Bredenkamp & Hughes [No 2] - [2023] WASC 321

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   BREDENKAMP & HUGHES [No 2] [2023] WASC 321
CORAM:   ACTING MASTER MCDONALD
HEARD:   ON THE PAPERS
DELIVERED          :   24 AUGUST 2023
FILE NO/S:   COR 58 of 2023
MATTER:   IN THE MATTER OF MAYBACH CONSULTING PTY LTD (IN LIQUIDATION)

EX PARTE
DANIEL JOHANNES BREDENKAMP & BRIAN KEVIN HUGHES as joint and several liquidators of MAYBACH CONSULTING PTY LTD (IN LIQUIDATION)
Plaintiffs

Catchwords:

Corporations - Winding up - Liquidators - Order for release of liquidator and deregistration of company - All known assets of company realised - Dispensation of requirement under r 7.5(6) of Supreme Court (Corporations) Rules 2004 (WA) - Corporations Act 2001 (Cth) s 480(d)

Legislation:

Corporations Act 2001 (Cth) s 480(d)
Corporations Regulations 2001 (Cth) reg 5.6.71
Supreme Court (Corporations) Rules 2004 (WA) r 7.5

Result:

Application granted

Representation:

Counsel:

Plaintiffs

No appearance

Solicitors:

Plaintiffs

Blackwall Legal LLP

Case(s) referred to in decision(s):

Ex parte Daniel Johannes Bredenkamp & Brian Kevin Hughes as joint and several liquidators of Maybach Consulting Pty Ltd (In Liquidation) [2023] WASC 179
Re RR Impex Pty Ltd (In Liq) [2013] NSWSC 1667

ACTING MASTER MCDONALD:

Summary

By originating process filed on 6 April 2023 (Application), the first and second plaintiffs as liquidators (Liquidators) of Maybach Consulting Pty Ltd (In Liquidation) (Company) sought orders under s 488(2) and s 480(d) of the Corporations Act 2001 (Cth) (Act), reg 5.6.71 of the Corporations Regulations 2001 (Cth) (Regulations) and r 1.3 and r 7.5(6) of the Supreme Court (Corporations) Rules 2004 (WA) (Rules) in relation to the Company. The Application was advanced in two parts.
On 25 May 2023, I made orders under s 488(2) of the Act granting special leave for the Liquidators to make a distribution of the surplus in winding up the Company to its contributories and dispensed with certain notice requirements under the Regulations and Rules. Those reasons can be found at Ex parte Daniel Johannes Bredenkamp & Brian Kevin Hughes as joint and several liquidators of Maybach Consulting Pty Ltd (In Liquidation) (First Reasons).[1] I ordered that the balance of the Application otherwise be adjourned.
[1] Ex parte Daniel Johannes Bredenkamp & Brian Kevin Hughes as joint and several liquidators of Maybach Consulting Pty Ltd (In Liquidation) [2023] WASC 179.
The surplus having been distributed, I am now dealing with the balance of that Application. The Liquidators seek orders that they be released as liquidators of the Company and the Company be deregistered by the Australian Securities and Investments Commission (ASIC) pursuant to s 480(d) of the Act.
The Liquidators relied on:
(a)affidavits sworn by Daniel Johannes Bredenkamp on 6 April 2023 (First Bredenkamp Affidavit), 2 May 2023 (Second Bredenkamp Affidavit) and 30 June 2023 (Third Bredenkamp Affidavit);
(b)affidavits affirmed by Belinda Sarah Giles on 13 April 2023 (First Giles Affidavit) and 2 May 2023 (Second Giles Affidavit); and
(c)an affidavit affirmed by Amanda Kelly Gardiner on 30 June 2023 (Gardiner Affidavit).

Background

The following background…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] WASC 321
Decision Date

CaseChat Overview and Summary

The application in Bredenkamp & Hughes [No 2] was brought by the liquidators of Maybach Consulting Pty Ltd (In Liquidation) seeking orders for their release and the deregistration of the company. The application was heard by Acting Master McDonald in the Supreme Court of Western Australia. The liquidators sought relief under section 480(d) of the Corporations Act 2001 (Cth), which allows for the release of liquidators and deregistration of a company when all known assets have been realised and distributed. Additionally, the liquidators requested dispensation from the requirement to serve updated accounts on creditors, as per rule 7.5(6) of the Supreme Court (Corporations) Rules 2004 (WA).

Acting Master McDonald considered the liquidators' evidence, including affidavits and financial statements, and was satisfied that all known assets had been realised and distributed. The court noted that the sole creditor, the Australian Taxation Office, had been paid in full, and no objections to the liquidators' release had been received. Given the simplicity of the case, involving a single member, creditor, and contributory, the court found it appropriate to dispense with the requirement to serve updated accounts on creditors. The court granted the application for the liquidators' release and ordered the Australian Securities and Investments Commission to deregister the company. Additionally, the court dispensed with the requirement to serve updated accounts on creditors, considering the circumstances of the case.

The final orders of the court were that the plaintiffs be released as joint and several liquidators of Maybach Consulting Pty Ltd (In Liquidation) and that the Australian Securities and Investments Commission deregister the company. The requirement to serve updated accounts on creditors was dispensed with, and the liquidators' costs and expenses were to be treated as costs in the liquidation and paid out of the company's assets.

Orders