In the matter of Hunter Aged Care Foundation Limited (in liquidation)

The Hunter Aged Care Foundation Limited, in liquidation, sought special leave to distribute surplus funds. The Foundation's constitution provided that if the board did not determine how to distribute the surplus prior to winding up, an application could be made to the Court. The liquidators applied for special leave under the Corporations Act 2001 (Cth) to distribute the surplus funds, and the Court was required to decide if it could grant special leave and whether the liquidators could distribute assets in a 'Gift Fund'. The Foundation's constitution allowed the board to distribute the Gift Fund to certain 'ATO-Endorsed Entities' at its discretion, but the liquidators sought to exercise this discretion.

The Court considered whether special leave could be granted and whether the liquidators could exercise the board's discretion to distribute the Gift Fund. The Court also considered whether it could make a direction approving the distribution of the Gift Fund and surplus assets under section 90-15 of the Insolvency Practice Schedule (Corporations). The Court found that the liquidators could exercise the board's discretion to distribute the Gift Fund, and that the Court could make a direction approving the distribution of the Gift Fund and surplus assets.

The Court held that the liquidators could exercise the board's discretion to distribute the Gift Fund, as the constitution conferred this discretion on the liquidators as representatives of the company. The Court also found that it could make a direction approving the distribution of the Gift Fund and surplus assets under section 90-15 of the Insolvency Practice Schedule (Corporations). The Court held that the liquidators' application for special leave was well-founded and granted the application. The liquidators were authorised to distribute the surplus funds, including the Gift Fund, in accordance with the Foundation's constitution.

The Court ordered that the liquidators could distribute the surplus funds, including the Gift Fund, in accordance with the Foundation's constitution. The liquidators were authorised to exercise the board's discretion to distribute the Gift Fund to certain 'ATO-Endorsed Entities'. The Court also made a direction approving the distribution of the Gift Fund and surplus assets under section 90-15 of the Insolvency Practice Schedule (Corporations). This decision provides clarity on the role of liquidators in distributing surplus funds and the Court's power to approve such distributions.