Supreme Court
New South Wales
Medium Neutral Citation: In the matter of Kirby Street (Holding) Pty Limited [2011] NSWSC 1576 Hearing dates: 12 October 2011 and written submissions of 21 October 2011, 15 November 2011 and 28 November 2011 Decision date: 16 December 2011 Jurisdiction: Equity Division - Corporations List Before: Barrett J Decision: See paragraph 3
Catchwords: CORPORATIONS - winding up - pooling - form of ancillary orders Legislation Cited: Corporations Act 2001 (Cth), ss 579E, 579G Cases Cited: Re Kirby Street (Holding) Pty Ltd [2011] NSWSC 1536 Category: Consequential orders Parties: David John Frank Lombe - Plaintiffs Representation: Mr M B Oakes SC - Plaintiffs
Freehills - Plaintiffs
File Number(s): 2011/00297593
Judgment
Following publication of reasons on 14 December 2011 ( Re Kirby Street (holding) Pty Ltd [2011] NSWSC 1536), the liquidator has submitted short minutes of the orders to be made.
In particular, the liquidator has formulated the precise ancillary orders required to deal with the matters discussed at paragraphs [97] to [105] of the principal judgment.
The orders of the court are as follows
1. Order pursuant to section 579E(1) of the Corporations Act 2001 (Cth) that the companies in the schedule to these orders, being the second plaintiffs and the defendant, are a pooled group for the purposes of section 579E of that Act.
2. Order pursuant to section 579G(1)(d) of the Corporations Act 2001 (Cth), that the application of that Act in relation to the winding up of the companies in the schedule to these orders be modified so that:
(a) section 539 has effect as if the following additional paragraph were included in subsection (7) immediately before paragraph (c):
(bb) the accounts (including assets, receipts and payments) under subsection (1) for the companies in the group may be consolidated;
(b) section 548A has effect as if the following additional subsections were included therein:
(6) For the purposes of this section, the "ADR Group" is the companies listed in the schedule to the orders made by the Supreme Court of New South Wales on 16 December 2011 in proceedings No 297593 of 2011.
(7) On and from 16 December 2011 the committee of inspection for the ADR Group for the purposes of subsection (1) is taken to consist of Craig O'Sullivan, Mark Hurdis, Kathryn Tebbutt and John Zuqaing without the need for any meeting.
3. Order that the costs of these proceedings (including reserved costs) be costs in the pooled windings up of the said companies.
4. Grant lberty to apply for variation of these orders pursuant to section 579F or 579H of the Corporations Act or otherwise on 2 days' notice.
SCHEDULE TO THESE ORDERS
Company
ACN
Angzol Pty Limited (In Liquidation)
109 316 350
Armmate Pty Limited (In Liquidation)
104 711 891
Arnnete Pty Limited (In Liquidation)
104 727 924
Kirby Street (Holding) Pty Limited (Receivers and Managers Appointed) (In Liquidation)
116 849 113
Kirby Street (Finance) Pty Limited (In Liquidation)
117 268 532
Kirby Street (Logistics) Pty Limited (In Liquidation)
103 305 700
Kirby Street (Trading) Pty Limited (Receivers and Managers Appointed) (In Liquidation)
117 238 945
Blue Spike Pty Limited (In Liquidation)
092 192 204
Bluebend Pty Limited (In Liquidation)
098 726 526
Bluepeer Pty Limited (In Liquidation)
098 726 553
Caloundra Retail Co Pty Limited (In Liquidation)
108 773 208
Cashbound Pty Limited (In Liquidation)
095 230 407
Cashbuild Pty Limited (In Liquidation)
095 241 875
Kirby Street (Ipswich) Pty Limited (In Liquidation)
050 403 695
Kirby Street (Warwick) Pty Limited (In Liquidation)
073 395 838
Kirby Street (Dalby) Pty Limited (In Liquidation)
074 910 946
Kirby Street (Nth Qld) Pty Limited (In Liquidation)
058 407 471
Kirby Street (CC Retail) Pty Limited (In Liquidation)
092 197 914
DPCo Pty Limited (In Liquidation)
117 640 310
Fireright Pty Limited (In Liquidation)
095 578 386
Freshfame Pty Limited (In Liquidation)
102 337 164
Garden Pty Limited (In Liquidation)
071 458 930
General Variety Pty Limited (In Liquidation)
097 076 447
Goralin Pty Limited (In Liquidation)
087 268 719
Group Variety Pty Limited (In Liquidation)
097 076 401
GSCo Pty Limited (In Liquidation)
117 640 301
Imagewatch Pty Limited (In Liquidation)
102 323 786
ITCo Pty Limited (In Liquidation)
117 640 338
Look Sharp Concepts Pty Limited (In Liquidation)
003 116 621
Makro Cannon Park Pty Limited (In Liquidation)
105 140 752
Makro Toowoomba Pty Limited (In Liquidation)
107 491 618
Mallwalk Pty Limited (In Liquidation)
102 324 569
Moneycure Pty Limited (In Liquidation)
098 727 596
O'Neills Property Company Pty Limited (In Liquidation)
095 230 416
Queensland Discounters Pty Limited (Receivers and Managers Appointed) (In Liquidation)
097 076 410
Shopping Variety Pty Limited (In Liquidation)
097 076 367
State Group Pty Limited (In Liquidation)
097 076 385
Sungate Pty Limited (Receivers and Managers Appointed) (In Liquidation)
010 497 551
Youngdown Pty Limited (Receivers and Managers Appointed) (In Liquidation)
003 393 548
Discount Variety Group Pty Limited (In Liquidation)
O96 097 719
**********
- AGLC
- In the matter of Kirby Street (Holding) Pty Limited [2011] NSWSC 1576
- Case
- [2011] NSWSC 1576
- Decision Date
CaseChat Overview and Summary
The primary legal issue revolved around the interpretation of the relevant sections of the Corporations Act 2001, particularly focusing on how ancillary orders should be formulated and executed. The court had to consider the statutory requirements and case law precedents that guide the winding up process. It was essential to ensure that the orders reflected the statutory provisions accurately while also considering the equitable principles that govern the distribution of assets to creditors.
The court's reasoning was grounded in a comprehensive analysis of the statutory provisions and the established legal principles. It concluded that the ancillary orders should be framed in a manner that ensures compliance with the legislative requirements while also providing for a fair and equitable distribution of the company's assets. The court held that the liquidators' application for specific directions was well-founded and aligned with the statutory objectives of the winding up process. The decision underscored the importance of balancing the statutory framework with equitable considerations to achieve a just outcome for all stakeholders involved. The court's decision provided clear guidance on the form and content of the ancillary orders, thereby facilitating an orderly and transparent winding up process.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.