Australian Securities Commission v Corplan Nominees Pty Ltd (Receivers & Managers Appointed)

[1995] FCA 821

IN THE FEDERAL COURT OF AUSTRALIA )No QG 3013 of 1995
QUEENSLAND DISTRICT REGISTRY     )
GENERAL DIVISION                 )

IN THE MATTER OF CORPLAN NOMINEES PTY. LTD. (RECEIVERS AND MANAGERS APPOINTED) ACN 010 178 784

BETWEEN:  AUSTRALIAN SECURITIES COMMISSION

Applicant

AND:     CORPLAN NOMINEES PTY. LTD.

(ACN 010 178 784)

(Receivers and Managers appointed)

Respondent

MINUTES OF ORDERS

JUDGE MAKING ORDER:         Drummond J
DATE OF ORDER:              11 October, 1995
WHERE MADE:                 Brisbane

THE COURT ORDERS THAT:

1. Corplan Nominees Pty. Ltd. (Receivers and Managers appointed) be wound up by this Court under the provisions of the Corporations Law.

1. Ian Richard Hall and Peter James Hedge, both of Level 18, Waterfront Place, 1 Eagle Street, Brisbane in the State of Queensland, Official Liquidators, be appointed liquidators of the company.

1. The applicant's costs (including reserved costs) be taxed and reimbursed out of the property of the company in accordance with sub-section 466(2) of the Corporations Law.

THE COURT FURTHER ORDERS THAT:

1. Time for service by the applicant on the respondent of the Notice of Motion filed on 9 October, 1995 is abridged.

1. The receivers and managers of the respondent, namely, John Robert Rees and Robert Johnson Roach appointed by this Court on 26 May, 1994 and 31 May, 1994 in the matter QG 3007 of 1994 are discharged.

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 3013 of 1995
QUEENSLAND DISTRICT REGISTRY     )
GENERAL DIVISION                 )

IN THE MATTER OF CORPLAN NOMINEES PTY. LTD. (RECEIVERS AND MANAGERS APPOINTED) ACN 010 178 784

BETWEEN:  AUSTRALIAN SECURITIES COMMISSION

Applicant

AND:     CORPLAN NOMINEES PTY. LTD.

(ACN 010 178 784)

(Receivers and Managers appointed)

Respondent

Coram:    Drummond J
Date:     11 October, 1995
Place:    Brisbane

REASONS FOR JUDGMENT

This is an application by the Australian Securities Commission ("the Commission") to wind up Corplan Nominees Pty. Ltd. on the just and equitable ground.  By interlocutory orders which I made in action number QG 3007 of 1994 between the Commission, the company and those who controlled it and associated companies, I excluded from the management of the company the principal, Mr. Cyril John Pearson.  The grounds upon which I made that order involved provisional findings of misconduct in the management of the company, by Mr. Pearson in particular, sufficient to justify the interlocutory orders.

The Commission's allegations of misconduct were never answered in action number QG 3007 of 1994.  Ultimately, on 27 June, 1995, I gave default judgment in favour of the applicant Commission against Mr. Pearson and other associated companies and persons.  On 26 May, 1994 in action number QG 3007 of 1994, at the behest of the Commission, I appointed receivers and managers of the company.  They have been in control of the company since that time.  The evidence indicates that the former directors of the company have submitted notices of retirement to the Commission and no replacement directors have been nominated.  The receivers, on the evidence, have completed their task but hold a sum of money in respect of which no claims have been made, as yet, to them as receivers.  It is clear that the company has, for all practical purposes, ceased to operate and will not resume operations in the future.

I had some concern as to the appropriateness of the Commission obtaining a winding up of the company on the just and equitable ground.  However, it is clear that the Commission has standing to make such an application, the Commission having carried out an investigation into the affairs of the company pursuant to Division 1 of Part 3 of the ASC Law:  see ss. 464(1) and 462(2)(e) the Corporations Law.  The just and equitable ground traditionally has been the ground upon which contributories seek the winding up of the company often in circumstances in which there is a deadlock in the management of the company.  However, the power conferred on the Court to wind up a company on this particular ground is now recognised as conferring a wide discretion on the Court:  see Fisher v Southern Logistics Pty. Ltd. No. 2 (1985) 3 A.C.L.C. 534 and O'Donovan, McPherson - The Law of Company Liquidation, 3rd Ed., pp. 117-118.  It seems to me that in the circumstances of this case, given the history of unanswered misconduct in relation to the carrying on of the business of the company by the principals of the company and the fact that the company has no prospects of ever resuming business, it is appropriate to grant the relief sought.  Relief will also enable the receivers, who have effectively completed their functions, to be discharged and for the unclaimed moneys to be dealt with in accordance with Part 9.7 the Corporations Law.

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:        11 October, 1995