In the matter of Vision Forklifts Pty Ltd (in liq)

[2020] NSWSC 243

Supreme Court

New South Wales

Medium Neutral Citation:	In the matter of Vision Forklifts Pty Ltd (in liq) [2020] NSWSC 243
Hearing dates:	16 March 2020
Date of orders:	16 March 2020
Decision date:	17 March 2020
Jurisdiction:	Equity - Corporations List
Before:	Gleeson J
Decision:	Pursuant to s 568F(1) of the Corporations Act 2001 (Cth), the amount of $6,635.44 being the surplus funds available from the sale of disclaimed property, being a 2013 Manitou MH25-4T bearing serial number 923430, vest in the applicant, Bruce Gleeson in his capacity as liquidator of Vision Forklifts Pty Ltd ACN 154 064 267.
Catchwords:	CORPORATIONS – winding up – where company in liquidation – where property of company disclaimed by liquidator – Corporations Act 2001 (Cth) s 568(1) – where sale of company property generated surplus funds – application to vest surplus funds in applicant liquidator – Corporations Act s 568F(1) – vesting order made
Legislation Cited:	Corporations Act 2001 (Cth), ss 568, 568A(1)(b), 568F(1)
Cases Cited:	Re Middle Harbour Investments Ltd (in liq) and the Companies Act (1977) 2 NSWLR 652
Category:	Principal judgment
Parties:	Rough Terrain Plant Hire Pty Ltd (Plaintiff) Vision Forklifts Pty Ltd (Defendant) Bruce Gleeson in his capacity as liquidator of Vision Forklifts Pty Ltd (in liq) (Applicant)
Representation:	Counsel: H Warren (sol) (Applicant)   Solicitors: CCSG Legal Pty Ltd (Applicant)
File Number(s):	2018/51429

Judgment

1. GLEESON J: Application is made by Mr Bruce Gleeson as liquidator of Vision Forklifts Pty Ltd (in liq) (the company) for an order under s 568(F)(1) of the Corporations Act 2001 (Cth) that an amount of $6,635.44, being the surplus funds available from the sale of certain disclaimed property vest in the applicant-liquidator.

2. The circumstances giving rise to the application can be stated briefly. On 19 March 2018, the company was wound up by order of the Court and Mr Gleeson was appointed liquidator. One of the assets of the company included a 2013 Manitou MH25-4T forklift bearing serial number 923430. Enquiries by the liquidator indicated that the company had purchased the forklift using finance provided by Metro Finance Pty Ltd (Metro Finance) which held a registered security interest on the Personal Property Securities Register, that the amount owing to Metro Finance was $19,054.17, that the forklift had some damage and could not be started, and that the estimated appraisal by the auctioneer, Pickles Auctions, was $20,000.

3. Section 568(1) provides that, subject to certain exceptions relating to disclaimer requiring the leave of the Court, a liquidator of a company may, at any time, on the company’s behalf, by signed writing disclaim property of the company that consists of, relevantly, property where it is reasonable to expect that the costs, charges and expenses that would be incurred in realising the property would exceed the proceeds of realising the property: s 568(1)(e).

4. The purpose of providing for disclaimer by a liquidator in a winding up is to enable the liquidator to rid the company of burdensome financial obligations that might otherwise continue to the detriment of those interested in the winding up of the affairs of the company. The power to disclaim is given to enable the liquidator to advance the prompt, orderly and beneficial administration of the winding up of the affairs of the company: Re Middle Harbour Investments Ltd (in liq) and the Companies Act (1977) 2 NSWLR 652 at 657.

5. On 8 May 2018, the liquidator, on behalf of the company, disclaimed property of the company under s 568(1)(e) of the Corporations Act by giving written notice of disclaimer of the forklift to Metro Finance under s 568A(1)(b) of the Corporations Act.

6. As a consequence of the disclaimer, the company’s rights, interests, liabilities and property in or in respect of the forklift, were terminated.

7. On 26 August 2018, the liquidator’s office was informed by Metro Finance that the forklift had been sold and there were surplus funds of $6,635.44 available from the sale. That amount has since been paid by Metro Finance to the liquidator. The liquidator estimates that creditor claims in the liquidation are in the order of $1.4 million.

8. Section 568F(1) of the Corporations Act provides that the Court may order that disclaimed property vest in, or be delivered to (a) a person entitled to the property, or (b) a person in or to whom it seems to the Court appropriate that the property be vested or delivered, or (c) a person as trustee for a person of a kind referred to in pars (a) or (b).

9. The Court may make an order under s 568F(1) on the application, among others, of a person who claims an interest in the property: s 568F(2). The liquidator, on behalf of the company, answers that description.

10. There being a surplus arising upon the exercise of the security holder’s power of sale in respect of the forklift, the person in whom it is appropriate that the surplus from the disclaimed property be vested, is the liquidator of the company which was the owner of the property up until the time the disclaimer took effect.

11. For these reasons, the Court made the following order on 16 March 2020:

1. Pursuant to s 568F(1) of the Corporations Act 2001 (Cth), the amount of $6,635.44 being the surplus funds available from the sale of disclaimed property, being a 2013 Manitou MH25-4T bearing serial number 923430, vest in the applicant, Bruce Gleeson in his capacity as liquidator of Vision Forklifts Pty Ltd ACN 154 064 267.

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Decision last updated: 17 March 2020