia is available in a creditors voluntary winding up
  2. 2 Whether the liquidator has shown at least a prima facie case of liability of the director
  3. 3 Whether the liquidator has shown substantial evidence of the director's intention to leave Australia

Ratio Decidendi

The plaintiff liquidator failed to satisfy the court that the prerequisites in s.486A(2)(a), (b), and (c) were met; specifically, section 486A was not applicable in creditors voluntary winding up, no prima facie case of director liability was established, and there was no substantial evidence of intention to leave Australia to avoid liability. Accordingly, the order prohibiting the director from leaving Australia was refused.

Court Disposition

Application for order prohibiting director from leaving Australia dismissed

Orders

  • Application for order 6 in the originating process dismissed
  • Plaintiff's costs of the application to be paid as an expense of the winding up out of company property