Melluish v Underwood Development Pty Ltd [2004] NSWSC 429

Melluish v Underwood Development Pty Ltd [2004] NSWSC 429

Because the Company appeared to have an asset capable of sale for $838,000 subject to a secured debt of $505,000, there was an apparent surplus for the benefit of the former shareholders. Mr Melluish, as trustee in bankruptcy of both former shareholders, therefore had an interest sufficient to be a person aggrieved by deregistration. It was just to reinstate the Company so that its value would not remain under the statutory regime applying to deregistered company assets but could be controlled by a liquidator for the benefit of creditors and shareholders. Given the apparent risk that company funds might be diverted to pay personal debts of the former shareholders, and because s.529 gave...

Jurisdiction
Australia
Judgment Date
17 May 2004
Procedural Posture
Application for Reinstatement of Registration of a Deregistered Company and for Winding Up Under the Corporations Act 2001 (cth) / Final Orders
Outcome
Orders made for reinstatement of registration and winding up of Underwood Development Pty Ltd.
Legal Topics
['reinstatement of Deregistered Company' 'winding Up on Just and Equitable Ground' 'standing of Trustee in Bankruptcy' 'person Aggrieved by Deregistration' 'contributory' 'misapplication of Company Funds']
['corporations Law' 'bankruptcy' 'equity'] ['reinstatement of Deregistered Company' 'winding Up on Just and Equitable Ground' 'standing of Trustee in Bankruptcy' 'person Aggrieved by Deregistration' 'contributory' 'misapplication of Company Funds']

Case Brief

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Procedural Posture

Application for Reinstatement of Registration of a Deregistered Company and for Winding Up Under the Corporations Act 2001 (cth) / Final Orders

Legal Issues

  1. 1 ['Whether the trustee in bankruptcy of both former shareholders was a person aggrieved by the deregistration for the purposes of s.601AH of the Corporations Act 2001 (Cth).' "Whether it was just that the Company's registration be reinstated." 'Whether the Company should be wound up on the just and equitable ground at the same time as reinstatement.' 'Whether the trustee in bankruptcy had standing as a contributory to seek a winding up order under s.462(2)(c) and s.529 of the Corporations Act 2001 (Cth).']

Ratio Decidendi

Because the Company appeared to have an asset capable of sale for $838,000 subject to a secured debt of $505,000, there was an apparent surplus for the benefit of the former shareholders. Mr Melluish, as trustee in bankruptcy of both former shareholders, therefore had an interest sufficient to be a person aggrieved by deregistration. It was just to reinstate the Company so that its value would not remain under the statutory regime applying to deregistered company assets but could be controlled by a liquidator for the benefit of creditors and shareholders. Given the apparent risk that company funds might be diverted to pay personal debts of the former shareholders, and because s.529 gave...

Court Disposition

Orders made for reinstatement of registration and winding up of Underwood Development Pty Ltd.

Orders

  • ['Order that Australian Securities and Investments Commission reinstate the registration of Underwood Development Pty Ltd ACN 087 319 382.' 'Order that Underwood Development Pty Ltd be wound up under the Corporations Act 2001.' 'Order that Max Christopher Donnelly of level 17, 2 Market Street, Sydney, an official...