Emanuele, Rocco & Anor v Australian Securities Commission & Ors [1995] FCA 1068

Emanuele, Rocco & Anor v Australian Securities Commission & Ors [1995] FCA 1068

Directors, though not creditors or contributories, had sufficient interest as directors representing boards in a residuary capacity to prosecute appeals concerning winding up under deeds of company arrangement. Failure to obtain prior leave under s.459P(2) was a procedural irregularity curable by nunc pro tunc order. Serious and unanswered allegations of material non-disclosure to the administrator and creditors, supported by substantial evidence of insolvency, justified winding up orders, appointment of provisional liquidators, and the declaration that deeds of company arrangement were void. Dispensation with certain procedural requirements such as notice under s.465A was justified. No...

Parties
Appellant: Rocco Emanuele; Appellant: Linton Emanuele; First Respondent: Australian Securities Commission; Second Respondent: Addstone Pty Ltd (in provisional liquidation) and others; Third Respondent: The Commonwealth of Australia
Jurisdiction
Australia
Judgment Date
15 December 1995
Procedural Posture
Appeal / Full Court Hearing of Appeal From a Single Judge of the Federal Court of Australia
Outcome
Appeal and application for leave to appeal dismissed.
Legal Topics
Winding Up Companies, Deeds of Company Arrangement, Leave to Apply for Winding Up, Standing to Appeal, Appointment of Provisional Liquidators, Material Non Disclosure
Corporations Law Practice and Procedure Winding Up Companies Deeds of Company Arrangement Leave to Apply for Winding Up Standing to Appeal Appointment of Provisional Liquidators Material Non Disclosure

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Parties

Rocco Emanuele

Appellant

Linton Emanuele

Appellant

Australian Securities Commission

First Respondent

Addstone Pty Ltd (in provisional liquidation) and others

Second Respondent

The Commonwealth of Australia

Third Respondent

Procedural Posture

Appeal / Full Court Hearing of Appeal From a Single Judge of the Federal Court of Australia

Legal Issues

  1. 1 Whether company directors have standing to appeal against winding up orders under a deed of company arrangement
  2. 2 Whether applications to wind up companies under s.459P(2) without leave are a nullity or procedural irregularities
  3. 3 Whether the court can grant leave nunc pro tunc for such applications

Ratio Decidendi

Directors, though not creditors or contributories, had sufficient interest as directors representing boards in a residuary capacity to prosecute appeals concerning winding up under deeds of company arrangement. Failure to obtain prior leave under s.459P(2) was a procedural irregularity curable by nunc pro tunc order. Serious and unanswered allegations of material non-disclosure to the administrator and creditors, supported by substantial evidence of insolvency, justified winding up orders, appointment of provisional liquidators, and the declaration that deeds of company arrangement were void. Dispensation with certain procedural requirements such as notice under s.465A was justified. No...

Court Disposition

Appeal and application for leave to appeal dismissed.

Orders

  • Objections to competency dismissed.
  • Order of the primary judge of 30 August 1995 amended to grant the Australian Securities Commission leave nunc pro tunc under s.459P(2) of the Corporations Law to apply to wind up in insolvency the relevant companies.