In the matter of Australasian Barrister Chambers Pty Limited

[2020] NSWSC 304

Supreme Court

New South Wales

Medium Neutral Citation:	In the matter of Australasian Barrister Chambers Pty Limited [2020] NSWSC 304
Hearing dates:	9 March 2020
Date of orders:	09 March 2020
Decision date:	09 March 2020
Jurisdiction:	Equity - Corporations List
Before:	Rees J
Decision:	Pursuant to section 480 of the Corporations Act 2001 (Cth), order that David Henry Sampson be released and that the company, Australasian Barrister Chambers Pty Ltd, be deregistered.
Catchwords:	CIVIL PROCEDURE – service – consent to service by email – effective informal service CORPORATIONS – winding up – liquidators – release under section 480 – principles at [28]-[32] – protracted history of litigation with person standing behind the corporation – prospect of further baseless claims – release under section 480 – prerequisites under rule 7.5 of Supreme Court (Corporation) Rules 1999 (NSW) – whether service under rule 7.5(6) of the Supreme Court (Corporations) Rules 1999 (NSW) satisfied – whether dispense with requirement for service by prepaid post – principles at [34]-[37]
Legislation Cited:	Corporations Act 2001 (Cth), ss 480, 481(3), 481(4) Supreme Court (Corporations) Rules 1999 (NSW), rr 2.7(2), 2.7(2)(a), 7.5, 7.5(3), 7.5(6) Evidence Act 1995 (NSW), s 157 Uniform Civil Procedure Rules 2005 (NSW), r 3.7
Cases Cited:	ABCD Corporation Pty Ltd v Sampson [2017] NSWCA 117 Deputy Commissioner of Taxation v Tideturn Pty Ltd [2001] NSWSC 217; (2001) 37 ACSR 152; Re Wayland as liquidator of ABC Container Line NV (in liq) [2005] NSWSC 1; (2005) 52 ACSR 750 Howship Holdings Pty Ltd v Leslie (1996) 41 NSWLR 542; (1996) 21 ACSR 440 In the matter of Australasian Barrister Chambers Pty Ltd [2016] NSWSC 1767 In the matter of Australasian Barristers Chambers Pty Ltd [2019] NSWSC 799 In the matter of Outix Corporation Pty Limited [2019] NSWSC 1716 In the matter of RR Impex Pty Ltd (in liquidation) [2013] NSWSC 1667 Minus, in the matter of ABCD Corporation Pty Ltd [2019] FCA 1523 Re Adellos Pty Ltd (in liq) [2013] NSWSC 747 Re Austral Family Homes Pty Ltd (in liq) (1992) 8 ACSR 322; (1992) 28 NSWLR 247 Re Australasian Barrister Chambers Pty Ltd (In Liq) [2017] NSWSC 597 Re Australasian Barrister Chambers Pty Ltd [2016] NSWSC 1939 Re Australasian Barrister Chambers Pty Ltd [2019] NSWSC 1886 Re Autistic Therapy Society of Queensland Limited (in liq) (1981) 5 ACLR 658 Re Budget Floor Coverings Pty Ltd (in liq) (1982) 6 ACLR 657; (1982) 1 ACLC 312 Re Cardiff Coal Company (2014) 104 ACSR 135; [2014] NSWSC 1590 Re One.Tel Ltd (in liq) [2014] NSWSC 1892 Re RH Trevan Pty Ltd (in liq); Trevan Auto Service Pty Ltd (in liq); Trevan Car Sales Pty Ltd (in liq) [2013] NSWSC 1445 Re Wayland as Liquidator of ABC Containerline NV (in liq) [2005] NSWSC 1; (2005) 52 ACSR 750 Selth v Australasian Barrister Chambers Pty Ltd (No 3) (2017) 256 FCR 367; [2017] FCA 649 Selth v Australasian Barrister Chambers Pty Ltd (No 4) [2017] FCA 855 Singer v Trustee of the Property of Munro [1981] 3 All ER 215 Woodgate v Garard Pty Ltd (2010) 78 ACSR 468; [2010] NSWSC 508
Category:	Principal judgment
Parties:	The Owners – Strata Plan No 21574 (Plaintiff) Australasian Barrister Chambers Pty Ltd (Defendant) David Sampson (Applicant) ABCD Corporation Pty Ltd (Respondent)
Representation:	Counsel: Mr R Marshall SC (Applicant/Liquidator) Ms E Kovacs (Applicant/Liquidator)   Other: Mr D Minus (Director of Respondent)
File Number(s):	2015/00326742

ex tempore Judgment

1. HER HONOUR: This is an application by David Sampson, the liquidator of Australasian Barrister Chambers Pty Ltd (in liquidation) (the Company), for an order under section 480 of the Corporations Act 2001 (Cth) that he be released as the liquidator of the Company and that the Company be deregistered.

Service of application

2. An initial question arose as to whether the respondent, ABCD Corporation Pty Ltd, had been served with notice of the application. ABCD Corporation is a creditor of the Company and also a shareholder. The directors and shareholders of ABCD Corporation are Derek Minus and his wife. Mr Minus, also a barrister, appeared before Gleeson JA in the Corporations List this morning and also before me and informed the Court:

… the respondent company has never been served with any documents in relation to this. Neither has the other director. I am not attending here on instructions. I am attending because on Friday I received an e‑mail from the liquidator's solicitor attaching some documents. I have no instructions and the company has not been served.

3. Mr Minus handed up a letter from his wife, who stated in the letter:

I wish to state that:

1.   I was not aware that this matter was proceeding in Court today.

2.   I have not been served with any notice of this interlocutory process.

3.   ABCD has not been served with any notice of this interlocutory process.

4.   Derek Minus has advised me that he only personally received notice of this matter when on Friday 6 March 2020 he was sent an email.

5.   He further advised me that in his opinion ABCD should oppose the matter and request that it be set down for hearing.

6.   When served, I would seek to obtain independent legal advice, from a solicitor who I have previously consulted on this matter. I would then be in a position to discuss with the other director, how ABCD should proceed.

Whilst the letter was marked up for identification, it was not tendered and is not evidence.

4. On the issue of service, Mr Sampson read two affidavits by his solicitor, Nicholas Dale of Gillis Delaney Lawyers. Mr Dale deposed that he had notified Mr Minus of this application by email on 7 February 2020. Mr Dale also deposed that he had acted for the liquidator in these proceedings since late 2015 and, in the course of doing so, had communicated with Mr Minus by email on numerous occasions. Mr Dale deposed that Mr Minus has also appeared on numerous applications as either a creditor or, with leave, as a director of ABCD Corporation before Brereton J in 2016 and 2017 and before Black J in the period from 2017 to 2019.

5. As to the requirements for service, rule 2.7(2)(a) of the Supreme Court (Corporations) Rules 1999 (NSW) provides:

Service of originating process or interlocutory process and supporting affidavit

1. As soon as practicable after filing an interlocutory process and, in any case, at least 3 days before the date fixed for hearing, the applicant must serve a copy of the interlocutory process and any supporting affidavit on:

(a)   each respondent (if any) to the application in the interlocutory process

6. Rule 3.7 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) provides:

Electronic service of a document

A party to any proceedings before the court may use electronic mail to serve a document on any other party to proceedings, whether by means of Online Registry or otherwise, but only with the consent of the other party.

7. A number of documents filed by Mr Minus with the Court shed light on the position: section 157 of the Evidence Act 1995 (NSW). On 16 March 2017, a Notice of Removal of Solicitor was filed by ABCD Corporation and Mr Minus. The relevant form (Form 78, UCPR 7.27) requires the party filing it to provide their contact details. For ABCD Corporation, the following contact details were given:

Name of authorised officer      Derek Minus

Capacity to act for filing party      Director …

A telephone number and email address were also provided.

8. On 31 August 2017, Mr Dale served the Interlocutory Process by an email to Mr Minus. That is, of course, more than two years ago. The Interlocutory Process sought a range of relief which has been progressively determined by the Court ever since.

1. Prayers 1 and 2 (to fix the receiver’s remuneration) were determined by Brereton J in February 2018 after a hearing at which Mr Minus appeared.

2. Directions were made by Ward CJ in Eq in respect of the Interlocutory Process on 22 July 2019 and Mr Minus appeared on that occasion.

3. Prayer 3 (passing the receiver’s accounts) was determined by me on 2 September 2019 and Mr Minus did not appear on that occasion, although Mr Dale had earlier served Mr Minus, by email, with the evidence on which the liquidator intended to rely at that hearing.

4. On 28 October 2019, the Interlocutory Process was listed before Black J for directions and Mr Minus appeared on that occasion and signed Short Minutes of Order standing the Interlocutory Process over to 10 February 2020.

9. On 5 September 2019, Mr Minus (also a bankrupt) was granted leave to manage ABCD Corporation: Minus, in the matter of ABCD Corporation Pty Ltd [2019] FCA 1523. The Australian Securities and Investments Commission (ASIC) intervened in the proceedings and sought a condition, which Jagot J imposed, that the Company not engage in any trading activity in any capacity other than as trustee of the Minasian Superannuation Fund.

10. On 17 December 2019, Mr Minus filed a Notice of Appearance (Form 4, rule 2.9) noting that he, a director of ABCD Corporation, intended to appear on 18 December 2019 to oppose another Interlocutory Process filed by Mr Sampson to have his remuneration as liquidator approved. The contact details provided on the form included Mr Minus’ email address to which the liquidator’s solicitor has been corresponding. On 18 and 20 December 2019, Black J heard Mr Sampson’s application for his remuneration as liquidator to be approved. His Honour granted leave to Mr Minus, as a director of ABCD Corporation, to represent it on the application: In the matter of Australasian Barrister Chambers Pty Limited [2019] NSWSC 1886 at [2].

11. On 7 February 2020 at 9.30 am, Mr Dale sent an email to Mr Minus as follows:

The Interlocutory Process concerning the release of the Liquidator and the deregistration of Australasian Barrister Chambers Pty Ltd (in Liq) pursuant to s480 of the Corporations Act is listed for directions on 10 February 2020 at 10 am. Please find attached for ease of reference a sealed copy of the Interlocutory Process. We draw your attention to paragraph 6 in the Interlocutory Process.

Our client will rely upon an affidavit of D.H. Sampson sworn on 6 February 2020 in support of the prayer for relief in paragraph 6. We attach by way of service a sealed copy of that affidavit.

Mr Dale further advised in the email that, at the upcoming directions hearing on 10 February 2020, the liquidator intended to seek an adjournment of the Interlocutory Process to 9 March 2020. Mr Dale enquired whether ABCD Corporation consented to that course and attached proposed Short Minutes of Order for Mr Minus’ signature and return in the event that he agreed. It will be noted that Mr Dale attached to his email the Interlocutory Process and the affidavit relied on by Mr Sampson in support of the relief sought.

12. On 6 March 2020, Mr Dale sent Mr Minus a ‘follow up’ email, noting that he had appeared before Gleeson JA on 10 February 2020 and the Interlocutory Process had been was stood over to 9 March 2020 at 10.00 am. Mr Dale advised that he was instructed to proceed on 9 March 2020 to seek the relief in prayer 6 in the Interlocutory Process. The Interlocutory Process and affidavit in support were again attached to this email. I note that Mr Minus informed the Court that he received this email and its attachments. As it was sent to the same email address as the email of 7 February 2020, I infer that Mr Minus also received the earlier email and its attachments as well.

13. Notwithstanding this, with respect, very clear evidence, Mr Minus again submitted:

In relation to this matter the company has never been served. I am not the agent of the company. I am not its permanent legal counsel. I am simply a director. When these matters are sent to us my partner, and you will note, as you have noted that her name Minasian is different from my name Minus and I would ask your Honour to take judicial notice that in this age of women's independence that my wife chooses to maintain a separate surname and also a separate ability to seek her own legal advice. She hasn't been served with any of these documents. The company has not been served with any of these documents and I personally received these documents last Friday.

Thus, Mr Minus submitted that there was no basis on which he could appear today other than to inform the Court that ABCD Corporation had not been served.

14. The difficulties I have with Mr Minus’ submissions are manifold. First, I am concerned why a barrister persists in submitting to the Court that they have never been served with any documents in relation to the application today in the face of clear documentary evidence to the contrary. Second, it is a mysterious prospect for a director to appear for a corporation without instructions, those instructions presumably emanating from himself. Whilst ABCD Corporation has two directors, Mr Minus is its authorised representative in these proceedings and can presumably readily consult with his fellow director, his wife.

15. Third, it is apparent from the notices filed by Mr Minus with the Court, referred to at [7] and [10], that ABCD Corporation has consented to electronic service in accordance with UCPR rule 3.7 and the parties have been conducting themselves accordingly for some time. Even if the notices had not made this clear, consent may also be inferred from the manner in what a party has chosen to communicate over the course of a dispute or legal proceedings: In the matter of Outix Corporation Pty Limited [2019] NSWSC 1716 at [21]. Such consent may be inferred here given the evidence of Mr Dale as to his email communications with Mr Minus in these proceedings for more than four years.

16. Fourth, even if a party has not consented to electronic service, a document may still have been served by email if it actually came to their attention by that means: Howship Holdings Pty Ltd v Leslie (1996) 41 NSWLR 542 at 544-5; (1996) 21 ACSR 440 at 443-4 per Young J. The principles concerning “effective informal service” were summarised by Palmer J in Woodgate v Garard Pty Ltd (2010) 78 ACSR 468; [2010] NSWSC 508 at [44]: (citations omitted)

Inconsistency and uncertainty in an area of the law which is of everyday application merely multiply occasions for dispute. It may, therefore, be useful to summarise the principles which are supported by the preponderance of authority, as follows:

…

iv)   the prescribed modes are not exclusive of other modes of service: if some other mode of service is employed, whether it is good service depends upon whether the serving party can prove to the Court’s satisfaction that the document actually came to the attention of an officer of the company who was either expressly or implicitly authorised by the company to deal directly and responsively with the document, or documents of that nature (“a responsible officer”) … ;

v)   there is no special exception to the “effective informal service rule” in the case of service by e-mail or facsimile – the question remains whether that mode of service actually brought the document to the attention of a responsible officer…;

vii)   a party invoking the effective informal service rule bears the onus of proving the time at which the document came to the actual attention of a responsible officer of the company and, in view of the serious consequences which may attend, the Court will not lightly draw inferences or make assumptions as to the time of service ….

17. There is no doubt that the Interlocutory Process came to Mr Minus’ notice when it was served so long ago as he has since appeared at directions and substantive hearings at which the liquidator has sought to have the various prayers in that Interlocutory Process determined. The only question is whether it has come to Mr Minus’ attention that the liquidator now seeks to advance prayer 6 and I am satisfied that he was so notified on 7 February 2020, more than a month before the hearing today. I infer that the email came to his attention within days of it having been sent, as it was sent to the same email address as the ‘follow up’ email of 6 March 2020 which Mr Minus said came to his attention that day.

18. I was thus satisfied that ABCD Corporation Pty Ltd had been served with notice of the Interlocutory Process in accordance with rule 2.7(2) of the Supreme Court (Corporations) Rules. Having so found, Mr Minus excused himself from further appearing in the matter, which proceeded in his absence.

Release of liquidator

19. In support of the liquidator’s application for an order that he be released and the Company deregistered, affidavits sworn by Mr Sampson and Mr Dale were read. The liquidator also relied on a sample of judgments in this Court and the Federal Court of Australia which chronicle disputes which have bedevilled the liquidation of the Company, being:

1. Selth v Australasian Barrister Chambers Pty Ltd (No 3) (2017) 256 FCR 367; [2017] FCA 649 (before Greenwood J in February 2016);

2. Selth v Australasian Barrister Chambers Pty Ltd (No 4) [2017] FCA 855 (before Greenwood J in February 2016);

3. In the matter of Australasian Barrister Chambers Pty Ltd [2016] NSWSC 1767 (before Brereton J in October 2016);

4. Re Australasian Barrister Chambers Pty Ltd [2016] NSWSC 1939 (before Brereton J in December 2016);

5. Re Australasian Barrister Chambers Pty Ltd (In Liq) [2017] NSWSC 597 (before Black J in April 2017);

6. ABCD Corporation Pty Ltd v Sampson [2017] NSWCA 117 (before Basten JA in May 2017);

7. In the matter of Australasian Barristers Chambers Pty Ltd [2019] NSWSC 799 (before Brereton J in February 2018); and

8. Re Australasian Barrister Chambers Pty Ltd [2019] NSWSC 1886 when, in December 2019, Black J heard Mr Sampson's application to have his remuneration as liquidator approved.

20. The affidavit evidence and judgments reveal that, in 2008, the Company was incorporated and entered into a Custodian Appointment Deed with ABCD Corporation. The Company became the registered proprietor of lots in a strata plan, being an office and storage space in barristers’ chambers in Sydney. The lots were held by the Company for the benefit of the beneficiaries of the Minasian Superannuation Fund. The trustee of the superannuation fund was ABCD Corporation.

21. In 2012, a dispute arose between the Company and the body corporate of the strata plan in relation to unpaid strata levies. In 2014, the Company also became embroiled in litigation with the Australian Bar Association and the New South Wales Bar Association over the unauthorised use of trademarks and domain names. The associations commenced proceedings against the Company in the Federal Court of Australia.

22. In September 2015, the body corporate issued a statutory demand to the Company on the basis of a judgment debt obtained in the Local Court of New South Wales for some $70,000. The body corporate commenced proceedings to appoint a liquidator to the Company. On 8 December 2015, Mr Sampson was appointed as liquidator. The next day, on 9 December 2015, a transfer of the lots in the strata plan from the Company to ABCD Corporation was registered. On 16 December 2015, Mr Sampson filed a submitting appearance save as to costs in the Federal Court proceedings.

23. In September 2016, Mr Sampson filed an Interlocutory Process seeking to be appointed as receiver to the assets of the superannuation fund. Mr Minus appeared at the hearing before Brereton J and opposed the relief sought in his capacity as a creditor. His Honour appointed Mr Sampson as receiver of the lots but stayed the order for six weeks to allow Mr Minus and ABCD Corporation to apply to terminate the winding up of the Company. No such application was made and, on 6 December 2016, the stay on the orders made by Brereton J lapsed. In May 2017, the lots were sold and the body corporate was paid.

24. In June 2017, Greenwood J gave judgment in the Federal Court proceedings finding that the Company had engaged in misleading and deceptive conduct and, in July 2017, made costs orders against the Company. In August 2017, Mr Sampson filed his Interlocutory Process, prayer 6 of which is now before the Court. In January 2018, the associations’ costs of the Federal Court proceedings were taxed such that the Company was obliged to pay some $195,000 to the Australian Bar Association and some $83,000 to New South War Bar Association.

20. In June 2019, Brereton J determined Mr Sampson’s claim for remuneration for work done as receiver. On 21 August 2019, the Company’s creditors met. Mr Minus attended. Four creditors were admitted for voting purposes: the Australian Bar Association, New South Wales Bar Association, ABCD Corporation and Mr Minus. ABCD Corporation and Mr Minus voted against approving Mr Sampson’s remuneration and thus the resolution was not passed. Ultimately, after a two day hearing before Black J in December 2019, Mr Sampson’s remuneration was approved in full.

21. Mr Sampson deposed that, as receiver, he had been involved in numerous litigious disputes with ABCD Corporation and Mr Minus. Mr Sampson described a difficult relationship with Mr Minus in the context of a multiplicity of proceedings which ABCD Corporation and other companies associated with him have brought against him as receiver.

22. The liquidator’s senior counsel submitted that Mr Sampson has made several applications, or has had several applications made against him, over the course of the receivership and liquidation. All of these applications have involved Mr Minus in one form or another, either as barrister, director or personally, as an opponent. Whilst Mr Sampson deposes that he has made no default and is not aware of any claim, experience tells of a risk of a baseless complaint being made against Mr Sampson for what he has done whilst liquidator, including the sale of Mr Minus’ barristers’ chambers. It was submitted that Mr Sampson’s application for a release was not idly made and he was worthy of the protection of the Corporations Act. It was submitted that the mere fact of so many judgments tells a story itself about the prospect that there may be litigation commenced against Mr Sampson for no good reason.

Principles

28. Section 480 of the Corporations Act provides:

Release of liquidator and deregistration of company

When the liquidator:

(a)   has realised all the property of the company or so much of that property as can in his or her opinion be realised without needlessly protracting the winding up, and has distributed a final dividend (if any) to the creditors and adjusted the rights of the contributories among themselves and made a final return (if any) to the contributories; or

(b)   has resigned or has been removed from office;

he or she may apply to the Court:

(c)   for an order that he or she be released; or

(d)   for an order that he or she be released and that ASIC deregister the company.

29. In the event that an order is made that a liquidator be released, then section 481(3) and (4) of the Corporations Act provides:

Orders for release or deregistration

…

(3)   An order of the Court releasing the liquidator discharges him or her from all liability in respect of any act done or default made by him or her in the administration of the affairs of the company or otherwise in relation to his or her conduct as liquidator, but any such order may be revoked on proof that it was obtained by fraud or by suppression or concealment of any material fact.

(4)   Where the liquidator has not previously resigned or been removed, his or her release operates as a removal from office.

30. When such an application might be appropriate was explained by Black J in Re RH Trevan Pty Ltd (in liq); Trevan Auto Service Pty Ltd (in liq); Trevan Car Sales Pty Ltd (in liq) [2013] NSWSC 1445 at [16]:

…where a liquidator has realised all of the company's property or so much of that property as can, in his or her opinion, be realised without needlessly protracting the winding up, and has distributed any final dividend to the creditors and adjusted the rights of the contributories among themselves and made any final return to the contributories, he or she may apply to the Court for an order that he or she be released and that ASIC deregister the company.

31. His Honour also described the nature of an order under section 480 in In the matter of RR Impex Pty Ltd (in liquidation) [2013] NSWSC 1667 at [3]:

The effect of such an order has been described as to "wipe the slate clean", subject to the limited exceptions set out in s 481(3): Singer v Trustee of the Property of Munro [1981] 3 All ER 215 at 219 (dealing with the corresponding English provisions in respect of a trustee in bankruptcy); Re Wayland as Liquidator of ABC Containerline NV (in liq) [2005] NSWSC 1; (2005) 52 ACSR 750 at [27]. The notification provisions in respect of such an application allow such an application to be the forum at which any claim that the liquidator has been deficient in performing his or her role should be advanced: Deputy Commissioner of Taxation v Tideturn Pty Ltd [2001] NSWSC 217; (2001) 37 ACSR 152; Re Wayland as liquidator of ABC Container Line NV (in liq) [2005] NSWSC 1; (2005) 52 ACSR 750 at [28]. It appears to be implicit in the structure of the sections and those notification requirements that, if the Court is satisfied that the relevant notifications have been given, no creditors have objected to the release of the liquidator or raised any concern as to the performance of his or her duties and the other evidence contemplated by the appropriate rules is placed before the Court, then the Court would ordinarily make an order releasing the liquidator, unless any reason emerges why it should not do so: Re Adellos Pty Limited (in liq) [2013] NSWSC 747 at [2]-[3].

See also Re Adellos Pty Ltd (in liq) [2013] NSWSC 747 at [3]; and Re One.Tel Ltd (in liq) [2014] NSWSC 1892 at [3].

32. A liquidator is required to prove, strictly, compliance with all of the prerequisites to a release: Re Autistic Therapy Society of Queensland Limited (in liq) (1981) 5 ACLR 658; (1981) 5 ACLR 658; Re Budget Floor Coverings Pty Ltd (in liq) (1982) 6 ACLR 657; (1982) 1 ACLC 312; Re Cardiff Coal Company (2014) 104 ACSR 135; [2014] NSWSC 1590 at [40] per Brereton J. Those requirements are set out in rule 7.5(3) of the Supreme Court (Corporations) Rules:

The supporting affidavit must include details of the following matters:

(a)   whether the whole of the company’s property has been realised or whether so much of the company’s property has been realised as, in the liquidator’s opinion, can be realised without needlessly protracting the winding up,

(b)    any calls made on contributories in the course of the winding up,

(c)    any dividends paid in the course of the winding up,

(d)    whether the committee of inspection (if any) has passed a resolution approving the liquidator’s release,

(e)    whether ASIC has caused books in relation to the company to be audited under section 70–15 of the Insolvency Practice Schedule (Corporations),

(f)    whether the Court has ordered a report on the accounts of the liquidator to be prepared,

(g)    whether any objection to the release of the liquidator has been received by the liquidator from:

(i)   an auditor appointed by ASIC or by the Court, or

(ii)    any creditor, contributory or other interested person,

(h) whether any report has been submitted by the liquidator to ASIC under section 533 of the Corporations Act,

(i)    whether the liquidator considers it necessary to report on the affairs of the company or any of its officers,

(j)    any property disclaimed in the course of the winding up,

(k)    any remuneration paid or payable to the liquidator and how such remuneration was determined,

(l)    any costs, charges or expenses payable by the liquidator if the Court grants the liquidator’s release,

(m) if the application is made under paragraph 480 (c) of the Corporations Act—the facts and circumstances by reason of which it is submitted that the company should not be deregistered.

33. Each of these matters are squarely addressed by Mr Sampson’s affidavit of 6 February 2020.

34. In addition, rule 7.5(6) of the Supreme Court (Corporations) Rules provides:

Unless the Court otherwise orders, the liquidator must serve by prepaid post, on each creditor who has proved a debt in the course of the winding up, and on each contributory, a copy of the interlocutory process accompanied by:

(a)    a copy of the summary of the liquidator’s receipts and payments in winding up the company, and

(b)    a copy of the statement of the financial position of the company at the date when the interlocutory process seeking release was filed.

35. Here, the creditors of the Company are:

1. The Australian Bar Association;

2. New South Wales Bar Association;

3. ABCD Corporation; and

4. Mr Minus.

The contributories are ABCD Corporation and Mr Minus. Each were served with the material required by the rule.

36. The importance of adhering to the requirements for service was explained by McLellan J in Re Austral Family Homes Pty Ltd (in liq) (1992) 8 ACSR 322; (1992) 28 NSWLR 247 at 249:

… However an order for release of the liquidator does terminate such liabilities: it operates to discharge the liquidator “from all liability in respect of any act done or default made by him in the administration of the affairs of the company or otherwise in relation to his conduct as liquidator” (s 382(3)). For this reason it is a matter of very considerable potential significance to creditors and contributories, and it is important that they have proper notice of any application for such a release: see generally, Re Autistic Therapy Society of Queensland Ltd (In Liq) (1981) 5 ACLR 658; ACLC 33,293; Re Budget Floor Coverings Pty Ltd (In Liq) (1982) 6 ACLR 657; 1 ACLC 313; Re Munro; Ex parte Singer v Trustee in Bankruptcy [1981] 1 WLR 1358; [1981] 3 All ER 215.

37. Examples of where the service requirements have been dispensed with include Re One.Tel, where Black J dispensed with the need to notify the 1,800 priority creditors and numerous unsecured creditors of One.Tel and instead permitted the special purpose liquidator to notify the committee of inspection only. His Honour considered that this was sufficient to satisfy the policy of the rule, “namely, that persons who might have reason to complain of the liquidator’s conduct should have an opportunity to disclose that complaint to the Court before he or she is released”: at [13]. In RR Impex, Black J dispensed with service on a creditor where the liquidator had endeavoured to serve a creditor at his last known address several times with no success: at [10]-[11].

38. In these proceedings alone, which have been on foot since 2015, I note that there have been 40 hearings – either procedural or substantive – which have generated 22 judgments of which eight have been published. Of Mr Minus’ opposition to Mr Samson’s remuneration, contested in December 2019, Black J noted at [3]:

It was difficult to identify any commercial logic underpinning ABCD’s approach to this application, where it seems unlikely that ABCD would ultimately achieve any substantial economic recovery as a creditor or contributory, given the amount of other creditors’ claims in the liquidation. ABCD’s approach has likely reduced the prospect that sufficient funds will be available in the liquidation to meet the liquidator’s remuneration and creditors’ claims, particularly if it is ultimately not possible for the liquidators to enforce an order or costs against ABCD where its asset position is unknown or against Mr Minus where he is bankrupt.

39. That is, commercial sense does not seem to be a factor in Mr Minus’ litigious choices. It is perhaps telling that his Honour approved every dollar sought by Mr Sampson in remuneration, noting that the liquidation had “generated an extraordinary amount of litigation”: at [4]. Another instance of this appears to have occurred after the hearing before Black J, when ABCD Corporation applied to reopen its case and further cross-examine Mr Sampson after Mr Minus had indicated the day before that his cross-examination was complete, ABCD Corporation had closed its case and Mr Marshall SC had made closing submissions for the liquidator on that basis: at [15].

40. It is readily apparent that Mr Sampson has been frequently challenged and sued by Mr Minus at, it would appear, every turn. There is every reason to think that this will not stop simply because Mr Sampson has completed his tasks as liquidator of the Company. This seems to me to be precisely the circumstance in which the Court may give a release, assuming that each of the requirements of section 480 of the Corporations Act and rule 7.5(3) of the Supreme Court (Corporations) Rules are fulfilled.

41. The affidavit of Mr Sampson does address each of the requirements of rule 7.5(3). No evidence was served by any other party. The Australian Bar Association and New South Wales Bar Association have advised in writing that they neither consent nor oppose the application. ASIC does not wish to intervene in this application.

42. There is no evidence that Mr Sampson has done other than performed his duties as a liquidator properly. I am satisfied by the evidence that this is a proper case for the release of the liquidator and an order that ASIC deregister the company. For these reasons I make the following order:

1. Pursuant to section 480 of the Corporations Act 2001 (Cth), order that David Henry Sampson be released and that the company, Australasian Barrister Chambers Pty Ltd, be deregistered.

Addendum

43. In the course of reviewing my ex tempore judgment, it became apparent that it is necessary to make a further order under rule 7.5(6) of the Supreme Court (Corporations) Rules 1999 (NSW) as each of the creditors and contributories have been served, but by email rather than prepaid post. Thus is it necessary for the Court to “otherwise order” under rule 7.5(6).

44. As a consequence, I have circulated this judgment in draft to the parties and invited them to make any submission as to whether they oppose an order being made in Chambers dispensing with the requirement under rule 7.5(6) of the Supreme Court (Corporations) Rules 1999 (NSW) that the liquidator serve the material identified in that rule “by prepaid post”.

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Decision last updated: 27 March 2020