In the Matter of Trussted Frames and Trusses Pty Limited
[2015] NSWSC 2025
•23 March 2015
Supreme Court
New South Wales
Medium Neutral Citation: In the Matter of Trussted Frames and Trusses Pty Limited [2015] NSWSC 2025 Hearing dates: 23 March 2015 Date of orders: 23 March 2015 Decision date: 23 March 2015 Jurisdiction: Equity - Corporations List Before: Brereton J Decision: Special leave to distribute surplus in winding up to shareholders granted.
Catchwords: CORPORATIONS – winding up – liquidators – distribution of surplus by liquidator – final distribution following prior interim order for distribution – dispensation of requirement to annex a schedule in Form 551 Legislation Cited: (Cth) Corporations Act 2001, s 488(2)
(Cth) Corporations Regulations 2001, reg 5.6.71(1)
(NSW) Supreme Court (Corporations) Rules 1999, r 7.9Cases Cited: Brealey v Shields [2009] NSWSC 1148
In the Matter of Trussted Frames and Trusses Pty Limited [2012] NSWSC 787Category: Procedural and other rulings Parties: James Alexander Shaw as official liquidator of Trussted Frames & Trusses (Holdings) Pty Limited (in official liquidation) ACN 050 332 584 (applicant/ plaintiff)
Trussted Frames & Trusses (Holdings) Pty Limited (in official liquidation) ACN 050 332 584 (respondent/ defendant)Representation: Counsel:
Solicitors:
D Robertson (applicant/plaintiff)
Harris Wheeler Lawyers (applicant/plaintiff)
File Number(s): 2009/288190
Judgment (ex tempore)
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HIS HONOUR: On 28 June 2012, the Court made orders granting the liquidator special leave to make an interim distribution of surplus to each of the six shareholders of the company Trussted Frames & Trusses Pty Limited [In the Matter of Trussted Frames and Trusses Pty Limited [2012] NSWSC 787]. By interlocutory process filed on 20 December 2014, the liquidator now seeks special leave to make a final distribution of surplus.
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The relevant principles and considerations were referred to in the judgment on the application for leave to make an interim distribution. The evidence establishes that there is surplus available for distribution, although it is not possible precisely to quantify it, in particular since interest continues to accrue on funds held, and the liquidator's remuneration may be subject to an application to the Court, and has not yet been assessed and approved.
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Accordingly, the liquidator seeks an order dispensing with the requirement to annex a schedule in Form 551 and instead approving a distribution of the surplus amongst the six shareholders in equal shares. That, in a straightforward case, such an order may be made was held by Barrett J, as his Honour then was, in Brealey v Shields [2009] NSWSC 1148.
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The affidavit of Mathew Thomas Mario Smith of 5 February 2015 establishes that notice, as required by (NSW) Supreme Court (Corporations) Rules 1999, r 7.9, was published on 14 January 2015 – that is to say, more than fourteen days before the date of hearing – in the Sydney Morning Herald.
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The Court orders that:
Pursuant to (Cth) Corporations Regulations 2001, reg 5.6.71(1), the order authorising distribution of surplus to a person entitled to it need not have annexed to it a schedule in accordance with Form 551.
Pursuant to (Cth) Corporations Act 2001, s 488(2), the liquidator have special leave to distribute the surplus in the winding up of Trussted Frames & Trusses (Holdings) Pty Limited ACN 050 332 584 to Steve Veale of 34 Park Royal Drive, Floraville NSW 2280; Lana Veale of 34 Park Royal Drive, Floraville NSW 2280; Hilton Smith of 1 Athlone Way, Maryland NSW 2287; Ann Smith of 1 Athlone Way, Maryland NSW 2287; Norman Gilsenan of 121 Grandview Road, New Lambton NSW 2305; and Lynette Gilsenan of 121 Grandview Road, New Lambton NSW 2305, in equal one-sixth shares.
The liquidator may recoup his costs and expenses of this application on the indemnity basis out of the assets of the company before striking the surplus to be distributed.
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Decision last updated: 18 February 2016
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