BP Australia Ltd v Amann Aviation Pty Ltd

[2008] FCA 1002

FEDERAL COURT OF AUSTRALIA

BP Australia Ltd v Amann Aviation Pty Ltd [2008] FCA 1002

BP AUSTRALIA LTD v AMANN AVIATION PTY LTD

VID3304 OF 1992

EMMETT J
26 JUNE 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	VID3304 OF 1992

BP AUSTRALIA LTD (ACN 004 085 616)
Plaintiff

AMANN AVIATION PTY LTD
Defendant

MARTIN RUSSELL BROWN
First Applicant

GREGORY WINFIELD HALL
Second Applicant

JUDGE:	EMMETT J
DATE OF ORDER:	26 JUNE 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The vacancy which will arise effective 30 June 2008 upon the resignation of the First Applicant as liquidator of Amann Aviation Pty Limited (In Liquidation) ACN 002 480 168 be filled by the appointment of the Second Applicant.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	VID3304 OF 1992

BP AUSTRALIA LTD (ACN 004 085 616) Plaintiff
AMANN AVIATION PTY LTD Defendant
MARTIN RUSSELL BROWN First Applicant
GREGORY WINFIELD HALL Second Applicant
JUDGE:	EMMETT J
DATE:	26 JUNE 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 30 September 1992, Amann Aviation Pty Limited (the Company) was ordered to be wound up by this Court.  On that day, Mr Martin Russell Brown was appointed liquidator of the Company.  Mr Brown wishes to resign as liquidator of the Company.  I have before me an application that the vacancy created by Mr Brown’s resignation be filled by the appointment of Mr Gregory Winfield Hall as liquidator of the Company.

2. The winding up of the Company has been complicated.  It has involved numerous court proceedings both in this Court and in the Supreme Court of New South Wales, some of which found their way to the High Court of Australia.  There are no longer funds available in the winding up, although there are at least theoretical assets of the Company consisting of the benefit of costs orders made in its favour in those proceedings.  There are also liabilities of the Company to other parties in those proceedings.  Each of the proceedings was commenced after the commencement of the winding up. Apart from liability for costs in such proceedings, the Company has pre-liquidation creditors in a significant amount. 

3. Mr Brown became an official liquidator in 1989, when he was a partner in the firm of Coopers & Lybrand.  That firm merged with Price Waterhouse on 1 July 1998 to form the combined firm of PriceWaterhouseCoopers.  Mr Brown became a partner in the merged firm.  On 30 June 2006, he retired as a partner of the firm and has continued as a consultant to enable him to finalize external administrations. 

4. However, Mr Brown apparently has now had enough and does not propose to renew his registration as a chartered accountant when that registration expires on 30 June 2008.  His consultancy to PriceWaterhouseCoopers will also cease on that day.  Theoretically, his registration as liquidator may well continue.  However, he does not consider that it is practicable for him to continue as liquidator of the Company past 30 June 2008.  Accordingly, he has resigned as liquidator of the Company with effect after 30 June 2008.  That will leave the Company without a liquidator. 

5. Section 473(1) authorizes a liquidator appointed by the Court to resign.  Clearly enough, the resignation is effective pursuant to s 473(1).  Section 473(7) provides that a vacancy in the office of a liquidator appointed by the Court must be filled by the Court.  Mr Gregory Winfield Hall, who is presently a partner at Price WaterhouseCoopers, has been an official liquidator since 11 November 1992 and is still registered as an official liquidator.  Mr Hall has completed a form of consent to act as liquidator of the Company. 

6. The application presently before the Court is an interlocutory process in the winding up of the Company.  By that process, Messrs Brown and Hall seek orders that, upon Mr Brown’s resignation as liquidator of the Company becoming effective, the vacancy so created be filled by the appointment of Mr Hall as liquidator.  I consider that the application should be acceded to and I propose to make an appropriate order to that effect.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:       21 July 2008

Counsel for the Applicants:	Mr A Martin
Solicitor for the Applicants:	NOTLawyers

Date of Hearing:	26 June 2008
Date of Judgment:	26 June 2008