Application of Weston

[2011] NSWCA 250

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Application of Weston [2011] NSWCA 250

Hearing dates:

22 June 2011

Decision date:

12 September 2011

Before:

Giles JA at [1], McColl JA at [61], Basten JA at [62]

Decision:

Applications for leave to appeal dismissed.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

CORPORATIONS - Winding up - validity and validation of resolution purporting to fix remuneration of liquidator - effect of resolution - rulings as to work within liquidator's functions - leave to appeal refused.

Legislation Cited:

Corporations Act 2001 (C'th)
Corporations Amendment (Insolvency) Act 2007

Cases Cited:

Australian Securities and Investments Commission v Piggott Wood & Baker [2006] FCA 1774;
Mirror Group Newspapers Plc v Maxwell (No 2) (1998) 1 BCLC 638;
Re Vanfox Pty Ltd [1995] 2 Qd R 445; (1994) 13 ACSR 209.

Category:

Principal judgment

Parties:

Paul Gerard Weston (Special Purpose Liquidator of One.Tel Limited (In Liq)) - Applicant

Representation:

N Cotman SC & R Glasson - Applicant
D L Cook - Australian Securities and Investments Commission (Amicus curiae)
O'Neill Partners - Applicant

File Number(s):

CA 2003/86446

 Decision under appeal 

Citation:

Onefone Australia Pty Ltd v One.Tel Ltd [2010] NSWSC 401, [2010] NSWSC 1120, [2011] NSWSC 59

Before:

Barrett J

File Number(s):

2003/00086446

Judgment

1. GILES JA : The applicant is the special purpose liquidator of One.Tel Ltd. His remuneration would ordinarily be fixed by the committee of inspection pursuant to s 499(3) of the Corporations Act 2001 (C'th) ("the Act") as it stood prior to the amendments by the Corporations Amendment (Insolvency) Act 2007. He contended that fixing his remuneration pursuant to s 499(3) had proved unworkable, and applied to the Court for determination of his remuneration under s 511 of the Act as a question arising in the winding up.

1. The applicant applied for leave to appeal from decisions given on his remuneration application, one given on 7 May 2010 ( Onefone Australia Pty Ltd v One.Tel Ltd [2010] NSWSC 401) and the other given on 1 October 2010 ( Onefone Australia Pty Ltd v One.Tel Ltd [2010] NSWSC 1120). The applications were heard on full submissions as if appeals, so that the appeals could be decided without further submissions if leave to appeal were granted.

1. In the absence of a contradictor, ASIC appeared as amicus curiae. The assistance provided by ASIC is appreciated, and should be acknowledged.

The course of the remuneration application

1. The application was for an order determining the applicant's remuneration at $261,135 plus GST for the period of four months from 1 July 2009 to 31 October 2009 and $182,199 plus…