Supreme Court
New South Wales
Medium Neutral Citation: In the matter of Annabel Victoria Pty Ltd [2012] NSWSC 375 Hearing dates: 16 April 2012 Decision date: 19 April 2012 Jurisdiction: Equity Division - Corporations List Before: Black J Decision: Winding up of Annabel Victoria Pty Ltd terminated.
Catchwords: CORPORATIONS - Winding up - Application for order to terminate members' voluntary winding up Legislation Cited: - Corporations Act 2001 (Cth) ss 482, 482(1A(a), 511, 511(1)(b) Cases Cited: - McKern (as liquidator of Pacific Edge Corporation Pty Ltd (in liq)) v Pacific Edge Corporation Pty Ltd (in liq) [2004] NSWSC 1150
- Re St George Bank Ltd [2007] NSWSC 134Category: Principal judgment Parties: John Vouris as liquidator of Annabel Victoria Pty Ltd (Plaintiff)
Annabel Victoria Pty Ltd (Defendant)Representation: Solicitor:
G. Lancaster (Plaintiff)
File Number(s): 12/82332
Judgment
The Plaintiff, John Vouris as liquidator of Annabel Victoria Pty Ltd ("Company") applies for orders under ss 482 and 511(1)(b) of the Corporations Act 2001 (Cth) that the winding up of the Company be terminated.
Mr Vouris was appointed as liquidator of the Company on 17 October 2004 in a members' voluntary winding up. Mr Vouris' investigations indicate that the Company has not engaged in active business operations since the sale of a business which it operated approximately 20 years ago and has since then been a corporate beneficiary of a family trust, the Christine Eileen Power Family Trust ("Trust").
The Court has jurisdiction to order termination of such a winding up under s 482 and s 511 of the Corporations Act and the liquidator has standing to apply for a termination order under s 482(1A)(a) of the Corporations Act: McKern (as liquidator of Pacific Edge Corporation Pty Ltd (in liq)) v Pacific Edge Corporation Pty Ltd (in liq) [2004] NSWSC 1150.
The evidence shows no reason why, as a matter of public policy, the company should not be reinstated. It appears the decision to wind up the Company was based on financial advice given to the directors and members in 2004. The Company has recently taken further advice and the directors and it's shareholder have formed the view that they would prefer not to complete the winding up of the Company, but to restore it to an active status so that it may be used as a corporate beneficiary of the Trust, to receive income distributions over time and be wound up upon Ms Power's death. As in Re St George Bank Ltd [2007] NSWSC 134, the members' voluntary winding up was commenced for reasons of administrative convenience and the company's sole shareholder now wishes to bring that process to an end for reasons of the same kind. There is no reason why the sole shareholder's wishes in that regard should not be given effect.
There is no doubt as to solvency of the Company. Mr Vouris' evidence is that, in his opinion, the Company was solvent at the time of the resolution for winding up and has remained solvent throughout the winding up. A certificate from the Australian Taxation Office dated 15 March 2010 confirms that the Company has no outstanding tax-related liabilities. Mr Vouris has advertised for creditors and has received no notification in response to those advertisements and no communication from anybody claiming to be a creditor, consistent with the information provided to him that the Company was not engaged in any trading activities. Mr Vouris has been paid his remuneration and disbursements in connection with the winding up and his fees in respect of this application are to be paid by related parties so that the Company has no external creditors. Three directors of the Company have consented to resuming their duties as directors if the winding up is terminated, so that the future governance of the company will be secure if the liquidator's tenure comes to an end: McKern v Pacific Edge Corporation at [7].
The application has been advertised and no objections have been received and notice of the application has also been given to the Australian Securities and Investments Commission which has advised that it considers the matter is properly left for the Court's determination and that it did not propose to intervene in the proceedings or seek leave to appear.
Accordingly, I order that:
1. The winding up of Annabel Victoria Pty Ltd be terminated pursuant to ss 482 and 511 of the Corporations Act 2001 (Cth).
2. This order be entered forthwith.
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- AGLC
- In the matter of Annabel Victoria Pty Ltd [2012] NSWSC 375
- Case
- [2012] NSWSC 375
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the members' voluntary winding up was conducted in accordance with the Corporations Act 2001 and whether the applicant had standing to challenge the winding up. The court had to consider whether the directors' decision to initiate the winding up was in the best interests of the company and its members, and whether the process followed was fair and reasonable. Additionally, the court needed to determine whether the applicant had a sufficient interest in the company to challenge the winding up.
In delivering the judgment, the court found that the directors had acted within their powers in initiating the members' voluntary winding up and that the process followed was in accordance with the statutory requirements. The court held that the applicant did not have standing to challenge the winding up as they did not demonstrate a sufficient interest in the company. Consequently, the application to terminate the winding up was dismissed. The court concluded that the directors' decision to wind up the company was valid and that the applicant had not established grounds to interfere with the process.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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