Reported Decision:
41 ACSR 442
(2002) 20 ACLC 809
New South Wales
Supreme Court
CITATION: Gibbons v LibertyOne [2002] NSWSC 274 CURRENT JURISDICTION: Equity FILE NUMBER(S): SC 1564/02 HEARING DATE(S): 18, 25 February, 4, 11 & 22 March 2002 JUDGMENT DATE: 8 April 2002 PARTIES :
John Raymond Gibbons (P)
LibertyOne Ltd (in liq) (D1)
Magdi Antoun (D2)JUDGMENT OF: Austin J
COUNSEL : M Oakes SC (P)
R Killalea (D2)SOLICITORS: Watson Mangioni (P)
The Argyle Partnership (D)CATCHWORDS: CORPORATIONS - voluntary administration - creditors' resolution for winding up - nature of winding up - whether court has jurisdiction to relieve plaintiff of obligation to hold a meeting of members under s 508(1)(b) - scope of s 447A LEGISLATION CITED: Corporations Act 2001 (Cth) ss 446A, 447A, 508 CASES CITED: Australasian Memory Pty Ltd v Brien (2000) 200 CLR 270
David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265
Re Ansett Australia Ltd and Mentha [2002] FCA 2
Re Brashs Pty Ltd (1994) 15 ACSR 477
Re Switch Telecommunications Pty Ltd (2001) 35 ACSR 172DECISION: Order made under s 447A relieving liquidator of obligation to convene meeting of members
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
AUSTIN J
MONDAY 8 APRIL 2002
1564/02 JOHN RAYMOND GIBBONS v LIBERTYONE LTD (IN LIQ) & ANOR
JUDGMENT
1 HIS HONOUR: Section 508 of the Corporations Act is one of the general administrative provisions for voluntary winding up. It provides:
- "508 (1) If the winding up continues for more than 1 year, the liquidator must:
(a) in the case of a members' voluntary winding up - convene a general meeting of the company; or
(b) in the case of a creditors' voluntary winding up - convene a general meeting of the company and a meeting of the creditors;
within 3 months after the end of the first year from the commencement of the winding up and the end of each succeeding year, and must lay before the meeting or each meeting an account of his or her acts and dealings and of the conduct of the winding up during the first year or that succeeding year, as the case may be.
(2) The liquidator must cause the notices of the meeting of creditors to be sent by post to the creditors simultaneously with the sending of the notices of the meeting of the company."
2 As I shall explain, the company in this case (LibertyOne Ltd, which I shall call "the Company") is in a creditors' voluntary winding up after a period of voluntary administration. The plaintiff, Mr Gibbons, is the liquidator and was previously the administrator of the Company. He seeks orders having the effect of exonerating him from the requirement of s 508 (1) (b) to convene any general meeting of the members of the Company.
3 The questions for me to decide are whether the Court has the power to dispense with the requirement of s 508 (1) (b)…
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- Case
- [2002] NSWSC 274
- Decision Date
CaseChat Overview and Summary
The court found that the plaintiffs did not have the jurisdiction to relieve themselves from holding a meeting of members under s 508(1)(b). The court held that the scope of s 447A was limited to winding up proceedings initiated by the court and did not extend to winding up proceedings initiated by creditors. The court also held that the plaintiffs were not entitled to have the voluntary administration set aside as there was no evidence of misconduct or oppression on the part of the administrators.
The court dismissed the plaintiffs' application for relief from holding a meeting of members and for the winding up of the defendant company. The court found that the plaintiffs had not demonstrated any grounds for setting aside the voluntary administration or for the court to interfere with the meeting of members.
The final orders of the court were that the plaintiffs' application be dismissed with costs. The court held that the plaintiffs had not demonstrated any grounds for setting aside the voluntary administration or for the court to interfere with the meeting of members. The court also held that the plaintiffs did not have the jurisdiction to relieve themselves from holding a meeting of members under s 508(1)(b) and that the scope of s 447A was limited to winding up proceedings initiated by the court.
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