Deputy Commissioner of Taxation, in the matter of Opalarch Pty Ltd (ACN 060 638 913) (In Liq)

[2010] FCA 607

FEDERAL COURT OF AUSTRALIA

Deputy Commissioner of Taxation, in the matter of Opalarch Pty Ltd (ACN 060 638 913) (In Liq) [2010] FCA 607

Citation:		Deputy Commissioner of Taxation, in the matter of Opalarch Pty Ltd (ACN 060 638 913) (In Liq) [2010] FCA 607
Parties:		DEPUTY COMMISSIONER OF TAXATION v OPALARCH PTY LTD (ACN 060 638 913) (IN LIQUIDATION)
File number:		VID 1596 of 2005
Judge:		GORDON J
Date of judgment:		15 June 2010
Legislation:		Corporations Act 2001 (Cth) Federal Court (Corporations) Rules 2000 Corporations Regulations 2001
Cases cited:		Brealey v Shields [2009] NSWSC 1148 ReD S Millard & Son Pty Ltd (1997) 24 ACSR 71
Date of hearing:	15 June 2010
Date of last submissions:	15 June 2010
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	10
Solicitor for the Plaintiff:	Australian Taxation Office
Solicitor for the Defendant:	Gray & Gray Solicitors
Counsel for the Official Liquidators:	E Bennett
Solicitor for the Official Liquidators:	Clarkson Giacomi Solicitors

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 1596 of 2005

IN THE MATTER OF OPALARCH PTY LTD (ACN 060 638 913) (IN LIQUIDATION)

BETWEEN:	DEPUTY COMMISSIONER OF TAXATION Plaintiff
AND:	OPALARCH PTY LTD (ACN 060 638 913) (IN LIQUIDATION) Defendant

JUDGE:	GORDON J
DATE OF ORDER:	15 JUNE 2010
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. Pursuant to reg 5.6.71(1) of the Corporations Regulations2001, the Order authorising distribution of a surplus to a person entitled to it need not have annexed to it a schedule in accordance with Form 551.

1. Subject to paragraph 3, pursuant to s 488(2) of the Corporations Act 2001 (Cth), the liquidators of Opalarch Pty Ltd (ACN 060 638 913) (in liquidation) have special leave to distribute the surplus in the winding up of Opalarch Pty Ltd (ACN 060 638 913) (in liquidation) to Cong Doan Tran and Thi Loan Nguyen in equal shares.

2. The liquidators may recoup their fees, costs and expenses in an amount no greater than $4,342.08.

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
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 1596 of 2005

IN THE MATTER OF OPALARCH PTY LTD (ACN 060 638 913) (IN LIQUIDATION)

BETWEEN:	DEPUTY COMMISSIONER OF TAXATION Plaintiff
AND:	OPALARCH PTY LTD (ACN 060 638 913) (IN LIQUIDATION) Defendant

JUDGE:	GORDON J
DATE:	15 JUNE 2010
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an application under s 488(2) of the Corporations Act 2001 (Cth) (the Act) by Paul Andrew Burness and Morgan Gerard Lane, the liquidators (the Liquidators) of Opalarch Pty Ltd (ACN 060 638 913) (in liquidation) (Opalarch) for special leave to distribute a surplus in the liquidation of Opalarch.  The proposed distribution is approximately $3,961.70 to each of Cong Doan Tran and Thi Loan Nguyen (the Directors / Contributories). 

2. On 2 February 2006, Opalarch was wound up in insolvency and the Liquidators were appointed as liquidators of Opalarch.  After obtaining the Report as to Affairs from the Directors in March 2006 and requesting the creditors of Opalarch to complete a formal proof of debt or claim, the Liquidators issued an advice to the members of Opalarch on 12 January 2009 which noted, inter alia, that:

   1.the Australian Taxation Office (the ATO) was the only known creditor of Opalarch and had lodged a proof of debt in the sum of $8,908.30;

   2.it appeared that there would be sufficient funds to enable a payment of a 100 cent dividend to creditors;

   3.it appeared that there would be sufficient funds to enable a return to the contributories after payment of the unsecured creditors, subject to obtaining a clearance certificate from the ATO and special leave from the Court to distribute the surplus.

3. After advising creditors of their intention to declare a final dividend and calling for final proofs of debt, the Liquidators convened a meeting of creditors on 17 July 2009.  The only creditor to appear at the creditors’ meeting was the ATO, by proxy.  The Liquidators informed those present at the meeting of their intention to declare a final dividend of 100 cents in the dollar.  The dividend was paid to the ATO. 

4. On 20 August 2009, the ATO provided the Liquidators with a notice stating that there were no further outstanding tax related liabilities of Opalarch.  In short, the Liquidators have ascertained all debts and liabilities by calling for and adjudicating on proofs of debt and the one ascertained debt has been paid in full. 

5. On 11 December 2009, the Liquidators drew up a provisional list of contributories and sent a notice to each person on the list advising them that the Liquidators would settle the list of contributories.  A meeting to settle the list was held on 5 January 2010.  None of the persons in the provisional list attended the meeting.  Following that meeting, the Liquidators settled and certified the list of contributories.  On 11 January 2010, the Liquidators sent a notice to each person on the list informing them that their name had been included in the list and that they may appeal to the Court against inclusion in the list.  No person made application to the Court against inclusion on the list. 

6. As at 21 May 2010, the surplus in the liquidation of Opalarch was $12,265.48.  The Liquidators’ estimated fees, costs and charges that remain outstanding are $4,342.08. 

7. The application is straightforward.  First, the requirement for “special leave” means no more than the court’s permission be sought by an application specially made by the Liquidators:  ReD S Millard & Son Pty Ltd (1997) 24 ACSR 71.

8. Next, the application for special leave has been advertised (r 7.9(2) of the Federal Court (Corporations) Rules 2000) and served on the Contributories, the ATO and the Australian Securities and Investments Commission.  No objection to the application has been received and no person appeared at the hearing of the application. 

9. Thirdly, the Contributories each hold one share in Opalarch.  Accordingly, consistent with the approach adopted by Barrett J in Brealey v Shields [2009] NSWSC 1148 at [10] – [14], it is appropriate that the Court grant a direction displacing the requirement for a schedule in accordance with reg 5.6.71(1) of the Corporations Regulations 2001 to be annexed to the Court Order. 

10. In the circumstances, subject to payment to the Liquidators of their fees, costs and expenses in an amount no greater than $4,342.08, I consider that it is appropriate for the Court to grant special leave pursuant to s 488(2) of the Act for the Liquidators to distribute the surplus in the winding up of Opalarch equally between the Contributories. I will make orders in those terms.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon.

Associate:

Dated:       15 June 2010