Aboriginal & Torres Strait Islander Commission v Muralag Tribal Torres Strait Islanders Corporation

[1995] FCA 24

IN THE FEDERAL COURT OF AUSTRALIA )No. QG 115 of 1994
QUEENSLAND DISTRICT REGISTRY     )
GENERAL DIVISION                 )

BETWEEN:THE ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION

Applicant

AND:MURALAG TRIBAL TORRES STRAIT ISLANDERS CORPORATION

Respondent

MINUTES OF ORDERS

JUDGE MAKING ORDER:         Drummond J
DATE OF ORDER:              3 February, 1995
WHERE MADE:                 Brisbane

THE COURT ORDERS THAT:

1. Muralag Tribal Torres Strait Islanders Corporation ("the Corporation") be wound up by this Court pursuant to s. 63(2)(d) the Aboriginal Councils and Associates Act 1976.

1. Mr. Alan Raphel Tuttle, Chartered Accountant, of KPMG Peat Marwick, Level 31, Central Plaza One, 345 Queen Street, Brisbane in the State of Queensland, an Official Liquidator, be appointed liquidator of the affairs of the Corporation.

1. The applicant's costs be taxed (including any reserved costs) and be reimbursed in accordance with s. 466(2) the Corporations Law.

NOTE:     Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )    No. QG 115 of 1994
QUEENSLAND DISTRICT REGISTRY     )
GENERAL DIVISION                 )

BETWEEN:THE ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION

Applicant

AND:MURALAG TRIBAL TORRES STRAIT ISLANDERS CORPORATION

Respondent

Coram:    Drummond J
Date:     3 February, 1995
Place:    Brisbane

REASONS FOR JUDGMENT

This is an application by the Aboriginal and Torres Strait Islander Commission ("ATSIC") as a creditor of the respondent, which in turn is an Aboriginal association incorporated in June 1989 under the Aboriginal Councils and Association Act 1976, for a winding up order on the ground, among others, that the respondent is insolvent.

In the three month period April to June 1993 the respondent received grants of public moneys totalling $406,176.  The respondent, however, quite quickly became insolvent.  It appears from a report prepared by the trustee appointed to the respondent by ATSIC - the trustee being a member of the accountancy firm of Hall Chadwick - that in November 1994 the respondent had assets in the form of a small amount of cash, plant and equipment which the trustee estimates then had a realisable value of only about $59,000.  Its liabilities were then $139,245.  The respondent's only other asset is a claim it has against certain persons associated with an organisation called Torfish International, which the respondent engaged as its consultant.  On the limited material before me, it appears that those associated with the consultant misappropriated approximately $83,000 of a total of approximately $109,000 of grants moneys paid by the respondent to the consultant in early 1993.  Inquiries by the respondent's solicitors, the extent of which is not revealed by the evidence before me, suggest that these persons are unlikely to be able to satisfy any judgment the respondent may obtain against them.

The respondent's main liability is to ATSIC for repayment of one of the grants, viz., a grant of $130,000, made in March or April of 1993.  The repayment of this grant is due to ATSIC because the respondent has failed to fulfil the terms and conditions of the grant in that it failed to utilise the grant moneys for the approved purposes, as specified in ATSIC's letter of offer, and used some of the grant moneys for unapproved purposes, and in that it also failed to follow the requirements of the terms and conditions of the grant in relation to the engagement of Torfish International as consultants to the respondent.

I am satisfied from the evidence before me that the respondent is unable to pay its debts and I will order that it be wound up under s. 63 the Aboriginal Councils and Associations Act 1976.

I want to add by way of observation that ATSIC, as the respondent's only significant creditor, may, despite the suggestion that the persons associated with the respondent's consultant lack the financial means to make it worthwhile pursuing them, consider it desirable to arm the liquidator with the funds necessary to continue the legal proceedings already on foot by the respondent against these persons in an effort to recover the large amount of public money for which ATSIC has ultimate responsibility.

I certify that this and the preceding
two pages are a true copy of the
reasons for judgment herein of the
Honourable Justice Drummond.

Associate:

Date:        3 February, 1995