In the matter of ACN 605 810 928 Pty Ltd (in liq) (formerly Sydney Outboard Centre Pty Ltd) [2018] NSWSC 2026

In the matter of ACN 605 810 928 Pty Ltd (in liq) (formerly Sydney Outboard Centre Pty Ltd) [2018] NSWSC 2026

The Court validated Mr Ball's appointment as liquidator under s 1322(4) because the appointment purported to follow a voluntary winding up under s 491 by a person recorded on ASIC's records as sole member, any invalidity arose from uncertainty about the shareholder status of Mr Toms after Liquidion's deregistration, Mr Ball was an interested person, and it was just and equitable to validate the appointment. The Company had been in voluntary liquidation for some time, its assets were unlikely to permit any distribution to creditors or shareholders, there was no suggestion it was solvent or should return to trading, Mr Ball was not on notice of the invalidity, creditors and the community...

Jurisdiction
Australia
Judgment Date
29 October 2018
Procedural Posture
Corporations Application to Validate Appointment of Liquidator / Originating Process; Principal Judgment
Outcome
Order made under s 1322(4) of the Corporations Act 2001 (Cth) validating the Plaintiff's appointment as liquidator of the First Defendant, nunc pro tunc. The Plaintiff's costs of the application be paid out of the assets of the First Defendant.
Legal Topics
['voluntary Winding Up' 'validation of Liquidator Appointment' 'corporations Act 2001 (cth) S 1322' 'deregistered Company' 'share Transfer Capacity']
['corporations Law' 'equity'] ['voluntary Winding Up' 'validation of Liquidator Appointment' 'corporations Act 2001 (cth) S 1322' 'deregistered Company' 'share Transfer Capacity']

Case Brief

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Procedural Posture

Corporations Application to Validate Appointment of Liquidator / Originating Process; Principal Judgment

Legal Issues

  1. 1 ["Whether the Court should make an order under s 1322(4) of the Corporations Act 2001 (Cth) validating the Plaintiff's appointment as voluntary liquidator of the First Defendant nunc pro tunc." "Whether the voluntary winding up by special resolution under s 491 of the Corporations Act 2001 (Cth) may have been invalid because Mr Toms may not have been the Company's sole member following a purported transfer of shares by deregistered Liquidion." 'Whether it was just and equitable to validate the appointment despite uncertainty about whether the persons involved in the appointment acted honestly.' 'Whether orders reinstating Liquidion or rectifying records were necessary for present purposes.']

Ratio Decidendi

The Court validated Mr Ball's appointment as liquidator under s 1322(4) because the appointment purported to follow a voluntary winding up under s 491 by a person recorded on ASIC's records as sole member, any invalidity arose from uncertainty about the shareholder status of Mr Toms after Liquidion's deregistration, Mr Ball was an interested person, and it was just and equitable to validate the appointment. The Company had been in voluntary liquidation for some time, its assets were unlikely to permit any distribution to creditors or shareholders, there was no suggestion it was solvent or should return to trading, Mr Ball was not on notice of the invalidity, creditors and the community...

Court Disposition

Order made under s 1322(4) of the Corporations Act 2001 (Cth) validating the Plaintiff's appointment as liquidator of the First Defendant, nunc pro tunc. The Plaintiff's costs of the application be paid out of the assets of the First Defendant.

Orders

  • ["Order pursuant to s 1322(4) of the Corporations Act 2001 (Cth) validating the Plaintiff's appointment as liquidator of the First Defendant, nunc pro tunc." "The Plaintiff's costs of the application be paid out of the assets of the First Defendant."]