ABC Containerline NV (In Liq) - Application of Liquidator

[2005] NSWSC 1

Reported Decision: 52 ACSR 750

New South Wales

Supreme Court

CITATION:	ABC Containerline NV (In Liq) - Application of Liquidator [2005] NSWSC 1
HEARING DATE(S):	13/12/04
JUDGMENT DATE :	1 February 2005
JURISDICTION:	Equity Division Corporations List
JUDGMENT OF:	Barrett J
DECISION:	Short minutes to be brought in

CATCHWORDS:	CORPORATIONS - winding up - foreign corporation adjudged bankrupt in place of origin - subsequent winding up order under Corporations Law - application by liquidator for discharge - considerations relevant to such application - preliminary ruling as to substituted notification requirements appropriate to particular circumstances.
LEGISLATION CITED:	Corporations Law, s.583
CASES CITED:	Australian Securities and Investments Commission v Edwards [2004] QSC 344 Australian Securities and Investments Commission v International Unity Insurance (General) Ltd [2004] FCA 1060 Deputy Commissioner of Taxation v Tideturn Pty Ltd (2001) 37 ACSR 152 Duffy v Super Centre Development Corporation Ltd [1967] 1 NSWR 382 In re English Scottish and Australian Chartered Bank [1893] 3 Ch 385 Peninsular Group Ltd v Kintsu Co Ltd (1998) 44 NSWLR 534 Re Australian Federal Life and General Assurance Co Ltd [1931] VLR 317 Re Autistic Therapy Society of Queensland Ltd (1981) 5 ACLR 658 Re CW Constructions Pty Ltd (1996) 22 ACSR 78 Re Hibernian Merchants Ltd [1958] Ch 76 Re Munro [1981] 1 WLR 1358 Re Timberland Ltd (1979) 4 ACLR 259
PARTIES:	Michael Edward Wayland as liquidator of ABC Containerline NV (In Liq) - Plaintiff
FILE NUMBER(S):	SC 2333/99
COUNSEL:	Mr G. Lucarelli - Plaintiff
SOLICITORS:	Minter Ellison - Plaintiff

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

BARRETT J

TUESDAY, 1 FEBRUARY 2005

2333/99 – APPLICATION OF MICHAEL EDWARD WAYLAND IN HIS CAPACITY AS LIQUIDATOR OF ABC CONTAINERLINE NV

JUDGMENT

1 ABC Containerline NV (which I shall call “ABC”) is a corporation created and existing under the laws of the Kingdom of Belgium. On 21 June 1999, this court made an order that ABC be wound up pursuant to s.583 of the Corporations Law and an order that Mr Wayland be appointed its liquidator. Those orders were made upon application made by ABC itself by summons filed on 13 May 1999.

2 By interlocutory process filed on 24 November 2004, Mr Wayland seeks an order that he be discharged and released from his appointment as liquidator of ABC. As a preliminary, the interlocutory process seeks orders and directions on a number of procedural matters, being orders dispensing with compliance with rules 7.5(2) and 7.5(6) of the Supreme Court (Corporations) Rules 1999 and directions as to service of the application itself. At this stage, the application has been served on the Australian Securities and Investments Commission only.

3 These reasons deal only with the procedural questions. The substantive issue can be argued after those matters have been dealt with. The procedural questions must be approached in light of the circumstances of the particular winding up.

4 ABC was adjudged bankrupt by the Commercial Court of the judicial district of Antwerp on 5 April 1996. That court appointed Mr H. Heirbrut, Commercial Judge, to be Judge-Commissioner and Mr T. van Doosselaere and Mr F. de Roy to be trustees in bankruptcy. The trustees in bankruptcy gave instructions to Sydney solicitors in 1999 to seek the winding up order that was made by this court on 21 June 1999. The order was made on the basis that ABC was a “Part 5.7 body”, as defined by s.9 of the Corporations Law, and that it was unable to pay its debts and had ceased to carry on business in Australia, these being grounds specified in s.583(c)(i) of the Corporations Law on which the winding up of a Part 5.7 body might be ordered. An affidavit of Mr de Roy filed in support of the winding up application stated:

“The trustees in bankruptcy of the plaintiff wish to wind up its affairs in Australia. The trustees in bankruptcy are not recognised in Australia and desire that an order be made by the Court winding up the plaintiff and appointing an Australian liquidator in order for the affairs of the plaintiff to be wound up in Australia.”

5 The evidence adduced upon the hearing of the application for a winding up order suggested that ABC had in fact carried on business in Australia for some years before June 1996 and had assets in Australia. It appears that it employed persons in Australia who attended to matters arising in Australia in relation to its shipping activities in so far as there was a need for management and administration of them in Australia. ABC had, from about 1978, a close association with the TNT Limited group and it appears that companies within that group effected registrations under the Business Names Acts of several States apparently with a view to securing some measure of protection of the “ABC Containerline” name. ABC was not, however, itself registered under Part 5B.2 of the Corporations Law or predecessor provisions with respect to registration of foreign companies carrying on business or having a place of business in Australia.

6 It may be that, because of the matters I have just mentioned, ABC contravened s.601CD(1) of the Corporations Law as in force in 1999 and earlier corresponding provisions forbidding the carrying on of business by a foreign company in Australia in the absence of registration. For present purposes, the relevance of any failure to comply with the provisions concerning foreign company registration is that s.601CL(14) of the Corporations Law did not operate in consequence of the Belgian winding up. That section referred to a situation where a “registered foreign company” (being, according to the s.9 definition of that term, a foreign company that is actually registered under Division 2 of Part 5B.2) “commences to be wound up, or is dissolved or deregistered, in its place of origin”. In such a case, s.601CL(14)(b) said that:

“the Court must, on application by the person who is the liquidator for the foreign company’s place of origin, or by ASIC, appoint a liquidator of the foreign company.”

Section 601CL(15) then went on to prescribe special duties for the locally appointed liquidator and to regulate the interaction between that liquidator and the liquidator in the place of origin.

7 I mention these matters merely to emphasise that the winding up with which I am here concerned is to be approached without reference to the particular provisions with respect to ancillary winding up contained in Part 5B.2. The present case is one in which the jurisdiction to make a winding up order derived exclusively from Part 5.7. ABC was, at the time of its winding up, in a position where it had previously carried on business within Australia but had ceased doing so. That was sufficient to bring it within the aspect of the s.9 definition of “Part 5.7 body” referring to “a registrable body that is a foreign company and … is not registered under that Division [ie, Division 2 of Part 5B.2] but carries on business in Australia”: see Australian Securities and Investments Commission v International Unity Insurance (General) Ltd [2004] FCA 1060; Australian Securities and Investments Commission v Edwards [2004] QSC 344. The conduct and incidents of the winding up of ABC are accordingly governed by Part 5.7. Before considering those matters, I should say something about the state of the administration and the stage it has reached.

8 After his appointment as liquidator, Mr Wayland proceeded to conduct a series of public examinations of persons associated with Combined Shipping Services Pty Ltd (“CSS”), a member of the TNT group with which ABC had had a close commercial association in relation to container shipping activities before the advent of the Belgian bankruptcy.

9 The trustees in bankruptcy and Mr Wayland were of the view that ABC may have had a substantial claim against CSS arising from the course of dealings between them. The basis for this view is stated in some detail in Mr Wayland’s affidavit sworn on 16 November 2004, but it is not necessary to canvass it here. In April 2002, Mr Wayland, on behalf of ABC, lodged a proof of debt for some $3 million in the liquidation of CSS which by then had become subject to winding up. The proof of debt was rejected by the liquidator of CSS in June 2003. Some correspondence followed. In addition, Mr Wayland obtained advice from counsel as to the prospects of success in foreshadowed proceedings to press a claim against both CSS and TNT. A copy was provided to the trustees in bankruptcy who, on Mr Wayland’s understanding, obtained judicial advice from the Antwerp court on the possible proceedings. On 29 September 2004, the trustees in bankruptcy informed Mr Wayland that the Judge-Commissioner had decided that the proceedings should not be pursued.

10 Annexed to My Wayland’s affidavit is a copy of a notice to creditors of ABC published by the trustees in bankruptcy. It carries the signature of Mr van Doosselaere and is in the Dutch language, with translations into French, German and English appended. It is described in a letter from Mr de Roy to Mr Wayland dated 29 September 2004 as “the worldwide call for proofs of debt”. The notice is dated 16 April 1996 and says (in the English version):

“As a presumable creditor in this bankruptcy, pronounce by judgment of the Commercial Court Antwerp on (cf. 1st date in Dutch text) you are hereby requested to tender proof of debt exclusively at the Office of said Court’s Clerk, Court-House (2nd floor, entrance Stockmansstraat) before (cf. 2nd date in Dutch text), indicating the cause of your claim.”

There follows information about how proofs of debt will be assessed and of the need to make a special application to the Commercial Court in order to lodge a proof of debt after the specified deadline.

11 Also received from Mr de Roy and annexed to Mr Wayland’s affidavit is a list of Australian entities which have lodged proofs of debt admitted in the Belgian bankruptcy. There are seventeen such entities with debts ranging from A$200.00 to A$1,487,909.22. The aggregate exceeds A$2 million. Mr Wayland deposes that, apart from the claim against CSS that the Belgian trustees in bankruptcy have decided not to pursue, ABC has no assets within Australia and he, as liquidator, has no funds available for distribution. His remuneration and expenses have been met by the Belgian trustees. Mr Wayland is therefore in a position where he considers that there is nothing more that he can usefully do as liquidator. It is in those circumstances that he has initiated steps to seek release.

12 Mr Wayland’s application for release is based on s.480 of the Corporations Act 2001 (Cth). The substantive claim is a claim for an order that Mr Wayland “be discharged and released from his appointment as liquidator of ABC Containerline NV”. The procedural orders or directions sought as a preliminary are, as I have said, referable to aspects of rule 7.5 of the Supreme Court (Corporations) Rules 1999. That rule is expressed to apply to an application by a liquidator of a company for an order that the liquidator be released or for an order that the liquidator be released and that ASIC deregister the company. The heading to the rule refers to s.480(c) and (d). Section 480 is in the following terms:

“ Release of liquidator and deregistration of company

When the liquidator:
(a) has realised all the property of the company or so much of that property as can in his or her opinion be realised without needlessly protracting the winding up, and has distributed a final dividend (if any) to the creditors and adjusted the rights of the contributories among themselves and made a final return (if any) to the contributories; or
(b) has resigned or has been removed from office;

he or she may apply to the Court:

(c) for an order that he or she be released; or
(d) for an order that he or she be released and that ASIC deregister the company.”

13 ABC is, of course, not a “company” for the purposes of this provision which is in Part 5.4B (see the s.9 definition of “company”). Its winding up derives from s.583 within Part 5.7. Section 583 begins:

“Subject to this Part, a Part 5.7 body may be wound up under this Chapter and this Chapter applies accordingly to a Part 5.7 body with such adaptations as are necessary, including the following adaptations …”

The references to “this Chapter” are references to the whole of Chapter 5 entitled “External Administration”. It is also relevant to quote s.582(1):

“This Part has effect in addition to, and not in derogation of, sections 601CC and 601CL and any provisions contained in this Act or any other law with respect to the winding up of bodies, and the liquidator or Court may exercise any powers or do any act in the case of Part 5.7 bodies that might be exercised or done by him, her or it in the winding up of companies.”

14 The judgment of Sheppard AJA (with whom Meagher and Sheller JJA agreed) in Peninsular Group Ltd v Kintsu Co Ltd (1998) 44 NSWLR 534 discusses the meaning and operation of s.583. His Honour said (at p.536):

“Section 583 deals with the winding up of Pt 5.7 bodies. Because of the definitions to which reference has been made it includes the winding up of foreign companies. But it needs to be borne in mind that it applies to a great many other types of association, using that expression broadly, some incorporated and some not. A wide range of undertakings is involved yet the same provisions apply to all notwithstanding that there may be substantial differences in their character and the nature of their activities.

Section 583 provides that, subject to Pt 5.7, a Pt 5.7 body may be wound up under Chapter 5 (that is the whole chapter) and the chapter applies (presumably as a whole in so far as it is applicable) to a Pt 5.7 body with such adaptations as are necessary including a number of adaptations which are specified.”

15 It is made clear here that the effect of s.583 is to make the provisions of Chapter 5 as a whole applicable to the winding up of a part 5.7 body subject to two qualifications: first, the specific adaptations stated in s.583 itself must be made; and, second, the applicability of any given Chapter 5 provision is to be judged according to the circumstances of the particular case. The Chapter 5 provisions as a whole, insofar as they deal with winding up, are concerned with the winding up of companies registered under the Corporations Act. Sheppard AJA referred to differences in character and activities as among bodies made susceptible to winding up under Part 5.7. There are also differences in character and activities between companies registered as such under the Corporations Act and the various kinds of Part 5.7 bodies. The non-specific adaptations directed by s.583 must, in my opinion, take account of such differences as there actually are, as to relevant matters, between the circumstances of a domestic company in the course of winding up and the circumstances of the winding up of the particular Part 5.7 body.

16 In the present case, the winding up ordered on 21 January 1999 arose from a decision of the Belgian trustees in bankruptcy that the insolvent administration over which they presided according to Belgian law would be enhanced by resort to winding up processes available under Australian law. The Australian winding up was, in a very real sense, ancillary to the Belgian insolvent administration. The guiding principle, in our law, is accordingly that stated by Vaughan Williams J in In re English Scottish and Australian Chartered Bank [1893] 3 Ch 385 (at p.394):

“[O]ne must bear in mind the principles upon which liquidations are conducted, in different countries and in different Courts, of one concern. One knows that where there is a liquidation of one concern the general principle is – ascertain what is the domicil of the company in liquidation; let the Court of the country of domicil act as the principal Court to govern the liquidation; and let the other Courts act as ancillary, as far as they can, to the principal liquidation. But although that is so, it has always been held that the desire to assist in the main liquidation – the desire to act as ancillary to the Court where the main liquidation is going on – will not ever make the Court give up the forensic rules which govern the conduct of its own liquidation.”

17 Although the winding up ordered by this court is, in reality of this ancillary kind, it is not, by the terms of the winding up order (or any legislative provision), made subsidiary to the Belgian administration. The liquidator appointed by this court is subject to the full range of duties and responsibilities attaching to the office of liquidator, subject to any direction that the court itself may see fit to make: see Re Hibernian Merchants Ltd [1958] Ch 76. As a general principle, therefore, the local liquidator should proceed in the manner stated by Lowe J in Re Australian Federal Life and General Assurance Co Ltd [1931] VLR 317 (at p.320):

“The purpose of the ancillary winding up is to secure the local assets, and the rights of the local creditors; and the duties of the liquidators accordingly are to collect the local asset, to settle a list of the local contributories and also, it would seem, to determine the claims of local creditors.”

18 The fact that Mr Wayland’s appointment was procured, in substance, by the Belgian trustees in bankruptcy (in that they caused ABC to make the application for a winding up order) does not mean that he is, or may regard himself as, merely an instrumentality of or assistant to those trustees. As a liquidator appointed by this court, he is an officer of the court and makes decisions which are, in effect, made under the authority of the court itself: Duffy v Super Centre Development Corporation Ltd [1967] 1 NSWR 382. As Marks J observed in Re Timberland Ltd (1979) 4 ACLR 259:

“The winding up is by the court which for the purposes the liquidator is.”

19 In the case of the winding up of a company, s.480 empowers the liquidator to apply to the court for an order that he or she be released. Such an application may be made in one of two situations: where the liquidator has resigned or been removed from office (s.480(b)); or where the liquidator “has realised all the property of the company or so much of that property as can in his or her opinion be realised without needlessly protracting the winding up, and has distributed a final dividend (if any) to the creditors and adjusted the rights of the contributories among themselves and made a final return (if any) to the contributories”(s.480(a)). In the present case, there is no suggestion that Mr Wayland has resigned or been removed, with the result that the application for release must be treated as based on s.480(a) or, at least, on so much of s.480(a) as is applicable to the case in conformity with s.583, having regard to the approach indicated by Sheppard AJA in the Peninsular Group case.

20 In my opinion, s.480 applies in a case such as the present on the footing that s.480(a) is concerned only with creditors and contributories having some logical connection with Australia which is of such a kind as to produce an expectation that their rights, claims and liabilities will be dealt with in the local winding up rather than in the principal administration in the place of incorporation or in some other ancillary administration in another place. That, it seems to me, is an adaptation indicated by the nature of the Part 5.7 body and the circumstances pertaining to it and, therefore, an adaptation directed by the general specification in s.583.

21 Mr Wayland’s affidavit shows that the only asset (or potential asset) in Australia is the claim against CSS. He conducted a number of examinations with a view to testing the viability of that claim. The evidence does not, however, disclose Mr Wayland’s own view on that question. It seems that he has reported to the Belgian trustees in bankruptcy and has transmitted to them legal advice obtained from Sydney counsel. As a result, it appears, the Judge-Commissioner in the Belgian administration has decided that the claim should not be pursued. It may be that Mr Wayland shares that view on the basis of an assessment he has himself made. But unless such an assessment has been made and decision reached, it seems to me that Mr Wayland has not completed the tasks that his position as liquidator appointed by this court under the Corporations Act requires him to perform.

22 The same comment applies in relation to the claims of creditors. Mr Wayland is aware that the Belgian trustees have called for proofs of debt and that the claims of seventeen Australian entities accounting for something in excess of A$2 million have been admitted in the principal administration. But, on the evidence as it stands, there is no indication that Mr Wayland has turned his mind to the question whether there may be other creditors within the purview of the winding up over which he has been appointed to preside. It may well be that the circumstances are not such as to warrant any formal call by Mr Wayland for proofs of debt and that, subject to the decision on the claim against CSS, it is reasonable to proceed on the basis that there will be no assets. But these are matters to which active consideration must be given.

23 When it comes to contributories in a case such as the present, the immediate inclination is to think that their liabilities will be a matter solely for the law of the place of incorporation. But s.586 makes it clear that the liquidator of a Part 5.7 body cannot ignore persons liable in the ways specified in s.586(1)(a) and (b). Each such person is, by s.586(1), made a contributory “liable to contribute to the property of the Part 5.7 body all sums due from the contributory in respect of any such liability”. It is made clear that this provision is concerned not only with domestic Part 5.7 bodies but also those having some other “place of origin”. In a case such as the present, therefore, the liquidator of a Part 5.7 body formed in another country and in the process of insolvent administration there cannot simply ignore the matter of contributories. There is, at the least, a duty to consider whether any persons of the kind identified in s.586(1) are within the purview of the local winding up. If they are, there will be a responsibility upon the liquidator to determine whether steps should be taken to enforce the s.586(1) liability.

24 In making the comments in paragraphs [21] to [23] above, I should not be taken to suggest that Mr Wayland has been derelict in his duty. I intend to do no more than to identify matters relevant to the conduct of the winding up under the Corporations Act that ought logically to receive attention when the application for release under s.480(c) is eventually considered by the court, particularly in the light of the pre-condition specified in s.480(a).

25 Against that background, I proceed to consider the steps that Mr Wayland should take as a prelude to pressing his application for release. Two matters are of particular relevance. The first is the effect of an order of release. That has a clear bearing on the precautions that should be taken to ensure that all considerations of relevance may come before the court. The second matter is the requirements imposed by existing provisions. Their applicability in the somewhat unusual circumstances of the present case arises for consideration.

26 The effect of an order for release of a liquidator under s.480(c) is stated in ss.481(3) and (4):

“(3) An order of the Court releasing the liquidator discharges him or her from all liability in respect of any act done or default made by him or her in the administration of the affairs of the company or otherwise in relation to his or her conduct as liquidator, but any such order may be revoked on proof that it was obtained by fraud or by suppression or concealment of any material fact.

(4) Where the liquidator has not previously resigned or been removed, his or her release operates as a removal from office.”

27 The effect of a s480(c) order is not only that the liquidator ceases to be liquidator but also that he or she obtains the form of absolution conferred by s.481(3). The nature of that absolution was considered by Walton J in Re Munro [1981] 1 WLR 1358. Speaking of corresponding English sections concerning trustees in bankruptcy, his Lordship said (at p.1362):

“What is in my judgment crystal clear is that upon a true construction of s.93(3) [of the Bankruptcy Act 1914], which interestingly does not ever appear to have been previously construed, although the proviso thereto was construed in In re Harris, Ex parte Hasluck [1899] 2 QB 97, it appears to me that the intention of that subsection, and it is a very right, proper and wholesome intention, is to wipe the slate completely clean so far as the trustee is concerned, so that he may thereafter pay no though to the previous course of his actions as the trustee in bankruptcy.”

The effect of the release was further described as follows:

“[T]he applicant would be deprived completely of any redress whatsoever against the trustee in bankruptcy in respect of the whole of the conduct of the trustee in bankruptcy in relation to the applicant’s own proof of debt.”

28 As is illustrated by the decision of Santow J in Deputy Commissioner of Taxation v Tideturn Pty Ltd (2001) 37 ACSR 152, the objective of the notification requirements to be observed in advance of the hearing of a s.480 application is to ensure that that application becomes a forum for the consideration of any claims that the liquidator has been derelict or deficient in the performance of his or her functions. If the form of absolution or dispensation mentioned in s.481(3) and explained in Re Munro (above) is to be given, it should only be given in a context making it as certain as may practicably be that an adequate and reasonable opportunity for the advancing of contrary submissions has been created.

29 The regime in the Supreme Court (Corporations) Rules 1999 for ensuring notice appropriate to meet this objective makes the liquidator’s interlocutory process and accompanying documents the vehicle for the giving of such notice. The requirements with respect to the content of the interlocutory process and other documents are complemented by a requirement that every creditor who has lodged a proof of debt and every contributory be served. These provisions are found in rule 7.5. It has been held, however, that these express requirements concerning service do not imply the exclusion of the right of any creditor to be heard on the liquidator’s application, whether or note the creditor has lodged a proof of debt: see Re Autistic Therapy Society of Queensland Ltd (1981) 5 ACLR 658.

30 In the present case, the liquidator has received no proofs of debt and may not have identified any contributories. Bare compliance with rule 7.5 would therefore not bring the liquidator’s application to the notice of anyone. And this is in circumstances where the liquidator has actual notice that there are a number of creditors within the jurisdiction, albeit creditors who have chosen to respond to the call for proofs of debt made by the Belgian trustees in bankruptcy.

31 Because this case concerns an ancillary winding up of a foreign corporation (Part 5.7 body) and the circumstances do not in all respects fit the expectations exhibited in the Act and rules with respect of s.480(c) applications by liquidators of domestic companies, the appropriate course will be, first, to make an order under Part 1 rule 12 of the Supreme Court Rules (which, by virtue of rule 1.3 of the Supreme Court (Corporations) Rules, applies to a s.480(c) application) dispensing with all applicable requirements of rule 7.5 and, second, to impose a specially tailored notification regime by means of directions made under rule 1.8 of the Supreme Court (Corporations) Rules.

32 Mr Lucarelli of counsel, who appeared for the liquidator, submitted that, in the circumstances of this case where the Belgian bankruptcy administration continues and creditors are able to press their claims upon the Belgian trustees in bankruptcy, no real purpose is served by any notification by the Australian liquidator of his intention to seek an order of release. I do not accept that this is so. True it is that known Australian creditors have preferred to prove in the Belgian bankruptcy. But this may be because they acted before the Australian liquidator was appointed or were unaware of his appointment. For reasons I have already outlined, the liquidator appointed under the Corporations Act is accountable for his own administration which, in the eyes of our law, is distinct from the Belgian administration.

33 Mr Lucarelli submitted, in the alternative, that the only step that should be considered necessary is direct notification by the liquidator of the seventeen Australian entities which have lodged proofs in the Belgian administration. A possible form of such notification (based on Form 154H) was proposed as follows:

“ NOTICE OF INTENTION OF LIQUIDATOR TO SEEK RELEASE
To:
I, Michael Edward Wayland of O’Brien Balmer, Chartered Accountants, Level 4, 23 Hunter Street, Sydney, give notice that:
1. By order of the Supreme Court of New South Wales made on 21 June 1999 I was appointed as liquidator of the Australian assets of ABC Containerline N.V. (“ ABC ”).
2. ABC is a member of an international group of companies. The liquidation of the international group is being conducted by Messrs Frans de Roy and Van Doosselaere, who were appointed trustees in bankruptcy of ABC and other ABC group companies by the Commercial Court of the Judicial District of Antwerp, Belgium, on 5 April 1996 (“ Belgian trustees in bankruptcy ”).
3. Since my appointment, I have investigated the existence of any actual or potential assets within Australia. As a result of those investigations, I have concluded thee are no realisable assets situated within Australia.
4. I am informed by the Belgian trustees in bankruptcy that your proof of debt or claim has been accepted in whole or in part by the Belgian trustees in bankruptcy. As there are no funds under my control to declare any dividend to Australian creditors, you are advised to direct all correspondence and queries concerning your claim to the Belgian trustees in bankruptcy. Their contact details are: [ specify address, facsimile and telephone numbers ].
5. I have made application to the Supreme Court of New South Wales for an order that I be released as liquidator of ABC. My application for a release is next before the Supreme Court of New South Wales on [ specify adjourned date ].
6. If you wish to object to the grant of my release you may, by ( specify date 21 days from date of notice ] deliver to my solicitors a notice of objection stating the grounds of objection. The address for service of any notice of objection to my being released as liquidator: [ address etc of liquidator’s solicitors ].
NOTE: Section 481(3) of the Corporations Act provides that an order of the Court releasing the liquidator discharges him or her from all liability in respect of any act done or default made by the liquidator in the administration of the affairs of the company, or otherwise in relation to the liquidator’s conduct as liquidator, but any such order may be revoked on proof that it was obtained by fraud or suppression of be concealment of any material fact.
Dated:
…………………………….
Michael E. Wayland”

34 Subject to Mr Wayland’s actually holding the opinions expressed in this form of notice, I accept that a requirement for despatch of a notice in that form to the seventeen Australian entities in question should be imposed pursuant to rule 1.8 of the Supreme Court (Corporations) Rules.

35 I am of the opinion, however, that an additional step should be taken, namely, the publication of a brief advertisement of Mr Wayland’s s.480(c) application. Mr Lucarelli pointed out that the general requirement for advertising in such cases was discontinued when rule 7.5 of the Supreme Court (Corporations) Rules 1999 displaced Part 80A rule 33 of the Supreme Court Rules. But the present case has the special features to which I have already referred, including that creditors in Australia may be ignorant of the Australian winding up. Steps should be taken to put those creditors into a position where they can make appropriate inquiries and come to a decision whether they wish to be heard on the application for a s.480(c) order. The directions under rule 1.8 should therefore include a requirement for the insertion in a daily newspaper circulating generally in each State and Territory of an advertisement to the general effect of paragraphs 5 and 6 of the form of notice set out above (but with paragraph 6 referring to any creditor or contributory of ABC, rather than “you”), plus the “note” at the foot of the notice and with an added statement that a copy of the liquidator’s application and supporting documents will be made available by post and without charge to any person who claims to be a creditor or contributory.

36 The appropriate course will be for Mr Wayland to submit short minutes of orders and directions to create a regime of notification and advertisement in conformity with the foregoing, in lieu of the system of notification provided for in rule 7.5.

37 There is one matter to be mentioned briefly in conclusion. The only substantive order contemplated by Mr Wayland’s interlocutory process is an order of release under s.480(c). If such an order is made, a question will remain as to the ongoing status of the winding up of the Part 5.7 body. This is obviously a case in which an order under s.480(d) for both release of the liquidator and dissolution of the company would be inappropriate, in that this court has no jurisdiction to initiate action to terminate the existence of a juristic entity created by the law of Belgium and would not purport to do so. But an order solely for release of a liquidator of a domestic company has been held to leave intact the winding up put in place by the winding up order made upon the same application as the order for the appointment of a liquidator: see Re CW Constructions Pty Ltd (1996) 22 ACSR 78. There is no reason to think that the same reasoning does not apply to the winding up of a Part 5.7 body. The circumstance that a winding up would (or might) continue indefinitely without any liquidator being in office is one to which the court would pay attention if the s.480(c) application were pursued otherwise than in conjunction with a parallel application by the liquidator for an order terminating the winding up itself: see ss.482(1) and 482(1A)(a).

38 I direct that, within fourteen days, the liquidator file short minutes, as described, by delivery to my Associate.

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