In the matter of Catombal Investments Pty Limited

[2015] NSWSC 1997

Supreme Court

New South Wales

Medium Neutral Citation:	In the matter of Catombal Investments Pty Limited [2015] NSWSC 1997
Hearing dates:	20 April 2015
Date of orders:	20 April 2015
Decision date:	20 April 2015
Jurisdiction:	Equity - Corporations List
Before:	Brereton J
Decision:	Leave granted for final distribution of surplus; remuneration of liquidator approved; liquidator released.
Catchwords:	CORPORATIONS – winding up – liquidators – application for leave to make final distribution of surplus – where surplus exists – where no further claims on company.   CORPORATIONS – winding up – liquidators – liquidator’s remuneration – application for approval of proposed remuneration by the court – where all creditors have been paid and approval of creditors cannot first be obtained – where amount is reasonable.
Legislation Cited:	(CTH) Corporations Act 2001, s 473(3), s 480(d), s 488(2) (CTH) Corporations Regulations 2001, reg 5.6.71(1) (NSW) Supreme Court (Corporations) Rules 1999, r 7.5(5), r 7.5(6) (NSW) Trustee Act 1925, s 63
Cases Cited:	In the matter of Angstrom Assets Pty Ltd (in liq) [2014] NSWSC 1779 In the matter of Catombal Investments Pty Limited [2014] NSWSC 313
Category:	Procedural and other rulings
Parties:	Christopher Mel Chamberlain as liquidator of Catombal Investments Pty Ltd (in liquidation) (plaintiff) Brian Munro (interested party)
Representation:	Counsel: D R Sulan (plaintiff) J Harrowell (Brian Munro)   Solicitors: TressCox Lawyers (plaintiff)
File Number(s):	2013/357540

Judgment (ex tempore)

1. HIS HONOUR: The company Catombal Investments Pty Limited was wound up by order of the Court on 26 June 2012 on the just and equitable ground. On 20 March 2014, orders were made granting special leave to the liquidator to distribute a sum of $6,447,452 as surplus to each of the shareholders Royce Munro, Graham Munro and Brian Munro [see In the matter of Catombal Investments Pty Limited [2014] NSWSC 313]. By an interlocutory process filed on 6 March 2005, the liquidator now applies for special leave, pursuant to (CTH) Corporations Act 2001, s 488(2), to make a final distribution of surplus and, in addition, an order pursuant to s 480(d) releasing him as liquidator and that ASIC deregister the company. Judicial advice is also sought that the liquidator, who concurrently is the trustee of the Munro Unit Trust and the Munro Family Trust, which are entities related, at least in the broad sense, to the company, would be justified in exercising his discretion as trustee to vest those trusts.

2. The application for a release cannot be taken further until the final distribution has been made, and it is suggested that that be adjourned to a later date, to enable the distribution to be completed. I propose to adjourn it for seven days, to the Corporations List next Monday, but to reserve leave to apply in chambers in the meantime, in which case there will be no necessity for an appearance on that occasion.

3. I referred in the 20 March 2014 judgment to the general principles relating to the grant of special leave to make a distribution of surplus. Those requirements have been satisfied here. It is clear that there is a surplus, and there appear to be no further claims on the company. The requisite procedural steps by way of notification and advertisement have been taken.

4. The liquidator seeks approval of his remuneration for the period from 12 September to 13 April, and from 14 April until deregistration, in circumstances where all creditors have now been paid, so that it is not possible for the approval of creditors to be obtained. In such circumstances, it is open to the Court to approve remuneration [see In the matter of Angstrom Assets Pty Ltd (in liq) [2014] NSWSC 1779].

5. The amounts claimed appear to be reasonable. The shareholders have been notified of the application; two of them have not appeared to oppose it, and the third appears and consents. In those circumstances, I see no reason not to approve the remuneration sought.

6. The trustee of both of the trusts in question has a discretion to appoint a vesting date earlier than what would otherwise be the vesting date of each of those trusts. The process which has been undertaken has included, in effect, the winding up of those trusts, and it is appropriate to advise the trustee that he would be justified in causing those trusts now to vest.

7. The Court orders that:

1. Pursuant to Corporations Act, s 488(2), the plaintiff has special leave to make a distribution of the surplus in the winding up of Catombal Investments Pty Limited (In liquidation) to each of the shareholders of company as follows:

1. Brian Munro in the sum of $103,344.97.

2. Graham Munro in the sum of $103,344.98.

2. Pursuant to (CTH) Corporations Regulations 2001, reg 5.6.71(1), a schedule in accordance with form 551 need not be annexed to the order.

3. Pursuant to Corporations Act, s 473(3)(b)(ii), the plaintiff's remuneration

1. for the period 12 September 2014 to 13 April 2015 inclusive is determined to be $8,903.89 including GST; and

2. the plaintiff's remuneration for the period from 14 April 2015 until and including the deregistration of Catombal Investments Pty Limited, is determined to be up to a maximum sum of $2,200 including GST.

4. Pursuant to (NSW) Trustee Act 1925, s 63, the plaintiff would be justified in exercising his power as trustee of the Munro Unit Trust and of the Munro Family Trust to declare or appoint the vesting day of each of those trusts.

5. In connection with the application under Corporations Act, s 480(d), (NSW) Supreme Court (Corporations) Rules 1999, rule 7.5(5) and rule 7.5(6), be dispensed with.

The Court notes that:

6. The liquidator intends to deliver final cheques in accordance with the order made in paragraph 1 by 5pm on 21 April 2015.

The Court further orders that:

7. the application for an order pursuant to s 480(d) that the plaintiff be released as liquidator be adjourned to 27 April 2015 at 10am in the Corporation Judge's directions list.

8. Liberty be reserved to the liquidator to apply, by lodging with my associate an affidavit proving payment of the cheques by way of final distribution, for that order in chambers in the meantime.

9. The plaintiff's costs and expenses of this application be paid out of the assets of the company in liquidation.

**********

Decision last updated: 22 January 2016