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In the matter of Cyprus Community of N.S.W. Limited (Administrators Appointed)

In the matter of Cyprus Community of N.S.W. Limited (Administrators Appointed)

Case [2025] NSWSC 949 21 August 2025

Statutory Construction

Inconsistency of Laws

Corporate Law & Governance

Constitutional Law

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Supreme Court

New South Wales

Medium Neutral Citation: In the matter of Cyprus Community of N.S.W. Limited (Administrators Appointed) [2025] NSWSC 949
Hearing dates: 15 August 2025
Date of orders: 21 August 2025
Decision date: 21 August 2025
Jurisdiction: Equity - Corporations List
Before: Black J
Decision:
Parties to bring in agreed short minutes of order to give effect to this Judgment.

Catchwords:
CORPORATIONS — receivers and managers — powers — statutory construction — where administrators seek declaration that a disposal of the company’s property pursuant to s 437A(1)(c) Corporations Act 2001 (Cth) is not subject to the conditional prohibition in s 41E(3) Registered Clubs Act 1976 (NSW) — whether exercise of statutory power accorded to administrator constitutes an act of the company
CONSTITUTIONAL LAW — Commonwealth and State relations — inconsistency of laws — whether conditional prohibition in s 41E(3) Registered Clubs Act 1976 (NSW) directly inconsistent with administrator’s power of sale under s 437A(1)(c) Corporations Act 2001 (Cth)

Legislation Cited:
- Commonwealth Constitution, s 109
- Corporations Act 2001 (Cth), ss 5E, 5G, 437A, 437B
- Registered Clubs Act 1976 (NSW), s 41E(3)
- Security Industry Act 1997 (NSW)
- Registered Clubs Regulation 2009 (NSW), reg 19
- Registered Clubs Regulation 2015 (NSW), reg 29B(1)
- Uniform Civil Procedure Rules 2005 (NSW), r 7.6(2)(c)

Cases Cited:
- Banerjee v Commissioner of Police (2018) 98 NSWLR 730; [2018] NSWCA 283
- Brash Holdings Ltd v Shafir (1994) 14 ACSR 192
- Correa v Whittingham (2013) 278 FLR 310; [2013] NSWCA 263
- Freeman, Re Regional Express Holdings Ltd (admins apptd) [2024] FCA 929
- McMillan v Coolah Home Base Pty Ltd [2024] NSWCA 138
- Re Bacchus Distillery Pty Ltd (2014) 98 ACSR 539; [2014] VSC 111
- Re Cyprus Community of NSW Ltd [2024] NSWSC 1629
- Re Kijurina [2014] FCA 1421
- Re Livingstone, Vertical 4 Pty Ltd [2025] FCA 382
Re Mableson (Admin), Bibere Australian Beverages Pty Ltd t/as Fox Creek Wines (Admins Apptd) [2025] FCA 533
- Re Munja Bakehouse Pty Ltd [2024] NSWSC 6
- Re Resnick, Toplace Pty Ltd [2023] FCA 1086
- Re Smith; Berowra RSL Bowling and Community Club Ltd (2006) 58 ACSR 410; [2006] NSWSC 780
- Scott v Port Hinchinbrook Services Ltd [2018] 1 Qd - R 319; (2017) 121 ACSR 355; [2017] QSC 092
- Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428; [2019] HCA 2

Category: Procedural rulings
Parties: Morgan John Kelly and David Anthony Kennedy in their capacity as joint and several administrators of Cyprus Community of N.S.W. Limited (Administrators Appointed) (First Applicants)
Cyprus Community of N.S.W. Limited (Administrators Appointed) (Second Applicant)
Helen Anastasiou (First Respondent)
Representation:
Counsel:
J Hutton SC / K Woodforde (Applicants)
DL Cook SC / P Santucci (Respondent)
Solicitors:
Gilbert + Tobin (Applicants)
Marque Lawyers (Respondent)

File Number(s): 2024/389403 (006)

JUDGMENT

Nature of the application and background

By Amended Interlocutory Process dated 23 July 2025, the Applicants, Messrs Kelly and Kennedy in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: In the matter of Cyprus Community of N.S.W. Limited (Administrators Appointed) [2025] NSWSC 949
Case: [2025] NSWSC 949
Decision Date: 21 August 2025

CaseChat Overview and Summary

The matter before the court involved Cyprus Community of N.S.W. Limited, where administrators had been appointed. The administrators sought a declaration that a disposal of the company's property, made pursuant to section 437A(1)(c) of the Corporations Act 2001, was not subject to the conditional prohibition contained in section 41E(3) of the Registered Clubs Act 1976. The dispute centred on whether the exercise of the statutory power accorded to the administrator constituted an act of the company, and if so, whether this was directly inconsistent with the prohibition set out in the Registered Clubs Act.

The court was required to determine the extent of the powers of the administrators under the Corporations Act and whether these powers were subject to any limitations imposed by the Registered Clubs Act. Specifically, the court had to interpret the relevant provisions of both statutes to ascertain whether the administrator's power to dispose of property could be exercised in a manner that circumvented the prohibition in the Registered Clubs Act. Additionally, the court needed to address the issue of whether the administrator's actions could be considered acts of the company for the purposes of the prohibition.

In reaching its decision, the court examined the statutory provisions and their interactions, finding that the exercise of the administrator's power under the Corporations Act did not constitute an act of the company for the purposes of the prohibition in the Registered Clubs Act. The court held that the administrators were entitled to dispose of the company's property without being bound by the conditional prohibition in the Registered Clubs Act, provided that the disposal was in accordance with the Corporations Act. The court also concluded that there was no direct inconsistency between the two statutes, as the prohibition in the Registered Clubs Act did not apply to the actions of the administrators in their capacity as such.

The final orders of the court were that the administrators were entitled to dispose of the company's property without being subject to the conditional prohibition in section 41E(3) of the Registered Clubs Act, provided that the disposal was conducted in accordance with the Corporations Act. The court's decision clarified the scope of the administrators' powers and the interaction between the two statutes, providing a resolution to the dispute in favour of the administrators.

Orders