Commonwealth v Hendon Industrial Park Pty Ltd
[1995] FCA 429
•9 JUNE 1995
C A T C H W O R D S
CORPORATIONS - provisional liquidator - circumstances leading to appointment - sufficiency of information to warrant appointment.
Income Tax Assessment Act 1936 (Cth)
Corporations Law
Corporate Law Reform Act 1992 (Cth)
Taxation Administration Act 1953 (Cth)
Commonwealth of Australia v Duncan [1981] VR 879
Carapark Industries Pty Ltd (In liq.) & Companies Act 1961 (No 1) [1967] 1 NSWR 337
Re Codisco Pty Ltd (1974) ACLC 27,897
Pitt v Bachmann; Re Lockyer Valley Fresh Foods Co-operative Association Limited (1980) ACLC 34,468 (FC)
Re Club Mediterranean Pty Ltd (1975) 11 SASR 481
Re Saldowa Pty Ltd (1986) 4 ACLC 200
Brimaud v Honeysett Instant Print Pty Ltd (1988) 6 ACLC 942.
Re Adnot Pty Ltd (1982) 1 ACLC 307
COMMONWEALTH OF AUSTRALIA Applicant
- and -
HENDON INDUSTRIAL PARK PTY LIMITED Respondent
O'LOUGHLIN
ADELAIDE
9 JUNE 1995
IN THE FEDERAL COURT OF AUSTRALIA )
)
SOUTH AUSTRALIAN DISTRICT REGISTRY )
)
GENERAL DIVISION ) No. SG 3050 of 1995
B E T W E E N:
COMMONWEALTH OF AUSTRALIA
Applicant
- and -
HENDON INDUSTRIAL PARK PTY LIMITED
Respondent
MINUTES OF ORDER
JUDGE MAKING ORDER : O'LOUGHLIN J.
WHERE MADE : ADELAIDE
DATE OF ORDER : 9 JUNE 1995
THE COURT ORDERS THAT:
Peter Ivan Macks of 14th Floor, 26 Flinders Street, Adelaide be and is hereby appointed the provisional liquidator of Hendon Industrial Park Pty Limited.
The applicant bring in short minutes of order specifying the powers of the provisional liquidator and a short description of the property of which the provisional liquidator is to take possession.
The costs of the application be paid by the respondent.
There be leave to speak to the minutes.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
SOUTH AUSTRALIAN DISTRICT REGISTRY )
)
GENERAL DIVISION ) No. SG 3050 of 1995
B E T W E E N:
COMMONWEALTH OF AUSTRALIA
Applicant
- and -
HENDON INDUSTRIAL PARK PTY LIMITED
Respondent
REASONS FOR JUDGMENT
Coram: O'Loughlin J.
Place: Adelaide
Date : 9 June 1995
On 5 May 1995, the applicant, the Commonwealth of Australia, claiming to be a creditor of the company, filed an application in this court under s459P of the Corporations Law ("the Law") claiming an order pursuant to that section that the respondent, Hendon Industrial Park Pty Limited ("Hendon") be wound up on the ground of its insolvency. The applicant contemporaneously moved on notice for the appointment of a provisional liquidator under subs472(2) of the Law.
The applicant's claim was that Hendon is indebted to it for income tax (and additional tax for an incorrect return) in an amount slightly in excess of $2.5M; to this sum there is additional tax for late payment, at the statutory rate, to 1 May 1995 so that the total amount claimed as at that date, pursuant to a notice of amended assessment for the year ended 30 June 1989 is $3,037,502.90. Having regard to the
provisions of s177 of the Income Tax Assessment Act 1936 (Cth) there can be no doubt that the applicant must be accepted as a creditor of Hendon. Lush J addressed the status of the Commissioner of Taxation, as a creditor in the liquidation of a company, in Commonwealth of Australia v Duncan [1981] VR 879. Speaking of the companies there under consideration, his Honour noted that they would not be able to pay or provide for payment of their debts to the Commissioner at any foreseeable time. His Honour then went on to say:
"If appeals against the assessment succeed, the companies will be solvent, but in the meantime it would not only be unrealistic, but it would be contrary to the provisions of the Tax Act to proceed with the liquidations as if no debts were owing. The reality is not that the debts will only be owed if the applicant [i.e. the Commissioner of Taxation] succeeds in the appeals: they are owing and the companies will only be solvent if the companies succeed." (at 884)
It is doubtful whether Hendon would be solvent even if the assessment is set aside on review or on appeal; subject to that observation, I respectfully adopt his Honour's comment. In addition s204 of the Income Tax Assessment Act provides that any tax assessed is due and payable on the date specified in the notice and ss14ZZM and 14ZZR of the Taxation Administration Act 1953 (Cth) make it clear that an application for review or on appeal will not prevent the institution of recovery proceedings for the outstanding tax.
On 24 May 1995, after the benefit of argument from counsel for the applicant and for Hendon on that and the
preceding day, I ordered the appointment of a provisional liquidator. On the same day I also dismissed an application by Hendon in action SG No.3054 of 1995 to set aside a statutory demand that had been served on it at the suit of the applicant in respect of the unpaid tax. I then adjourned the application for a winding up order to Tuesday 30 May 1995 for further argument. On that day Mr Sulan QC appeared for Hendon; he informed the court that Hendon had, since the matter was last before the court, changed its solicitors and that he had only been retained in the preceding 24 hours. On his application, and so that the company's new advisers could complete their investigations, I further adjourned the application to wind up Hendon.
On 24 May 1995, I also had before me the proceedings in action No.3052 of 1995. Reference will be made to that matter in more detail at a later stage; it is sufficient to say that it involved Hendon and Bruce James Carter, the person who had earlier been appointed by the directors of Hendon to be the administrator of the company.
I stated on 24 May that I would publish reasons in support of the orders that I made on that day. I now do so.
Hendon is one of a group of a hundred or so companies known as "the Emanuel Group". It is common ground that it has been dormant since about 1988. It is also common ground that
its dispute with the Commissioner of Taxation derived from a very successful sale of some real estate in the 1988-1989 financial year. The Commissioner assessed the profit as taxable income. The company lodged an objection but the Commissioner has disallowed it. I am informed and accept, for the purposes of these proceedings, that it is the intention of Hendon to file and prosecute an appeal in due course. The reason behind the raising of the amended assessment of income tax is not a relevant matter in these proceedings; it has been mentioned only because it explains why the company has been dormant since the 1989 financial year; apparently it was specially incorporated to acquire the relevant land and, upon the disposal of that asset, no further use could be found for it.
An affidavit of Allan Jeffery Goss, a taxation officer, dated 5 May 1995, was filed in support of the application for the appointment of a provisional liquidator and read during the course of the proceedings. In paragraph 5 of that affidavit, Mr Goss deposed that on 23 March 1995 Bruce James Carter ("Mr Carter"), was appointed the administrator of forty of the companies in the Emanuel Group. Six days later, on 29 March 1995, Mr Carter was also appointed administrator of Hendon. On 13 April 1995, Johnson Winter and Slattery wrote Mr Carter confirming that they acted as solicitors for the forty companies of which he had been appointed administrator. The letter then proceeded to state:-
"Please note that this firm has been retained by the above companies for the purposes of formulating deeds of company arrangement hopefully to be propounded by each of these companies with their respective creditors.
Please note that we also have been instructed to act for Hendon Industrial Park Pty Ltd but the proposed arrangement set out hereunder is not put forward on behalf of that company. There is no proposal to be propounded by Hendon Industrial Park Pty Ltd other than that the voluntary administration currently in place be terminated and control of the company be returned to the directors.
The proposed deeds of company arrangement will be formulated on the basis that the participating creditors will be paid out of one pool of funds notwithstanding that the total group of creditors are not common to every company."
At a later stage of the letter there is the following important comment:-
"It should be noted that the internal creditors will not participate in the arrangements. The total value of their claims is approximately $230 million dollars."
I find, for the purposes of the proceedings that are presently before the court, based on the contents of Mr Goss' affidavit and the annexures thereto - and in particular the report of Mr Carter dated 20 April 1995 - that Emanuel Management Pty Ltd, one of the forty companies to which reference has earlier been made, is indebted to Hendon in the sum of $1,993,051. I accept, therefore, that should such a deed of arrangement as is proposed by Johnson Winter and Slattery be executed, Hendon would forego its entitlements (if any) to seek repayment of the debt owing to it by Emanuel
Management Pty Limited.
Provision is made in Part 5.3A of the Law for a company to submit itself to the control of an administrator. That Part was inserted by the Corporate Law Reform Act 1992 (Cth), No 210 of 1992, and became effective on 23 June 1993. It is entitled "Administration of a Company's Affairs with a View to Executing a Deed of Company Arrangement". The object of the Part is set out in s435A:
"The object of this Part is to provide for the business, property and affairs of an insolvent company to be administered in a way that:
(a)maximises the chances of the company, or as much as possible of its business, continuing in existence; or
(b)if it is not possible for the company or its business to continue in existence - results in a better return for the company's creditors and members than would result from an immediate winding up of the company."
Section 436A empowers a company to appoint an administrator, but only if the directors first resolve that the company is or will become insolvent. The intended duration of the administration is short. Although powers are reserved to the court to intervene, the normal outcome of the administration of a company is that a deed of company arrangement will be executed by the company or the creditors of the company will either resolve that the administration should end or that the company should be wound up.
An administrator, following his or her appointment, must convene a meeting of creditors for the purpose of considering the appointment of a committee of creditors and that meeting must be held within five business days after the administration begins: s436E. Section 438A should be set out in full for it shows up the nature of the role of an administrator of a company:
"As soon as practicable after the administration of a company begins, the administrator must:
(a)investigate the company's business, property, affairs and financial circumstances; and
(b)form an opinion about each of the following matters:
(i)whether it would be in the interests of the company's creditors for the company to execute a deed of company arrangement;
(ii)whether it would be in the creditors' interests for the administration to end;
(iii)whether it would be in the creditors' interests for the company to be wound up."
In addition to the meeting of creditors referred to above (the first meeting) s439A requires the administrator to convene a second meeting of creditors. This meeting must be held within 5 business days after the end of "the convening period". The convening period is normally 21 days "beginning on the day when the administration begins" s439A(5): this period is extended by 7 days if Christmas or Easter intervenes and may otherwise be extended by order of the court. This second meeting may be adjourned from time to time up to a maximum of 60 days after the first day on which the meeting was held: s439B(2).
The notice convening the second meeting is to be accompanied by a copy of the administrator's report about the company's business and financial circumstances and a statement setting out the administrator's opinion and reasons about each of the three matters that are the subject of pars(a), (b) and (c) of s438A, that is whether the company should execute a deed, whether the administration should end or whether the company should be wound up. Section 439C ordains that at the second meeting the creditors may resolve upon one or other of these three courses.
Division 10 of Part 5.3A sets out the provisions that flow as a consequence of the company's creditors resolving that the company execute a deed of company arrangement. Division 12, on the other hand, deals with the circumstances where the creditors resolve under par439C(c) that the company be wound up. But Part 5.3A of the Law appears to be silent on the consequences that flow from a resolution under s439C(b) that the administration should end. Perhaps that is because the directors of the company would resume control of its affairs and the legislature considered it unnecessary to state the obvious.
In complying with his obligations to convene the second meeting, Mr Carter reported to the creditors of Hendon at their meeting on 1 May 1995 that the company was insolvent, that he recommended the appointment of a liquidator following the termination of the administration and that he recommended
against returning Hendon to the control of its directors. An important question arose at the second meeting with respect to the claims of six alleged creditors ("the disputed creditors"). Those claimants and their alleged debts were as follows:-
Lorelle Joy Tomkinson $3,172,174.00
Sly & Weigall $ 137,041.79
Cardno & Davies $ 640.00
Schomburgk Kay & Partners Pty
Ltd $ 32,825.48
Thomsons $ 117,446.71
Coopers & Lybrand, Adelaide $ 113,693.15
The Commissioner of Taxation, by prior letter and in person at the meeting of 1 May, challenged each of those debts alleging that they were not debts of Hendon. Lorelle Joy Tomkinson is the former wife of Mr Guiseppe Emanuel who is the principal director of most, if not all, of the companies in the Emanuel Group, including Emanuel Management and Hendon. Mr Carter said at the meeting of 1 May that he had examined the matrimonial property settlement involving Mr Emanuel and his former wife and that he was satisfied that it supported her claim to be a creditor of the company. Mr Carter also allowed the other disputed creditors other than Schomburgk Kay & Partners Pty Ltd to vote at the meeting. A resolution was proposed at the meeting by the five remaining disputed creditors that the administration of Hendon be terminated and that it be returned to the control of its directors. The Deputy Commissioner of Taxation with a debt of $3,037,502.90 voted against the resolution; the disputed creditors whose
debts were slightly in excess of $3.5M voted for the resolution and it was declared passed. None of the disputed creditors were personally present at the meeting of 1 May other than Thomsons, a firm of solicitors, who were represented either by a partner or an employee of that firm - it is not clear which. The remaining disputed creditors were represented by a Mr Christie, a partner in the firm of Johnson Winter and Slattery, who, as I have earlier noted, were then the solicitors for Hendon.
In action No SG 3052 of 1995 the Commonwealth of Australia has challenged the decision of Mr Carter whereby he admitted the proofs of debt of the five disputed creditors. The Commonwealth has claimed that they should not have been admitted to proof at all. In addition, there is a claim in those proceedings that the court should order that the resolution that the administration should end be declared "lost or alternatively be set aside".
The position with respect to the financial affairs of Hendon and in particular the identity of its creditors is unsatisfactory. In its annual return for the year ended 30 June 1994 the company records in item 13 "key financial data" that it has "nil" current liabilities; that report, which is dated 2 March 1995, is purportedly signed by Rudolf George Tonkin, a director of Hendon. Mr Carter in his report to the creditors stated:
"The report as to affairs submitted by Mr Tonkin indicates that the estimated realisable value of Hendon's assets is nil. In addition the report lists only one creditor in the amount of $2,507,664, which is disputed by Hendon."
It was agreed by counsel from the bar table that this debt related to the income tax assessment; the agreement of counsel accords with Mr Carter's understanding: (see page 8 of his report). It is significant that no reference to the disputed creditors appears to have been made by Mr Tonkin to Mr Carter. Furthermore, when this matter first came before the court on 10 May 1995, the directors of the company proffered to the court an undertaking that they would not in any way deal with the assets of the company otherwise than in the ordinary course of business except with the leave of the court and subject to some conditions to which reference will be made at a later stage. As part of the undertaking, the directors attached a copy of Hendon's balance sheet as at 30 June 1994. That balance sheet records that the company had no current liabilities and that non current liabilities amounted to only $9. In the undertaking, reference was made to the attached balance sheet with the comment "the financial position of Hendon has altered since that date in the following manner". Thereafter, reference was made to three issues, each of which will require some consideration but none of those issues referred to the existence of any of the disputed debts. Having regard to the fact that the company has been dormant for over six years, it is difficult to imagine how the company
could have incurred debts of this magnitude. The debts (other than that which is said to be owing to Ms Tomkinson) are said to be amounts owing to professional advisers such as solicitors, accountants and engineers. As to those, Dr Baxter, counsel for Hendon, suggested from the bar table that an inference might be drawn that they were group debts for which Hendon had responsibility as a guarantor. Despite the first appeal of this submission it is significant that no evidence, documentary, oral or otherwise was forthcoming to support it. In fact, there is material in the papers that might, on investigation, contradict this inference. The various proofs of debt do not assist; they offer very little in the way of information; some suggest the actual provision of services, others are silent, at least as to the detail of their claim. But none of the invoices or other primary material is addressed to Hendon and none of the proofs address the possibility of Hendon being a creditor by way of guarantee or indemnity.
In his report to the creditors, Mr Carter stated that "loan debtors are listed at a book value of $4,670,530 with an estimated realisable value of nil". He added that "according to the Report as to Affairs [that had been supplied to him by Mr Tonkin], these debts were the only assets of the company". The names of the company's debtors and the amounts allegedly owing by them to Hendon are as follows:
$
Emanuel Management Pty Ltd 1,993,051
Navicio Unit Trust 262,188
Taurus Trust 2,077,291
Baralaba Pty Ltd 251,622
Keem Pty Ltd 86,378
$4,670,530
It is necessary to say something about each of these assets.
Emanuel Management
Rudolf George Tonkin has sworn an affidavit on 17 May 1995 in action SG No 3054 of 1995 - that being the action in which Hendon sought an order setting aside the statutory demand that the applicant had served upon it. In par27 of that affidavit Mr Tonkin acknowledged that he was aware that Emanuel Management proposed to propound a deed of company arrangement with its creditors at a meeting of its creditors scheduled to take place on 30 May 1995. He claimed that he was unaware of the terms of the proposal and, in particular, he did not allude to the proposition that internal or group creditors would not participate in any arrangement. As that suggestion emanated from a letter from Johnson Winter and Slattery who are also the solicitors for Hendon (of which he is a director) this lack of knowledge is curious, to say the least. It is difficult to imagine how it would be in the best
interests of Hendon to participate in an arrangement which would deny it any dividend in respect of a debt of almost $2M and it is impossible to imagine how it would be in the best interests of Hendon's creditors.
Navicio Unit Trust
Mr Carter reported that Navicio Pty Ltd is the trustee of the Navicio Unit Trust and that his enquiries suggested that this debt arose "as a result of Hendon paying various expenses on behalf of Navicio prior to 1988". He added that approximately two weeks prior to his appointment, the shares in the company and the units in the trust were sold to Baralaba Pty Ltd and Keem Pty Ltd for $338,000. The debts of $251,622 and $86,378 allegedly owing by those companies to Hendon total $338,000, thereby suggesting that Hendon was the sole owner of the shares and the units. But that conflicts with other information in the report which suggests that Hendon might only have owned 90% of those assets. Mr Carter referred in his report to information which suggested that Hendon might have guaranteed debts of $338,000 that were owing by Navicio to Elfic Ltd. It is suggested that the purchase price owing by Baralaba and Keem was channelled to Elfic Ltd thereby satisfying Navicio's obligation as a primary debtor and Hendon's liability as a guarantor. If that be correct, Navicio would now owe Hendon the original $262,188 and a further $338,000. Mr Carter reported that he wished to examine this matter further. What has been summarised above
should be assessed alongside the explanation of the Navicio transaction that the directors gave in their undertaking to the court. They said:
"(a)on 1 May 1995 Hendon sold its 9 shares in Navicio Pty Ltd ACN 010616690 to entities associated with Rudolf George Tonkin and Ewan Bruce for a total consideration of $9.00;
(b)on 1 May 1995 Hendon sold its 90 units in the Navicio Unit Trust to entities associated with Rudolf George Tonkin and Ewan Bruce for a total consideration of $90.00; and
(c)on 1 May 1995 Navicio Pty Ltd paid the sum of approximately $349,000 to EFG Limited pursuant to the terms of a guarantee that Navicio Pty Ltd had provided to EFG Limited on account of an indebtedness due by Hendon to EFG Limited in a similar sum. In consideration of that payment being made by Navicio Pty Ltd to EFG Limited, Hendon agreed to forgive the indebtedness due by Navicio Pty Ltd to Hendon in the sum of approximately $260,000."
These events of 1 May 1995 were implemented by the directors of Hendon immediately after the creditors' resolution that the administration should end. Which version of the facts is correct - the administrator's or the directors'? The matter needs to be investigated.
The Taurus Trust
Another of Hendon's assets is a debt of approximately $2M that is owing to it by the Taurus Trust. In pars28 and 29 of his affidavit of 17 May Mr Tonkin had this to say about that debt:
"28, The Taurus Trust is a trust in which my family and myself are the principal beneficiaries. The Taurus Trust and entities associated with
it hold significant assets which are substantially pledged by way of security in favour of financiers. If the assets of the Taurus Trust and its associated entities were liquidated in the current market in a forced sale situation I would be gravely concerned that the proceeds may be insufficient to meet the obligations to the financiers. However I believe that the assets of the Taurus Trust and its associates if given an opportunity to mature could develop into assets of considerable value in which myself and my family would have a worthwhile level of equity.
29.Accordingly, if Hendon is wound up and a liquidator then seeks to call in the Taurus Trust receivable, it would have the effect of causing my personal corporate structure to collapse and possibly be placed into a position where the realisable value of its assets would be insufficient to meet debts due to secured creditors. Accordingly I believe that I would be very substantially prejudiced in the event that a liquidator is appointed to Hendon if it is ultimately established that the alleged indebtedness due to the Commissioner pursuant to the amended assessment issued on 29 November 1993 is not due at all."
This is a most unusual plea; it seems that Mr Tonkin believes that his personal finances and future are to be the yardstick in determining whether there is a need to preserve this particular asset of Hendon. I am of the opinion that the information that is set out in those paragraphs would cause concern to a creditor; it is the sort of information that would cause a creditor to embark upon a series of investigations so that it could assure itself that everything reasonable was being done to protect his asset. The financial circumstances of the Taurus Trust warrant investigation.
The power to appoint a provisional liquidator of a
company is found in subs472(2) of the Law:
"The court may appoint an official liquidator provisionally at any time after the filing of a winding up application and before the making of a winding up order or, if there is an appeal against a winding up order, before a decision in the appeal is made."
A provisional liquidator's primary duty is to preserve the status quo "with the least possible harm to all concerned so as to enable the court to decide after a proper and final hearing whether or not the company should be wound up.": Carapark Industries Pty Ltd (In liq.) & Companies Act 1961 (No 1) [1967] 1 NSWR 337 at 341 per Street J (as he then was). See also Re Codisco Pty Ltd (1974) ACLC 27,897 at p27,906. The appointment of a provisional liquidator is a serious step as a provisional liquidator may exercise many functions and powers including (in appropriate cases) the power to carry on a company's business: see subss472(3) and (4); and see further Pitt v Bachmann; Re Lockyer Valley Fresh Foods Co-operative Association Limited (1980) ACLC 34,468 (FC).
Bright J identified some of the many factors that must be given urgent consideration on an application for the appointment of a provisional liquidator when he said in Re Club Mediterranean Pty Ltd (1975) 11 SASR 481 at 484:-
"Where the petitioning creditor makes the application and the company opposes it the court must come to a conclusion as to the degree of urgency and of need established by the petitioning creditor and the balance of convenience. The circumstances will vary. Sometimes the company may be continuing to trade at a loss or to incur further liabilities. Sometimes assets may require to be protected from dissipation or from seizure or
encumbrance. Sometimes the right of the company to assets or the right to exercise an option, enforce a contract, reject a claim or otherwise to act for the apparent benefit of the company may be in issue and the issue may need to be resolved or carried forward or rights may need to be protected as a matter of urgency. Sometimes the company may be paralysed by a dispute between shareholders or directors, or by some form of interim court order. Sometimes there may be a conflict of interest between a director or principal officer of the company and the company itself with regard to some right of property and that conflict may render it difficult for the company's rights to receive proper protection."
As his Honour then went on to note, his remarks did not constitute an exhaustive list for, as he said, "commercial affairs are infinitely various".
The material before the court in these proceedings indicates that the company is insolvent; it does not necessarily follow from that finding that a provisional liquidator should be appointed (Pitt v Bachmann) but insolvency remains an issue to be borne in mind and weighed in the balance when determining the outcome of the application for the appointment of a provisional liquidator. The power of the court to make such an appointment constitutes "a very wide discretion": Re Saldowa Pty Ltd (1986) 4 ACLC 200 at 201 per Fullagar J; see also Pitt v Bachmann.
In the present case, there is, however, in my opinion, more than the insolvency of the company to bring into the balance. The company's interest as a creditor in Emanuel Management should be preserved and protected; the relationship between the company and Mr Tonkin and his interests in Taurus
suggests, at the least, the need for some independent third party to protect the company's position. There is no evidence before me suggesting misconduct on the part of Mr Tonkin but it remains a fact that he is vitally interested in Taurus and has said in his affidavit that its financial circumstances may be placed at risk if Hendon pursues its claims as a creditor. Furthermore, allowance must be made for the possibility that proper investigations could disclose that Mr Tonkin has been acting in his own interests to the detriment of those of the company: c.f. Brimaud v Honeysett Instant Print Pty Ltd (1988) 6 ACLC 942.
In some cases (e.g. Re Adnot Pty Ltd (1982) 1 ACLC 307) undertakings proffered by the company to the court may be regarded as an adequate safeguard and initially that was the view which I had formed when the matter first came before me. However the additional information which has been summarised in these reasons has caused me to conclude that such an undertaking would not now be sufficient.
Finally, it is proper, in my opinion, to have regard to the fact that the company is and has for the last six years or so been dormant. The appointment of a provisional liquidator will not constitute a harmful interference with the projects or activities of an operational company. In assessing the balance of convenience this is a factor which can be borne in mind. I therefore concluded that it was appropriate to
appoint a provisional liquidator and an order was so made on 24 May 1995 appointing Peter Ivans Macks of 14th Floor, 26 Flinders Street, Adelaide. The costs of the applicant are to be paid by the respondent. I direct the applicant to bring in short minutes of order specifying the powers of the provisional liquidator and a short description of the property of which the provisional liquidator is to take possession. There will be liberty to speak to the minutes.
I certify that this and the preceding pages are a true copy of the Reasons for Judgment of Justice O'Loughlin.
Associate
Dated:
Counsel for the Applicant : D Meagher QC and S Maharaj
Solicitors for the Applicant : Australian Government
Solicitor
Counsel for the Respondent : R J Baxter
Solicitors for the Respondent : Johnson Winter & Slattery
Date of Hearing : 23, 24 May 1995
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