FEDERAL COURT OF AUSTRALIA
CORPORATIONS – application under s 459B of the Corporations Law to wind up a company in circumstances where it is being wound up voluntarily – application principally for purpose of displacing voluntary liquidator with a liquidator appointed by the Court – whether applicant’s belief that the liquidator would not act independently was reasonable – whether reasonableness of belief concerning lack of independence of liquidator made out.
Corporations Law s 459B
City & Suburban Pty Ltd v Michael John Morris Smith (Liquidator of Compac (Aust) Pty Ltd (In Liquidation), unreported, Merkel J, 9 July 1998
Commonwealth v Irving (1996) 19 ACSR 459
Advance Housing Pty Ltd (in liq) v Newcastle Classic Developments Pty Ltd (1994) 14 ACSR 230
CITRIX SYSTEMS, INC v TELESYSTEMS LEARNING PTY LTD (IN LIQUIDATION)
NG 3120 of 1998
MOORE J
31 AUGUST 1998
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 3120 of 1998
BETWEEN:
CITRIX SYSTEMS, INC
APPLICANTAND:
TELESYSTEMS LEARNING PTY LTD (IN LIQUIDATION)
RESPONDENTJUDGE:
MOORE J
DATE OF ORDER:
31 AUGUST 1998
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
Telesystems Learning Pty Ltd (in liquidation) be wound up by this Court under the provisions of the Corporations Law
Mr John Gibbons of Ernst & Young an official liquidator, be appointed the liquidator of the corporation
Subject to further order the Applicant’s costs (including reserved costs, if any) be taxed and reimbursed out of the property of the corporation in accordance with s 466(2) of the Corporations Law.
Order 3 is to take effect seven days from the date of judgment.
Liberty to apply.
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
NG 3120 of 1998
BETWEEN:
CITRIX SYSTEMS, INC
APPLICANTAND:
TELESYSTEMS LEARNING PTY LTD (IN LIQUIDATION)
RESPONDENT
JUDGE:
MOORE J
DATE:
31 AUGUST 1998
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Introduction
On 30 June 1998 an application was filed by Citrix Systems, Inc (“Citrix”) under s 459P of the Corporations Law (“the Law”) seeking an order under s 459B that Telesystems Learning Pty Ltd (formerly known as Omega Computer Systems Pty Ltd (“Omega”)) be wound up in insolvency. That application was accompanied by a notice of motion seeking the appointment of a provisional liquidator. The application was returnable on Friday, 31 July 1998 and the notice of motion was returnable on 1 July 1998. Both the application and notice of motion were served on Omega on 1 July 1998. Also on 1 July 1998 Mr John Vouris was appointed an administrator of Omega. On 2 July 1998 Branson J refused to appoint a provisional liquidator and on 29 July 1998 a meeting of creditors resolved to place Omega into voluntary liquidation and to appoint Vouris as voluntary liquidator. This brief outline serves to illustrate the issue raised in these proceedings. It is whether the Court should make an order under s 459B of the…
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- Case
- [1998] FCA 1050
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the applicant was entitled to have the respondent wound up and an official liquidator appointed, and whether the applicant was entitled to have its costs reimbursed from the property of the respondent. The court had to consider the relevant statutory provisions and case law to determine whether the applicant had satisfied the requirements for the winding up of the respondent and the appointment of an official liquidator.
The court found that the applicant had satisfied the requirements for the winding up of the respondent and the appointment of an official liquidator. The court noted that the respondent had failed to pay the amount owed to the applicant and that there were sufficient grounds to justify the winding up of the respondent. The court also found that the applicant was entitled to have its costs reimbursed from the property of the respondent. The court ordered that the respondent be wound up and that Mr John Gibbons of Ernst & Young be appointed the liquidator of the corporation. The court further ordered that the applicant's costs be taxed and reimbursed out of the property of the corporation.
Orders
Orders of the court
1.
Telesystems Learning Pty Ltd (in liquidation) be wound up by this Court under the provisions of the Corporations Law
2.
Mr John Gibbons of Ernst & Young an official liquidator, be appointed the liquidator of the corporation
3.
Subject to further order the Applicant’s costs (including reserved costs, if any) be taxed and reimbursed out of the property of the corporation in accordance with s 466(2) of the Corporations Law.
4.
Order 3 is to take effect seven days from the date of judgment.
5.
Liberty to apply.
Note:
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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