In the matter of Sydney Residential Pty Limited ACN 082 933 855
[2015] NSWSC 2024
•23 March 2015
Supreme Court
New South Wales
Medium Neutral Citation: In the matter of Sydney Residential Pty Limited ACN 082 933 855 [2015] NSWSC 2024 Hearing dates: 23 March 2015 Date of orders: 23 March 2015 Decision date: 23 March 2015 Jurisdiction: Equity - Corporations List Before: Brereton J Decision: Winding-up terminated; Costs and remuneration of liquidator approved.
Catchwords: CORPORATIONS – winding up – winding up in insolvency – application for termination of winding up – where company does not trade – whether company can be safely returned to management of directors; CORPORATIONS – liquidators – liquidator remuneration – where amount of remuneration agreed between the parties – costs of application for termination of winding up – where liquidator not required to file evidence or process. Legislation Cited: (Cth) Corporations Act 2001, s 482 Category: Procedural and other rulings Parties: Sydney Residential Pty Limited (in liquidation) ACN 082 933 855 (first applicant/defendant)
Murray William Howe (second applicant)
Yolanda Churchyard (first respondent/plaintiff)
Andrew John Scott in his capacity has liquidator of Sydney Residential Pty Limited (in liquidation) ACN 082 933 855 (second respondent)Representation: Counsel:
Solicitors:
M Klooster (applicant/defendant)
H McLeod (respondents)
Sydney City Lawyers (applicants/defendant)
Mercantile Legal (respondents)
File Number(s): 2014/247504
Judgment (ex tempore)
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HIS HONOUR: On 23 September 2014, the Registrar made an order that the defendant company Sydney Residential Pty Limited ACN 082 933 855 be wound up in insolvency and a liquidator appointed. The winding-up order was made for failure to comply with a creditor's statutory demand which demanded a sum of $3,300. As it appears on the evidence now available, that debt was incurred not by the subject company but by another company with a similar name, and the debt was paid by that other company shortly after the appointment of the liquidator.
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The liquidator's remuneration and expenses in the agreed sum of $15,000 have also been paid, as have the petitioning creditor's costs in the sum of $6,139.
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The company has never traded, its function being essentially to preserve the name Sydney Residential, which is used in a business operated by the other company to which I have referred. The director has put in place arrangements to ensure that the confusion which led to the problem in this case does not recur.
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The evidence indicates that the demand and the winding-up notice, for some reason or another, probably connected with service at a registered office which was occupied by a firm of accountants that had no other function in connection with the company than to be the registered office, did not come to the notice of the defendant.
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By interlocutory process filed on 10 March 2015, the company and its director purported to apply for an order pursuant to (Cth) Corporations Act 2001, s 482, terminating the winding-up. By amended interlocutory process filed in court today, that application is now made by the company's sole shareholder, Dixon Real Estate Pty Limited.
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The circumstances which warranted the company's being placed into liquidation no longer exist. Its only outstanding debt has been paid. As this is a case in which it is not intended that the company trade, it is not necessary that the Court be comfortably satisfied the company has sufficient assets with which to return to trade. In short, the Court can be satisfied the company can safely be returned to the control and management of its directors.
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The liquidator seeks an order releasing to the liquidator the sum of $15,000 which has been paid on account of his remuneration. Having regard to the circumstances that there have been no assets for the liquidator to get in, no creditors for the liquidator to pay, and the director provided on 17 November 2014 a report as to affairs, it is to my mind very difficult to see how remuneration of that amount could have been incurred. However, it has been agreed between the parties and, as the applicant and the company are the only persons with a real interest in it, I should abide by that agreement and approve that sum as the liquidator's remuneration and expenses.
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The liquidator also seeks an order for his costs of the termination application and tenders his solicitor's invoice for $5,100. That amount apparently has been incurred between 4 March and 23 March. It includes a number of internal attendances, apparently with one solicitor "discussing matter with colleague" on several occasions. It also includes, so it seems, telephone calls to counsel regarding instructions, when counsel has not appeared for the liquidator on the hearing.
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This was a very straightforward application that has involved the liquidator in preparing and adducing no evidence and filing no process and, given what I regard the generous allowance of $15,000 for remuneration and costs, I am not prepared to allow more than $2,000 plus GST for the liquidator's costs of this application. How that is sorted out between the liquidator and his solicitors with reference to the $15,000 is a matter between them.
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The court therefore orders that:
Pursuant to Corporations Act, s 482(1), the winding-up of the defendant be terminated with effect from this day;
The applicant, Dixon Real Estate Pty Limited, pay the liquidator's costs of this application fixed in the sum of $2,200 inclusive of GST;
The liquidator's remuneration inclusive of expenses be approved in the sum of $17,200, such sum including the costs payable pursuant to the above order.
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Decision last updated: 18 February 2016
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