In the matter of Aspirion Group Pty Ltd (receiver and manager appointed) and In the matter of Aspirion Holdings Pty Ltd (receiver and manager appointed)
[2014] NSWSC 39
•03 February 2014
Supreme Court
New South Wales
Medium Neutral Citation: In the matter of Aspirion Group Pty Ltd (receiver and manager appointed) and In the matter of Aspirion Holdings Pty Ltd (receiver and manager appointed) [2014] NSWSC 39 Hearing dates: 3 February 2014 Decision date: 03 February 2014 Jurisdiction: Equity Division - Corporations List Before: Black J Decision: Order for winding up of companies. Extension of time for lodgement of special resolution with the Australian Securities and Investments Commission. Order dispensing with publication of notice of winding up application. Costs reserved.
Catchwords: CORPORATIONS - supervision - courts - application for an order under s 1322(4)(d) of the Corporations Act 2001 (Cth) extending the time for a company to give notice of special resolution in accordance with s 461(2).
CORPORATIONS - winding up - applications for winding up by court under s 461(1)(a) of Corporations Act 2001 (Cth) - whether requirements for order are satisfied.
CORPORATIONS - winding up - application for appointment of liquidator - whether conflict of interest may have arisen if receivers of holding company were appointed as liquidators of subsidiary.Legislation Cited: - Corporations Act 2001 (Cth) ss 461(1)(a), 466(2), 467, 1322(4) Cases Cited: - Hillig v Darkinjung Pty Ltd [2006] NSWSC 1371; (2006) 205 FLR 450
- Re Kala Capital Pty Ltd [2011] NSWSC 1253
- MFS Alternative Assets (in liq) v Angstrom Assets Pty Ltd [2012] NSWSC 447Category: Interlocutory applications Parties: Aspirion Group Pty Ltd (receivers and managers appointed) (First Plaintiff)
Aspirion Holdings Pty Ltd (receivers and managers appointed) (Second Plaintiff)
Scott Gustetter (First Defendant)
Aspirion Consulting Pty Ltd (Second Defendant)
Aspirion People Pty Ltd (Third Defendant)
Synergos Pty Ltd (Fourth Defendant)
Aspirion Technology Pty Ltd (Fifth Defendant)
ASP Property 2 Pty Ltd (Sixth Defendant)
Aspirion International Pty Ltd (Seventh Defendant)Representation: Counsel:
J T Johnson (Plaintiffs)
B Connell (Defendants)
Solicitors:
Megan McCormick and Andrew Williams (Plaintiffs)
Eakin McCaffrey Cox (Defendants)
File Number(s): 2013/382776
Judgment - ex tempore
By originating process filed on 20 December 2013, the plaintiffs, Aspirion Group Pty Ltd (recs and mgrs apptd) ("Aspirion Group") and Aspirion Holdings Pty Ltd (recs and mgrs apptd) ("Aspirion Holdings") sought orders, inter alia, that Aspirion Consulting Pty Ltd, Aspirion People Pty Ltd, Synergos Pty Ltd, Aspirion Technology Pty Ltd, and ASP Property 2 Pty Ltd ("Companies") be wound up under s 461(1)(a) of the Corporations Act 2001 (Cth) and that Messrs Ian Purchas and Darren Vardy, or some other person approved by the Court, be appointed official liquidators of the Companies. I will deal first with the application for the winding up of those entities and then with the question of the identity of the liquidator to be appointed.
Aspirion Group is the shareholder in each of the Companies. Messrs Purchas and Vardy were appointed receivers and managers of Aspirion Group and Aspirion Holdings on 11 December 2013 by a party claiming to be a secured creditor of those entities under a convertible note security deed and associated security arrangements. On 20 December 2013, Messrs Purchas and Vardy, in their capacity as receivers and managers of Aspirion Group, passed a resolution that an application be made pursuant to the provisions of s 461(1)(a) of the Corporations Act that each of the Companies be wound up by the Court. The first defendant in the proceedings, Mr Scott Gustetter, who is the sole director and secretary of the Companies and (it is common ground) holds the controlling interest in the Companies through interposed entities, does not oppose the appointment of a liquidator to the Companies.
The circumstances in which the court will order a winding up under s 461(1)(a) have been considered in several recent decisions: Hillig v Darkinjung Pty Ltd [2006] NSWSC 1371; (2006) 205 FLR 450 at [35]; Re Kala Capital Pty Ltd [2011] NSWSC 1253 at [6]-[7]; MFS Alternative Assets (in liq) v Angstrom Assets Pty Ltd [2012] NSWSC 447 at [4]. The authorities indicate that, although that section was rarely relied upon in earlier years, the Court will not generally exercise its discretion against making a winding up order under that section, where shareholders have by special resolution resolved that a company should be wound up by the Court, unless the shareholders' decision or surrounding circumstances involve an element of unconscionability, or are inequitable, or some other special consideration adversely affecting the creditors indicates that there should be no winding up. In particular, it is no reason to decline to make a winding up order under s 461(1)(a) of the Corporations Act that a voluntary winding up might have been available in the circumstances.
In the present case, there is nothing to suggest that there is anything unconscionable or inequitable or any special consideration adversely affecting the creditors that indicates that the Court should not proceed to a winding up of the Companies under that section. The winding up is sought by Aspirion Group, the holding company, in circumstances that receivers have been appointed to it and is not opposed by Mr Gustetter as I noted above. Such a winding up order is likely to be in the interests of the Companies and Aspirion Group, particularly in circumstances where there appear to be disputes as to the events surrounding the relevant security arrangements. For these reasons, I am satisfied that this is a proper case in which to make an order winding up the relevant companies under s 461(1)(a) of the Corporations Act.
It appears that, by oversight, notification of the special resolution passed under s 461(1)(a) of the Corporations Act has not been given to the Australian Securities and Investments Commission. I am satisfied that this is a proper case in which to extend the time for giving such notification under s 1322(4) of the Corporations Act. The application has also not been published, but in circumstances that a winding up order will be made pursuant to a resolution passed in a general meeting, and an independent liquidator will be appointed, there seems to me to be no disadvantage that is likely to arise from that failure to publish. For that reason, I will make an order dispensing with the requirement for publication of the winding up application under s 467(3)(b) of the Corporations Act.
An issue originally arose in the application as to whether Messrs Purchas and Vardy, the receivers appointed to Aspirion Group and Aspirion Holdings, should be appointed as liquidators of the Companies and they originally sought their appointment as liquidators of the Companies. Mr Gustetter opposed such an appointment, pointing to the possibility that a conflict might arise, at least so far as the interests of the receivers or their appointors might be in conflict with the interests of creditors of the Companies. Messrs Purchas and Vardy sensibly recognised that, where that possibility had been raised, it was likely to be preferable to proceed to an appointment of another liquidator as to whom there was no contest as to independence. It seems to me that that view was sensibly taken, notwithstanding that in taking it, Messrs Purchas and Vardy have, of course, taken a pragmatic approach without conceding that they would in fact have lacked independence had they be appointed. The Court has been provided with consents of Messrs Darin and Malanos to appointment as liquidators of the relevant entities. Both the receivers and managers and Mr Gustetter consent to their appointment as liquidators, and I propose make such an appointment on that basis.
The parties are agreed that the costs of this application should be reserved, and I note that, to that extent, the Court otherwise orders in respect of costs for the purposes of s 466(2) of the Corporations Act. The parties are also content that other matters which are in dispute between them be stood over to the next Corporations List, which will take place on 10 February 2014, for further directions. For these reasons, I make the following orders:
1. Order that Aspirion Consulting Pty Limited (ACN 126 134 174), Aspirion People Pty Limited (ACN 125 813 694), Synergos Pty Ltd (ACN 126 933 640), Aspirion Technology Pty Limited (ACN 126 232 004) and ASP Property 2 Pty Limited (ACN 124 010 804) be wound up under s 461(1)(a) of the Corporations Act 2001 (Cth).
2. Order that Christopher Darin and Nicholas Malanos be appointed official liquidators of each of Aspirion Consulting Pty Limited, Aspirion People Pty Limited, Synergos Pty Limited, Aspirion Technology Pty Limited and ASP Property 2 Pty Limited.
3. Extend the time for lodgement of a copy of the special resolution passed under s 461(1)(a) of the Corporations Act and any other notifications with the Australian Securities and Investments Commission to 4pm on 4 February 2014.
4. Dispense with any requirement for publication of notice of the winding up application under s 467 of the Corporations Act.
5. The costs of these applications be reserved.
6. The proceedings be stood over to the Corporations List for directions at 10am on 10 February 2014.
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Decision last updated: 11 February 2014
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