Guerin v Rose Guerin and Partners Pty Ltd (in liq) (receivers and managers appointed), in the matter of Rose Geurin and Partners Pty Ltd (in liq) (receivers and managers appointed) [2023] FCA 816

Guerin v Rose Guerin and Partners Pty Ltd (in liq) (receivers and managers appointed), in the matter of Rose Geurin and Partners Pty Ltd (in liq) (receivers and managers appointed) [2023] FCA 816

Leave was granted because the Company was clearly insolvent, Mr Rohrt was a registered liquidator and appropriately qualified, he had substantial familiarity with the Company's affairs through the liquidation, litigation, warrant, receivership and investigations, his appointment would avoid duplication and costs, there was no real or potential conflict or matter offensive to commercial morality, and the application was supported by Ms Guerin to facilitate a proposed DOCA. Ancillary orders modifying Pt 5.3A were appropriate because creditors had already had an opportunity to familiarise themselves with the Company's affairs, a first meeting would be a costly administrative burden, the...

Jurisdiction
Australia
Judgment Date
19 July 2023
Procedural Posture
Insolvency Application by Liquidator for Leave to Appoint Himself as Voluntary Administrator and for Ancillary Orders Modifying Pt 5.3 a of the Corporations Act 2001 (cth) / Interlocutory Process Filed 13 July 2023; Application Heard and Orders Made on 19 July 2023
Outcome
Application granted; ancillary orders made.
Legal Topics
['liquidator Appointment as Voluntary Administrator' 'voluntary Administration' 'deed of Company Arrangement' 'modification of Pt 5.3 a of the Corporations Act 2001 (cth)' 'first and Second Creditors Meetings']
['insolvency' 'corporations Law'] ['liquidator Appointment as Voluntary Administrator' 'voluntary Administration' 'deed of Company Arrangement' 'modification of Pt 5.3 a of the Corporations Act 2001 (cth)' 'first and Second Creditors Meetings']

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Procedural Posture

Insolvency Application by Liquidator for Leave to Appoint Himself as Voluntary Administrator and for Ancillary Orders Modifying Pt 5.3 a of the Corporations Act 2001 (cth) / Interlocutory Process Filed 13 July 2023; Application Heard and Orders Made on 19 July 2023

Legal Issues

  1. 1 ['Whether leave should be granted under s 436B(2)(g) of the Corporations Act 2001 (Cth) for Mr Rohrt, the liquidator of the Company, to appoint himself as administrator of the Company.' 'Whether orders should be made under s 447A of the Corporations Act 2001 (Cth) dispensing with the first meeting of creditors required by s 436E and modifying the timing for convening the second meeting of creditors under s 439A.' 'Whether ancillary notification, creditor-rights and liberty-to-apply orders should be made.']

Ratio Decidendi

Leave was granted because the Company was clearly insolvent, Mr Rohrt was a registered liquidator and appropriately qualified, he had substantial familiarity with the Company's affairs through the liquidation, litigation, warrant, receivership and investigations, his appointment would avoid duplication and costs, there was no real or potential conflict or matter offensive to commercial morality, and the application was supported by Ms Guerin to facilitate a proposed DOCA. Ancillary orders modifying Pt 5.3A were appropriate because creditors had already had an opportunity to familiarise themselves with the Company's affairs, a first meeting would be a costly administrative burden, the...

Court Disposition

Application granted; ancillary orders made.

Orders

  • ['Pursuant to s 436B(2)(g) of the Corporations Act 2001 (Cth), leave be granted to the second defendant to appoint himself, by writing, as administrator of the first defendant.' 'Pursuant to s 447A of the Act, the operation of Pt 5.3A of the Act be modified so that the requirement for convening and holding the first...