Best v Yellow Express Carriers Ltd

[2004] NSWSC 666

CITATION:	Best v Yellow Express Carriers Limited [2004] NSWSC 666
HEARING DATE(S):	16/07/04
JUDGMENT DATE:	16 July 2004
JURISDICTION:	Equity Division Corporations List
JUDGMENT OF:	Young CJ in Eq
DECISION:	Orders made.
CATCHWORDS:	CORPORATIONS [270]- Dissolution- Company dissolved in 1988 after voluntary winding up- Whether can be restored- 1988 liquidator showing no interest- Whether fresh liquidator should be appointed.
LEGISLATION CITED:	Companies Code 1981, ss 411(5), 458, 558 Corporations Act 2001, ss 503, 509, 601AH
CASES CITED:	Anglo Coal (Drayton Management) Pty Ltd [2004] NSWSC 604 Civil & Civic Pty Ltd v RW Bass Pty Ltd (1996) 20 ACSR 16 Donmasby v Albarran [2004] NSWSC 632 Parker v Australian Asbestos Pty Ltd (2002) 42 ACSR 138 Re KP Wee Investments Pty Ltd (1993) 12 ACLC 157 Shaw v Goodsmith Industries Pty Ltd (2002) 41 ACSR 556
PARTIES :	William Melville Best (P) Yellow Express Carriers Limited (D)
FILE NUMBER(S):	SC 3941/04
COUNSEL:	G Carolan (P)
SOLICITORS:	Turner Freeman (P)

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

YOUNG CJ in EQ

Friday 16 July 2004

3941/04 – BEST v YELLOW EXPRESS CARRIERS LIMITED

JUDGMENT

1 HIS HONOUR: This is an application to restore a de-registered and dissolved company so that the proceedings can be continued in the Dust Diseases Tribunal. The company was the subject of a voluntary winding up, Mr Peter Wood being the liquidator and it was dissolved and deregistered under s 411(5) of the Companies Code 1981. That occurred on 19 November 1988.

2 Under s 558 of the Companies Code 1981 (in contrast with s 459) there is no time limit on an application to restore the company. Section 458 would survive by virtue of the transitional provisions to the present day so that s 601AH of the Corporations Act 2001 enables the Court to restore it.

3 Accordingly, I do not have to go into the very severe problems that seem to exist if that fifteen-year period has expired before the application, which were touched upon in Re KP Wee Investments Pty Ltd (1993) 12 ACLC 157; Shaw v Goodsmith Industries Pty Ltd (2002) 41 ACSR 556 and Parker v Australian Asbestos Pty Ltd & Ors (2002) 42 ACSR 138.

4 As the company was in voluntary winding up rather than court appointed winding up, there has never been an order of a court discharging the liquidator so that one cannot apply Civil & Civic Pty Ltd v R W Bass Pty Ltd (1996) 20 ACSR 16. Accordingly, it would seem that if the company is restored Mr Wood will continue to be the liquidator.

5 Mr Wood has been served with the relevant papers and there has been no reaction from him at all. I can only infer that he has no further interest in the matter.

6 The company needs to have a liquidator and, in my view, in the circumstances where the voluntary liquidator has been discharged under section 509 of the Corporations Act 2001 or the equivalent in an earlier piece of legislation and when the Court is asked to restore the company shows no interest, there is sufficient cause shown under s 503 of the Corporations Act to remove that liquidator and appoint another liquidator. Of course, such removal does not suggest any misconduct whatsoever on the part of Mr Wood. It is a mere matter of expediency in the interests of the company and its creditors. Mr Richard James Porter has indicated he is prepared to be the liquidator and I appoint him.

7 Accordingly, the orders are:

1. Order that the Australian Securities and Investments Commission reinstate the registration of the defendant for the limited purpose of Dust Diseases Tribunal proceedings 172 of 2004.

2. Order that Peter James Wood be removed as liquidator of the defendant.

3. Order that Richard James Porter be appointed liquidator of the defendant.

4. Order that the plaintiff, within 14 days, notify Peter James Wood of these orders.

5. Order that the plaintiff pay the costs of the Australian Securities and Investments Commission assessed at $434 before this order is taken out.

6. Direct that the plaintiff notify the Australian Securities and Investments Commission upon the conclusion of the said Dust Diseases Tribunal proceedings in order that the company may again be deregistered.

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Postscript:

Since giving this judgment in open Court my attention has been directed to Anglo Coal (Drayton Management) Pty Ltd [2004] NSWSC 604 and Donmasby v Albarran [2004] NSWSC 632 which suggest that the words "for the limited purpose …" should not have been included in order 1.

PWY

Last Modified: 08/03/2004