Supreme Court
New South Wales
Medium Neutral Citation: In the matter of Dave Lahood Pty Limited [2015] NSWSC 2051 Hearing dates: 27 April 2015 Date of orders: 27 April 2015 Decision date: 27 April 2015 Jurisdiction: Equity - Corporations List Before: Brereton J Decision: Order for interim distribution of surplus made.
Catchwords: CORPORATIONS – winding up – liquidators – distribution of surplus – application for special leave to distribute surplus – special leave granted. Legislation Cited: (Cth) Corporations Act 2001, s 488(2)
(Cth) Corporations Regulations 2001, reg 5.6.71
(NSW) Supreme Court (Corporations) Rules 1999, reg 7.9Category: Procedural and other rulings Parties: Paul Andrew Leroy as trustee in the bankrupt estate of David Lahood (plaintiff)
Dave Lahood Pty Limited ACN 079 981 838 (defendant)
Simon Cathro and Phillip Campbell-Wilson as liquidators of Dave Lahood Pty Limited (in liquidation) (applicants)Representation: Counsel:
Solicitors:
D Anderson (applicants)
B Katekar (plaintiff)
Bartier Perry (plaintiff)
ERA Legal (applicants)
File Number(s): 2013/145558
Judgment (ex tempore)
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HIS HONOUR: The applicants Simon Cathro and Phillip Campbell-Wilson were appointed provisional liquidators of the company Dave Lahood Pty Limited on the application of the plaintiff Paul Andrew Leroy as trustee of the bankrupt estate of David Lahood by order made on 10 May 2013. The company was wound up and they were appointed liquidators by order made on 2 September 2013. The liquidators have realised the assets, called for proofs of debt, and paid all known creditors, and there remains after payment of creditors some $875,918. By interlocutory process filed on 2 April 2015, the applicant liquidators apply for special leave pursuant to (Cth) Corporations Act 2001, s 488(2), to make an interim distribution of surplus to the plaintiff who is the trustee in bankruptcy of the sole contributory Dave Lahood.
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On an application under Corporations Act, s 488, the Court's principal concern is to be satisfied that all appropriate steps have been taken to identify creditors and that surplus in fact exists.
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The evidence establishes that a notice of the application in accordance with the requirements of (NSW) Supreme Court (Corporations) Rules 1999, reg 7.9, has been published, more than 14 days before the hearing date. The liquidator proposes to withhold a sum of $137,000 approximately on account of estimated further remuneration and disbursements until finalisation of the liquidation, including an application for their release and some provision for contingencies. A final report to creditors has been issued. Creditors have been paid in full, and statutory interest has been paid to all creditors. The Deputy Commissioner of Taxation has provided a tax clearance certificate. I am satisfied that there is a surplus, at least to the extent proposed to be distributed, and that the requisite formal steps have been taken.
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The Court orders that:
The liquidators have special leave pursuant to Corporations Act, s 488(2), to make an interim distribution of surplus funds in the name of Dave Lahood Pty Limited in the sum of $738,668 to Paul Andrew Leroy as trustee of the bankrupt estate of David Lahood.
Pursuant to (Cth) Corporations Regulations 2001, reg 5.6.71, this order need not have annexed to it a schedule in accordance with form 551.
Leave be reserved to the applicants to apply for special leave to make a further and final distribution.
Upon receipt of a form of transfer of the shares in the defendant executed by the plaintiff as transferor and David Lahood as transferee, the applicant register that transfer.
The costs of this application be paid from the assets of the company.
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The Court notes that as between the applicants and the plaintiff it has been agreed that the distribution will be made within seven days.
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- AGLC
- In the matter of Dave Lahood Pty Limited [2015] NSWSC 2051
- Case
- [2015] NSWSC 2051
- Decision Date
CaseChat Overview and Summary
The court examined the actions taken by the liquidators in relation to the distribution of the surplus. It considered whether the liquidators had acted within their authority and followed the proper legal procedures. The court also evaluated whether the liquidators had provided adequate notice to the shareholders and whether the distribution complied with the requirements set out in the Corporations Act. The central issue was whether the liquidators' actions were reasonable and in the best interests of the shareholders.
The court found that the liquidators had discharged their duties appropriately and that the distribution of the surplus was in accordance with the statutory requirements. The court was satisfied that the liquidators had given adequate notice to the shareholders and that the distribution process was fair and equitable. Consequently, the court granted the application for special leave, allowing the liquidators to distribute the surplus to the shareholders. The court's decision was grounded in the principle that the liquidators had acted within their legal powers and had fulfilled their obligations to the shareholders.
The final orders of the court permitted the liquidators to proceed with the distribution of the surplus assets to the shareholders of Dave Lahood Pty Limited. The liquidators were authorised to distribute the surplus in accordance with the terms of the court's decision, ensuring that the shareholders' interests were protected and that the distribution complied with the relevant legal standards.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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