Deacons v Melbourne Investment House (Collingwood) Pty Ltd

[2006] FCA 1662

FEDERAL COURT OF AUSTRALIA

Deacons v Melbourne Investment House (Collingwood) Pty Ltd [2006] FCA 1662

DEACONS v MELBOURNE INVESTMENT HOUSE (COLLINGWOOD) PTY LTD

NSD2096 OF 2006

EMMETT J
24 NOVEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD2096 OF 2006

BETWEEN:	DEACONS Plaintiff
AND:	MELBOURNE INVESTMENT HOUSE (COLLINGWOOD) PTY LTD Defendant

JUDGE:	EMMETT J
DATE OF ORDER:	24 NOVEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Leave be granted pursuant to section 471B of the Corporations Act 2001(Cth) for the plaintiff to proceed with this proceeding.

2.Melbourne Investment House (Collingwood) Pty Ltd (‘the Company’) be wound up.

3.Quentin James Olde of Taylor Woodings of Level 14, 56 Pitt St, Sydney NSW 2000 be appointed liquidator of the Company.

4.The plaintiff’s costs be taxed and reimbursed out of the property of the Company.

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	NSD2096 OF 2006

BETWEEN:	DEACONS Plaintiff
AND:	MELBOURNE INVESTMENT HOUSE (COLLINGWOOD) PTY LTD Defendant

JUDGE:	EMMETT J
DATE:	24 NOVEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this proceeding, the plaintiff, Deacons, a firm of solicitors, seeks the winding up of a former client, Melbourne Investment House (Collingwood) Pty Ltd (‘the Company’).  The proceeding was commenced on 26 October 2006 and relies upon the failure of the Company to comply with a statutory demand.  I am satisfied that the demand was served and that no steps were taken to challenge the amount of the demand or seek an extension of time to comply with the demand.

2. However, on 27 October 2006, Mr Quentin James Olde (‘Mr Olde’) was appointed provisional liquidator of the Company by the Supreme Court of New South Wales.  Mr Olde was appointed on the application of Australian Securities and Investment Commission (‘the Commission’), which had previously commenced a proceeding for the winding up of the Company, on the ground that it was just and equitable to do so. 

3. When the matter was called on for hearing before the Registrar today, there was no appearance for the Company notwithstanding that thee is evidence of the service of the winding up application on the Company. However, because of the operation of s 471B of the Corporations Act 2001 (Cth) (‘the Act’), it was not possible for the matter to proceed. By s 471B of the Act, while a company is being wound up in insolvency or by the Court or a provisional liquidator of a company is acting, a person cannot begin or proceed with a proceeding in a court against the company or in relation to property of the company or enforcement process in relation to such property, except with the leave of the Court.

4. Deacons have, therefore, applied for leave. 

5. Because of lack of power on the part of the Registrar, the matter has been referred to me as Corporations Duty Judge. The Commission is represented in Court and has indicated that it does not oppose the granting of leave under s 471B and, indeed, supports the application for the winding up of the Company.

6. I am satisfied from the evidence that the statutory demand has been served.  I am also satisfied that Mr Olde has consented to act as liquidator of the Company pursuant to any order that might be made in this Court.  Deacons is a creditor of the Company in a sum in excess of $11,000 and clearly has standing to seek the winding up of the Company.

7. In all the circumstances, I consider that it is appropriate to grant leave pursuant to s 471B for Deacons to proceed with this proceeding and I propose to make an order for the winding up of the Company and for the appointment of Mr Olde as liquidator.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:        30 November 2006

Solicitor for the Plaintiff	Deacons
Date of Hearing:	24 November 2006
Date of Judgment:	24 November 2006