Chanell, in the matter of CF Cornely Pty Ltd (ACN 072 787 181)
[2010] FCA 734
•2 July 2010
FEDERAL COURT OF AUSTRALIA
Chanell, in the matter of CF Cornely Pty Ltd (ACN 072 787 181) [2010] FCA 734
Citation: Chanell, in the matter of CF Cornely Pty Ltd (ACN 072 787 181) [2010] FCA 734 Parties: DAVID JOHN FRANK LOMBE AS TRUSTEE OF THE PROPERTY OF JANE HALEY CHANELL,
A BANKRUPT v CF CORNELY PTY LTD
(ACN 072 787 181)File number(s): NSD 646 of 2010 Judge: EMMETT J Date of judgment: 2 July 2010 Date of hearing: 2 July 2010 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 9 Counsel for the Plaintiff: J T Johnson Solicitor for the Plaintiff: TressCox Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 646 of 2010
IN THE MATTER OF CF CORNELY PTY LTD ACN 072 787 181
BETWEEN: DAVID JOHN FRANK LOMBE AS TRUSTEE OF THE PROPERTY OF JANE HALEY CHANELL, A BANKRUPT
PlaintiffAND: CF CORNELY PTY LTD (ACN 072 787 181)
Defendant
JUDGE:
EMMETT J
DATE OF ORDER:
2 JULY 2010
WHERE MADE:
SYDNEY
THE COURT:
1.DECLARES THAT the 2 ordinary fully paid shares in the capital of CF Cornely Pty Limited presently registered in the name of Jane Chong (also known as Jane Haley Chanell) have vested in David John Frank Lombe as Trustee of the Property of Jane Haley Chanell, a bankrupt, pursuant to s 58(1) and s 116(1) of the Bankruptcy Act 1966 (Cth).
2.ORDERS THAT, pursuant to section 175 of the Corporations Act 2001 (Cth), the register of members of CF Cornely Pty Limited be corrected to record that the 2 ordinary fully paid shares presently registered in the name of Jane Chong be registered in the name of David John Frank Lombe as Trustee of the Property of Jane Haley Chanell, such order to take effect forthwith.
3.DECLARES THAT it is just and equitable that CF Cornely Pty Limited be wound up.
4.ORDERS THAT CF Cornely Pty Limited be wound up pursuant to section 461(1)(k) Corporations Act 2001 (Cth).
5.ORDERS THAT Mark Levi be appointed official liquidator of CF Cornely Pty Limited.
6.ORDERS THAT the defendant pay the plaintiff's costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 646 of 2010
IN THE MATTER OF CF CORNELY PTY LTD ACN 072 787 181
BETWEEN: DAVID JOHN FRANK LOMBE AS TRUSTEE OF THE PROPERTY OF JANE HALEY CHANELL, A BANKRUPT
PlaintiffAND: CF CORNELY PTY LTD (ACN 072 787 181)
Defendant
JUDGE:
EMMETT J
DATE:
2 JULY 2010
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The plaintiff, Mr David Lombe, is a registered trustee in bankruptcy. He is the trustee in bankruptcy in respect of the bankrupt estate of Ms Jane Haley Chanell (the Bankrupt). The Bankrupt, who is also known as Jinghai Chong and Jane Chong, presented a Debtor’s Petition to the Official Receiver for the Bankruptcy District of New South Wales under s 55(2) of the Bankruptcy Act 1966 (Cth) (the Bankruptcy Act). The petition was accepted by the Official Receiver on 1 March 2010. Mr Lombe was appointed trustee of the property of the Bankrupt on that day.
The statement of affairs filed by the Bankrupt in support of her debtor’s petition disclosed that she is a shareholder of the defendant, CF Cornely Pty Ltd (the Company). Mr Lombe seeks orders under the Corporations Act 2001 (Cth) (the Corporations Act) in respect of shares in the capital of the Company registered in the name of the Bankrupt and an order for the winding up of the Company.
The Company was incorporated on 8 February 1996. An historical extract of information derived from the database maintained by the Australian Securities and Investments Commission (the Commission) discloses that the principal place of business of the Company is 2 Cook Road, Marrickville, NSW, 2204. The only director of the Company as shown in the historical extract is the Bankrupt, under the name Jane Chong. She has been a director of the Company since its incorporation. The Bankrupt is also shown as the secretary of the Company, having been appointed on 16 February 2001. The extract discloses that there are two issued shares in the capital of the Company held beneficially by the Bankrupt.
The Company is the registered proprietor of an estate in fee simple in the land known as 2 Cook Road, Marrickville being the land comprised in certificate of title volume 13943 folio 181. The Company acquired the property on 27 November 1998. There is no registered encumbrance in respect of the property. The Bankrupt carried on an embroidery business at that property. A statement of assets and liabilities of the Company as at 19 February 2010 indicates that the total realisable value of the Company’s assets exceeds $800,000 and that its liabilities are less than $200,000, indicating possible net assets of in excess of $600,000. The property is valued at $800,000.
Under s 1072B of the Corporations Act, a person entitled to shares in a company because of the bankruptcy of a shareholder may elect to be registered as the holder of the shares. Section 1072B(2) requires the company to register the person as the holder of the shares upon receipt of written and signed notice of election.
Mr Lombe is entitled to elect to be registered as the holder of the shares presently registered in the name of the bankrupt. However, since the Bankrupt is no longer capable of being a director or secretary of the Company and since Mr Lombe is not prepared to become an officer of the Company, he now seeks an order under s 175 of the Corporations Act that the Register of Members be corrected to record him as the holder of the shares presently registered in the name of the Bankrupt together with an order under s 461(1)(k) of the Corporations Act that the Company be wound up. Mr Mark Levi, an official liquidator, has consented to be appointed and to act as liquidator of the Company.
Clearly enough, the shares in the Company held by the Bankrupt have substantial value. That value is represented for the most part by the property situated in Cook Road, Marrickville. It is clearly in the interests of the creditors of the Bankrupt that the value of the shares be realised. That will best be achieved by sale of the property, which can be effected more conveniently in the winding up of the Company. The Company appears to have no business other than the holding of the property and the letting of it to the Bankrupt for the purposes of carrying on her business.
The Company has been duly served with Mr Lombe’s application and his affidavit in support of the application. The Commission has been notified of the application and has indicated that it does not wish to be heard on the application.
In all the circumstances, I consider that it is appropriate to make orders that Mr Lombe be registered as the holder of the shares in the Company and that the Company be wound up on the ground that it is just and equitable to do so. I propose to make a declaration that beneficial ownership of the shares in the Company held by the Bankrupt has vested in Mr Lombe and to order that the register of members of the Company be corrected to record Mr Lombe as the holder of the Bankrupt’s shares.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate:
Dated: 15 July 2010
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