Carrello, in the matter of Skyspan Investments Pty Ltd (In Liq) v Skyspan Investments (In Liq) Pty Ltd

[2017] FCA 999

FEDERAL COURT OF AUSTRALIA

Carrello, in the matter of Skyspan Investments Pty Ltd (In Liq) v Skyspan Investments (In Liq) Pty Ltd [2017] FCA 999

File number:	WAD 597 of 2016
Judge:	BARKER J
Date of judgment:	24 August 2017
Catchwords:	CORPORATIONS – application for release of liquidator and termination of liquidation of company – where plaintiff seeks deregistration of company – ss 480 and 482(1) of the Corporations Act 2001 (Cth)
Legislation:	Corporations Act 2001 (Cth) ss 480, 482(1), 563B
Date of hearing:	Determined on the papers
Registry:	Western Australia
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Corporations and Corporate Insolvency
Category:	Catchwords
Number of paragraphs:	16
Solicitor for the Plaintiff:	Murfett Legal

ORDERS

WAD 597 of 2016

IN THE MATTER OF SKYSPAN INVESTMENTS PTY LTD (IN LIQUIDATION) ACN 114 180 219

BETWEEN:

GIOVANNI MAURIZIO CARRELLO IN HIS CAPACITY AS LIQUIDATORS OF SKYSPAN INVESTMENTS PTY LTD (IN LIQUIDATION) ACN 114 180 219

Plaintiff

AND:

SKYSPAN INVESTMENTS PTY LTD (IN LIQUIDATION) ACN 114 180 219

Defendant

JUDGE:	BARKER J
DATE OF ORDER:	24 AUGUST 2017

THE COURT ORDERS THAT:

1.The plaintiff be released as liquidator of the defendant.

2.ASIC deregister the defendant.

3.Costs of, and associated with, this application be paid as costs in the liquidation of the defendant.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BARKER J:

1. Mr Giovanni Maurizio Carrello, liquidator of the company, Skyspan Investments Pty Ltd (in liquidation) ACN 114 180 219, applies to terminate the liquidation of the company pursuant to s 482(1) of the Corporations Act 2001 (Cth).

2. Section 482(1) provides:

   Power to stay or terminate winding up

   (1)  At any time during the winding up of a company, the Court may, on application, make an order staying the winding up either indefinitely or for a limited time or terminating the winding up on a day specified in the order.

3. Although this application is brought under s 482(1), I consider, in the circumstances of this case, it is more appropriate for the Court to make the orders sought pursuant to s 480 of the Act, which states:

   Release of liquidator and deregistration of company

   When the liquidator:

   (a)  has realised all the property of the company or so much of that property as can in his or her opinion be realised without needlessly protracting the winding up, and has distributed a final dividend (if any) to the creditors and adjusted the rights of the contributories among themselves and made a final return (if any) to the contributories; or

   (b)  has resigned or has been removed from office;

   he or she may apply to the Court:

   (c)  for an order that he or she be released; or

   (d)  for an order that he or she be released and that ASIC deregister the company.

4. Mr Carrello was appointed as liquidator on 19 July 2011.

5. At the commencement of the liquidation of the company, the company had the following creditors as the trustee of the C & J Family Trust:

   ·Australian Taxation Office (ATO) in the amount of $132,496.00; and

   ·Telstra in the amount of $1,560.42.

6. In June 2016, after complying with the formal proof of debt adjudication process set out pursuant to the Act, the liquidator paid to the unsecured creditors of the company a first and final dividend which resulted in all the unsecured creditors being paid 100 cents in the dollar.

7. In circumstances where –

   ·all creditors of the company have been paid in full;

   ·all Mr Carrello’s fees and costs in administering the liquidation of the company have been paid in full;

   ·the liquidation of the company has been finalised; and

   ·the company had surplus funds in the amount of about $91,200 less the liquidator's fees and costs of this application,

   on 11 November 2016, the liquidator instructed his solicitors to apply to the Court to terminate the company's liquidation.

8. On 31 January 2017, the Deputy Commissioner of Taxation (Intervener) made an application to intervene in the application on the basis of outstanding general interest charge amounts allegedly owed to the ATO.

9. Settlement was reached with the Intervener. On 19 May 2017, the liquidator paid the ATO the sum of $70,000 in full and final satisfaction of all outstanding claims.

10. On 1 June 2017, the Intervener withdrew its objection.

11. On 12 July 2017, the liquidator paid $720.72 to Telstra in accordance with s 563B of the Act.

12. The liquidator has produced a true copy of the letter from the liquidator to Telstra dated 12 July 2017, enclosing a cheque for interest pursuant to s 563B of the Act.

13. After payment to the ATO, to Telstra and of legal costs, there are now no longer any creditors of the company, nor are there any further assets available in the liquidation of the company.

14. The liquidator has also produced a true copy of the Summary of the Liquidator's Receipts and Payments.

15. On the basis of the above, there are no further outstanding claims against the company.

16. Given that there are no longer any creditors of the company, and taking into account all the circumstances above, where there appears no suggestion the company is intended to have an afterlife following the winding up process, I consider it appropriate to make orders releasing the liquidator and deregistering the company.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.

Associate:

Dated:        24 August 2017