Cribb in his capacity as Liquidator, in the matter of C and G Drilling Pty Ltd (in liq), v C and G Drilling Pty Ltd (in liq)
[2008] FCA 1573
•1 October 2008
FEDERAL COURT OF AUSTRALIA
Cribb in his capacity as Liquidator, in the matter of C & G Drilling Pty Ltd (in liq), v C & G Drilling Pty Ltd (in liq) [2008] FCA 1573
IN THE MATTER OF C & G DRILLING PTY LTD (ACN 076 371 438) (IN LIQUIDATION)
NEIL RAYMOND CRIBB IN HIS CAPACITY AS LIQUIDATOR OF C & G DRILLING PTY LTD (ACN 076 371 438) v C & G DRILLING PTY LTD (ACN 076 371 438) (IN LIQUIDATION)WAD 180 OF 2008
SIOPIS J
1 OCTOBER 2008
PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAD 180 OF 2008
IN THE MATTER OF C & G DRILLING PTY LTD (ACN 076 371 438) (IN LIQUIDATION)
BETWEEN:
NEIL RAYMOND CRIBB IN HIS CAPACITY AS LIQUIDATOR OF C & G DRILLING PTY LTD (ACN 076 371 438)
PlaintiffAND:
C & G DRILLING PTY LTD (ACN 076 371 438) (IN LIQUIDATION)
Defendant
JUDGE:
SIOPIS J
DATE OF ORDER:
1 OCTOBER 2008
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The liquidation of the defendant be terminated pursuant to s 482 of the Corporations Act 2001 (Cth) (the Act).
2.The plaintiff be released pursuant to s 481 of the Act.
3.The plaintiff’s costs of this application be paid out of the assets of the defendant.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAD 180 OF 2008
IN THE MATTER OF C & G DRILLING PTY LTD (ACN 076 371 438) (IN LIQUIDATION)
BETWEEN:
NEIL RAYMOND CRIBB IN HIS CAPACITY AS LIQUIDATOR OF C & G DRILLING PTY LTD (ACN 076 371 438)
PlaintiffAND:
C & G DRILLING PTY LTD (ACN 076 371 438) (IN LIQUIDATION)
Defendant
JUDGE:
SIOPIS J
DATE:
1 OCTOBER 2008
PLACE:
PERTH
REASONS FOR JUDGMENT
This is an application under s 482 of the Corporations Act 2001 (Cth) (the Act) for the termination of the winding‑up of the defendant. The plaintiff is the liquidator of the defendant in his capacity as such. The plaintiff also seeks orders that he be released as liquidator pursuant to s 481 of the Act.
The defendant company was wound up on the application of the Deputy Commissioner of Taxation on 27 June 2007. Prior to 2001, the defendant operated a drilling business, exclusively in the mining industry. In 2001, the defendant ceased operating the drilling business and acquired and then held an investment in a vineyard in Western Australia called Chalice Bridge.
Prior to the winding‑up, there were two members of the defendant, each holding one paid up share; one is Mr Domney, and the other is Mr Russell. They were also the only directors of the defendant. There were initially three creditors, namely, Mr Domney, Churchill Finance Pty Ltd and the Deputy Commissioner of Taxation. Each of these creditors filed a proof of debt. However, the plaintiff entered into an arrangement with Mr Domney whereby Mr Domney withdrew all claims against the defendant and provided the liquidator with sufficient funds to discharge both the liquidator’s fees and also the debt which was due to the Deputy Commissioner of Taxation. The plaintiff also entered into an arrangement with Churchill Finance. The consequence was that Mr Domney and Churchill Finance withdrew their respective proofs of debt.
Mr Cribb deposes that after the discharge of the debt to the Deputy Commissioner of Taxation, the defendant is effectively cash flow solvent.
I adjourned the hearing of this application on the first time that it came before me so that the plaintiff could attend to the matters which were required by r 7.5 of the Federal Court (Corporations) Rules (the Rules). The plaintiff has now filed a lengthy affidavit which, in my view, complies with the provisions of r 7.5.
Among the matters disclosed in the affidavit, is the fact that the debt due to the Deputy Commissioner of Taxation ‑ being the only remaining creditor ‑ has been discharged. The plaintiff also deposed that notice of this application was served on the Deputy Commissioner of Taxation, as well as Mr Russell, and that they have said that they do not object to the making of the orders. Mr Domney and Churchill Finance were also notified and have advised the plaintiff to the same effect. Further, the Australian Securities and Investment Commission has also been notified of this application. It, too, has said that it does not object to the making of the orders which are proposed.
The plaintiff has also deposed that he has realised all of the defendant’s property, and has declared a final dividend. The plaintiff’s affidavit also contains the statement referred to in r 7.5(4)(a) of the Rules.
The plaintiff does not ask for the defendant to be deregistered, because it is intended that it continue to hold the investment referred to.
I will make orders in the terms of the application.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate:
Dated: 20 October 2008
Counsel for the Plaintiff: Mr S De Vita Solicitor for the Plaintiff: De Vita + Dixon
Date of Hearing: 1 October 2008 Date of Judgment: 1 October 2008
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