Carter v New Tel [2003] NSWSC 128

Carter v New Tel [2003] NSWSC 128

The Court ordered that New Tel Ltd be wound up in insolvency because the company was insolvent and there were good reasons to convert the existing deemed creditors' voluntary winding up into a Court-ordered winding up: the order would make s 588FJ available to the liquidator to challenge charges where there was a plausible case and potential substantial benefit to unsecured creditors; it would attract s 468 to possible dispositions of valuable company property; and the D&O policy wording provided a plausible reason for a Court appointment. Adequate notice had been given to the entities most directly affected and there was a reasonable prospect creditors generally would benefit and not be...

Jurisdiction
Australia
Judgment Date
07 March 2003
Procedural Posture
Application by Liquidators of a Company in Voluntary Winding Up for an Order That the Company Be Wound Up in Insolvency by the Court / Winding Up Order Made; Reasons for Judgment Delivered
Outcome
Winding up order made.
Legal Topics
['winding Up by the Court' "creditors' Voluntary Winding Up After Voluntary Administration" 'void Charges' 'void Dispositions After Commencement of Winding Up' 'directors and Officers Liability Insurance' 'notice and Dispensation From Advertising and Service Requirements']
['corporations Law' 'insolvency'] ['winding Up by the Court' "creditors' Voluntary Winding Up After Voluntary Administration" 'void Charges' 'void Dispositions After Commencement of Winding Up' 'directors and Officers Liability Insurance' 'notice and Dispensation From Advertising and Service Requirements']

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Procedural Posture

Application by Liquidators of a Company in Voluntary Winding Up for an Order That the Company Be Wound Up in Insolvency by the Court / Winding Up Order Made; Reasons for Judgment Delivered

Legal Issues

  1. 1 ["Whether the Court should order that New Tel Ltd be wound up in insolvency even though it was already in a deemed creditors' voluntary winding up." 'Whether s 588FJ of the Corporations Act 2001 (Cth) was available only where the company was being wound up by order under s 459A.' 'Whether a Court winding up order would assist the liquidator to challenge possible dispositions of company property under s 468 of the Corporations Act 2001 (Cth).' "Whether the wording of New Tel Ltd's directors and officers liability insurance policy provided a plausible reason for making a Court winding up order." 'Whether adequate notice of the application had been given and whether requirements for advertisement, publication and service should be dispensed with.']

Ratio Decidendi

The Court ordered that New Tel Ltd be wound up in insolvency because the company was insolvent and there were good reasons to convert the existing deemed creditors' voluntary winding up into a Court-ordered winding up: the order would make s 588FJ available to the liquidator to challenge charges where there was a plausible case and potential substantial benefit to unsecured creditors; it would attract s 468 to possible dispositions of valuable company property; and the D&O policy wording provided a plausible reason for a Court appointment. Adequate notice had been given to the entities most directly affected and there was a reasonable prospect creditors generally would benefit and not be...

Court Disposition

Winding up order made.

Orders

  • ['New Tel Ltd was ordered to be wound up in insolvency.' 'Mr Hall was appointed liquidator.' 'Orders were made under s 467(3)(b) and Rule 5.6(1) of the Corporations Rules dispensing with the requirement to advertise or publish notice of the application under s 465A and Rule 5.6.' 'The requirement that the...