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 facts are largely taken from the First Reasons.[2]
[2] First Reasons [3] - [10].
On 19 November 2019, the Federal Court made orders winding up the Company and appointing the plaintiffs as Liquidators. Mr John Arbuckle is the sole director and shareholder of the Company. There has been no transfer of shares in the Company since the Liquidators' appointment, nor any order made by the Supreme Court of Western Australia or the Federal Court of Australia altering the Company's register of members.
The assets of the Company included a vehicle, cash and 500,000 fully paid ordinary shares in the capital of Catalyst Metals Limited.
The liquidation and winding up of the Company came before the Supreme Court of Western Australia in COR 211 of 2022 where orders were made by Hill J authorising the sale of shares held in Catalyst Metals Limited and the distribution of the proceeds in accordance with pt 5.6 of the Act.
Following the orders in COR 211 of 2022, the Liquidators (or their agents) on 9 December 2022, provided a copy of the orders made in COR 211 of 2022 to ASIC, the Australian Taxation Office (ATO) (a creditor of the Company) and to Mr Arbuckle.
On 17 January 2023, the Liquidators sold the Company's shares in Catalyst Metals Limited for $350,000. Following the sale of the shares, the Company held $367,622 in cash comprised of the proceeds of the sale of a Company vehicle, the proceeds of a taxation refund and the proceeds of the sale of shares. The Liquidators are unaware of any other assets of the Company that have not been realised.
The only known creditor of the Company was the ATO. A proof of debt dated 4 December 2019 and a notice to the Liquidators dated 18 May 2021 indicated that the debt owed to the ATO was $193,307.97. The Liquidators received no further proof of debt from any other creditor following a call for proof of debts between 9 November 2022 and 23 January 2023.
On 7 March 2023, the Liquidators paid the ATO its debt of $268,930.52 in full, being $193,307.97 in satisfaction of the amount in the proof of debt and $75,622.55 in interest pursuant to s 563B of the Act.
On 13 April 2023, the ATO refunded the interest payment of $75,622.55 to the Company. As of 2 May 2023, the Liquidators estimated a surplus of approximately $89,928.12 to distribute to the Company's sole member Mr Arbuckle.
On 6 April 2023, the Liquidators filed the Application in this court seeking special leave to distribute the surplus in the winding up of the Company. On 25 May 2023, I made orders granting special leave and on 20 June 2023, the Liquidators distributed the surplus in the winding up of the Company (in the sum of $90,718.32) to Mr Arbuckle.[3]
[3] Third Bredenkamp Affidavit [16], 'DJB64'.
Application under s 480 of the Corporations Act
Section 480(d) relevantly provides that, where a liquidator has realised all of the company's property or so much of that property as can, in his or her opinion, be realised without needlessly protracting the winding up, and has distributed any final dividend to the creditors and adjusted the rights of the contributories among themselves and made any final return to the contributories, he or she may apply to the court for an order that he or she be released and that ASIC deregister the company. The effect of an order for release of a liquidator under s 480(d) is stated in s 481(3)‑(4) of the Corporations Act as follows:
(3) An order the Court releasing the liquidator discharges him or her from all liability in respect of any act done or default made by him or her in the administration of the affairs of the company or otherwise in relation to his or her conduct as liquidator, but any such order may be revoked on proof that it was obtained by fraud or by suppression or concealment of any material fact.
(4) Where the liquidator has not previously resigned or been removed, his or her release operates as a removal from office.
Rule 7.5(2) of the Rules requires the interlocutory process seeking the orders for release and deregistration to include:
(a)a notice stating that any objection to the release of the liquidator must be made by filing and service a notice of objection, in the prescribed form, within 21 days after the date of service of the interlocutory process; and
(b)a statement setting out the terms of s 481(3) of the Act.
Rule 7.5(6) requires that, unless the court otherwise orders, the liquidator must serve copies of the interlocutory process accompanied by specified documents on each creditor who has proved a debt in the course of the winding up and each contributory.
A court would ordinarily make an order releasing a liquidator if it was satisfied that the relevant notifications had been given, no creditors had objected, all other evidence contemplated by r 7.5 had been placed before the court and the hearing of the application was in a forum at which any claim that a liquidator had been deficient in performing their role could be advanced.[4] In addition, an order for deregistration of the company should also be sought with an order for a liquidator's release.[5]
[4] See Re RR Impex Pty Ltd (In Liq) [2013] NSWSC 1667 [3].
[5] See Re RR Impex Pty Ltd (In Liq) [2013] NSWSC 1667 [3], [11].
Evidence
Nothing turns on the fact the Application was made by originating process rather than by interlocutory process. The Application contains the notice prescribed by r 7.5(2)(a) of the Rules.
I am satisfied that the evidentiary requirements under r 7.5(3) are satisfied:
(a)the whole of the Company's property has been realised;[6]
[6] Third Bredenkamp Affidavit [18].
(b)no calls were made on contributories in the course of the winding up of the Company;[7]
[7] Third Bredenkamp Affidavit [19(a)].
(c)during the winding up of the Company, the Liquidators paid a dividend to:
(i)the sole creditor of the Company (the ATO) of $268,930.52 (of which $75,622.55 was refunded);[8] and
[8] Third Bredenkamp Affidavit [19(b)].
(ii)the sole shareholder of the Company (Mr Arbuckle) of $90,718.32;[9]
[9] Third Bredenkamp Affidavit [19(c)].
(d)there was no committee of inspection in relation to the winding up of the Company;[10]
[10] Third Bredenkamp Affidavit [20].
(e)ASIC has not caused the Company's books to be audited;[11]
[11] Third Bredenkamp Affidavit [21].
(f)no court had ordered a report on the accounts of the Liquidators to be prepared;[12]
[12] Third Bredenkamp Affidavit [22].
(g)no objection to the Liquidators' release has been received;[13]
[13] Third Bredenkamp Affidavit [23].
(h)the Liquidators submitted a report to ASIC under s 533 of the Act on 11 March 2021;[14]
[14] Third Bredenkamp Affidavit [24].
(i)the Liquidators are not aware of any circumstances that would warrant any further report on the affairs of the Company or any of its officers;[15]
[15] Third Bredenkamp Affidavit [26].
(j)no property was disclaimed in the course of the winding up of the Company;[16]
(k)the remuneration paid to the Liquidators was:
(i)$3,564 plus GST in disbursements for the period 19 November 2019 to 13 December 2019 as approved by the Company's creditor;[17]
(ii)$76,261 plus GST and disbursements for the period 14 December 2019 to 20 January 2023, as approved by the Company's creditor;[18]
(iii)$13,318.50 from 21 January 2023 to date, as approved by the Company's creditor;[19] and
(iv)determined based on the hourly rate charged for each person who carried out work in relation to the Company multiplied by the number of hours spent by each person on each of the tasks performed;[20]
(l)the only remaining costs the Liquidators anticipate are their remaining fees to finalise the administration in the amount of $6,681.50 and the balance of the legal fees in respect of this Application which have been deposited into the Liquidators' solicitors Practice Trust Account;[21] and
(m)the Application includes an order for the Company to be deregistered.
[16] Third Bredenkamp Affidavit [19(d)].
[17] First Bredenkamp Affidavit [77].
[18] First Bredenkamp Affidavit [77(b)], [78], [80(a)], 'DJB53'.
[19] First Bredenkamp Affidavit [80(b)], [81], 'DJB53'; Third Bredenkamp Affidavit [28].
[20] First Bredenkamp Affidavit [82]; Third Bredenkamp Affidavit [29].
[21] Third Bredenkamp Affidavit [28], [30] - [31].
I am satisfied that the Third Bredenkamp Affidavit includes the disclosure prescribed by r 7.5(4) of the Rules.[22]
[22] Third Bredenkamp Affidavit [32] - [33].
The Liquidators have provided an updated statement of the Company's financial position and a summary of the receipts and payments in the winding up of the Company.[23]
[23] Third Bredenkamp Affidavit [35], [37], 'DJB65', 'DJB66'.
Dispensation order
The Liquidators also seek an order dispensing with the requirement to serve updated accounts on creditors of the Company pursuant to r 7.5(6) of the Rules. The court's power to dispense with that requirement is found in that rule, which begins with the phrase 'unless the Court otherwise orders'.
This matter involves a single member, a single creditor paid out in full, and a single contributory who received a dividend of the surplus in the winding up of the Company. It is therefore appropriate to dispense with the requirement to circulate accounts.
As the Liquidators have given notice of the Application to the ATO, ASIC and Mr Arbuckle, I am satisfied it is appropriate to dispense with the requirement to serve updated accounts on the Company's creditors under r 7.5(6) of the Rules.[24]
[24] First Giles Affidavit [4] - [10], 'BSG1', 'BSG2', 'BSG3'; Second Giles Affidavit [6] - [11], 'BSG4', 'BSG5', BSG6'; Gardiner Affidavit [4] - [9], 'AKG1', 'AKG2', 'AKG3'.
In these circumstances, I am satisfied by the evidence to which I have referred above that this is a proper case for the release of the Liquidators and an order that ASIC deregister the Company. Accordingly, I make the following orders.
Orders
Pursuant to s 480(d) of the Corporations Act 2001 (Cth), the plaintiffs be released as joint and several liquidators of Maybach Consulting Pty Ltd (In Liquidation) (Company) and the Australian Securities and Investments Commission deregister the Company.
The requirement in r 7.5(6) of the Supreme Court (Corporations) Rules 2004 (WA), that the plaintiffs serve updated accounts on creditors of the Company, be dispensed with.
The plaintiffs' costs and expenses of and incidental to this application are to be treated as costs in the liquidation of the Company and be paid out of the assets of the Company.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TM
Associate to Acting Master McDonald
24 AUGUST 2023
1
2
0