Griffiths, in the matter of Auscabs Payment Solutions Pty Ltd

[2017] FCA 1626

FEDERAL COURT OF AUSTRALIA

Griffiths, in the matter of Auscabs Payment Solutions Pty Ltd [2017] FCA 1626

File number:	NSD 2241 of 2017
Judge:	YATES J
Date of judgment:	19 December 2017
Catchwords:	CORPORATIONS – application for appointment of new liquidator upon resignation of existing liquidator
Date of hearing:	19 December 2017
Registry:	New South Wales
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Corporations and Corporate Insolvency
Category:	Catchwords
Number of paragraphs:	10
Counsel for the Plaintiffs:	B K Koch
Solicitor for the Plaintiffs:	William James Lawyers

ORDERS

NSD 2241 of 2017

IN THE MATTER OF AUSCABS PAYMENT SOLUTIONS PTY LTD (IN LIQUIDATION) ACN 161 774 296

WILL GRIFFITHS

First Plaintiff

ANDREW JAMES BARNDEN

Second Plaintiff

JUDGE:

YATES J

DATE OF ORDER:

19 DECEMBER 2017

THE COURT ORDERS THAT:

1.The originating process be returnable instanter.

2.Pursuant to s 437A of the Corporations Act 2001 (Cth) (the Act) and ss 90-15(1) and 90-15(3)(c) of Sch 2 to the Act, the vacancies which will arise upon the resignation of the first plaintiff as liquidator of the companies listed in Sch 1 to the originating process on 19 December 2017 be filled by the second plaintiff.

3.Pursuant to s 499(3)(a) of the Act and ss 90-15(1) and 90-15(3)(c) of Sch 2 to the Act, the vacancy which will arise upon the resignation of the first plaintiff as liquidator of the company listed in Sch 2 to the originating process on 19 December 2017 be filled by the second plaintiff.

4. Pursuant to s 499(3)(a) of the Act and ss 90-15(1) and 90-15(3)(c) of Sch 2 to the Act, the vacancies which will arise upon the resignation of the first plaintiff as liquidator of the companies listed in Sch 3 to the originating process on 19 December 2017 be filled by the second plaintiff.

5.To the extent necessary, the second plaintiff be appointed to the position of liquidator notwithstanding any financial interest he may have in the companies the subject of those appointments arising from remuneration or expenses owed to the first plaintiff in his capacity as liquidator of those companies.

6.There be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)

YATES J:

1. The first plaintiff, Mr Griffiths, is a registered liquidator and a director of Rodgers Reidy NSW Pty Limited (Rodgers Reidy).  Rodgers Reidy provides corporate advisory services.  He has been appointed liquidator of a number of companies.  The companies are identified in schedules to the originating process.  Some of the appointments are Court appointments (Schedule 1).  The other appointments are in respect of creditors’ voluntary liquidations (Schedule 3), save for one appointment in a members’ voluntary liquidation (Schedule 2). 

2. Mr Griffiths intends to resign as a director of Rodgers Reidy on 31 December 2017.  He has new employment.  His new employment is such that he will be unable to fulfil the role of liquidator.  To this end, he intends to permit his registration as a liquidator to lapse.  I am informed that he intends to resign all his current appointments as liquidator with effect from today, 19 December 2017. 

3. It is intended that the second plaintiff, Mr Barnden, be appointed as liquidator of each of the companies, effective upon Mr Griffiths’ resignation.  The plaintiffs seek orders to that effect.  Their application is supported by affidavits made by Mr Griffiths and by Mr Barnden.  The application is also supported by an affidavit made by Mr McCarthy, a solicitor in the employ of the solicitor for the plaintiffs.

4. Mr Barnden is also a registered liquidator and a director of Rodgers Reidy.  He has consented to being appointed as the liquidator of each of the companies.  Staff at Rodgers Reidy who have assisted Mr Griffiths in the liquidations of the companies also assist Mr Barnden in his other appointments as liquidator. 

5. Mr Barnden has deposed that, save as a director of Rodgers Reidy, which has an indirect financial interest by way of remuneration and expenses incurred by Mr Griffiths in his capacity as liquidator, he is not aware of any relationship or other reason that would affect his ability to  be appointed as liquidator of each of the companies. 

6. Mr Barnden has deposed that if the present application is granted and he is appointed as liquidator of each of the companies, he intends to continue to use the staff at Rodgers Reidy who are familiar with each of the liquidations, and that he will not claim remuneration for time spent by himself or staff at Rodgers Reidy obtaining familiarity with the liquidations arising out of his appointment.

7. I am satisfied that it is appropriate to make the orders that are sought and to appoint Mr Barnden as liquidator of each of the companies.  I accept that his appointment will be of benefit to creditors in that it will provide for a transition that will ensure the continuity of knowledge of each liquidation already gained through Mr Griffiths’ appointments, and avoid the wastage of expenditure that would be incurred should someone outside Rodgers Reidy being appointed to fill the vacancies arising from Mr Griffiths’ resignations.

8. An appointment by the Court will also, in the case of the voluntary liquidations, avoid the expense and inconvenience of calling meetings of creditors or members to appoint a new liquidator.  Further, the appointment of Mr Barnden will also likely promote a smooth transition which minimises the disruption to each liquidation. 

9. I note that the Australian Securities and Investments Commission (ASIC) has been informed of the present application.  In a letter dated 18 December 2017, ASIC informed the plaintiffs’ solicitors that it does not propose to intervene.  It has expressed the view that the matter is one properly left for the determination of the Court. 

10. Orders substantially as sought will be made.

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

Associate: 

Dated:        19 January 2017