Jonas v Borumba Pty Ltd

FEDERAL COURT OF AUSTRALIA

Jonas v Borumba Pty Ltd [2005] FCA 1240

CORPORATIONS — application to set aside the appointment of provisional liquidators — whether appropriate to appoint provisional liquidators prior to final hearing — where fraudulent transaction likely to involve defendant companies

Allstate Explorations NL v Batepro Australia Pty Ltd (2004) NSWSC 261 - applied

WAYNE STUART JONAS AND ROSALIND WILSON JONAS (AS TRUSTEES OF THE JONAS SUPERANNUATION FUND) V BORUMBA PTY LTD (ACN 060 889 205), ALAM ENTERPRISES PTY LTD (ACN 088 229 207) AND SKYTEL PTY LTD (ACN 070 536 408)
VID 836 OF 2005

MERKEL J
23 AUGUST 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 836 OF 2005

BETWEEN:

WAYNE STUART JONAS (AS TRUSTEE OF THE JONAS SUPERANNUATION FUND)
FIRST PLAINTIFF

ROSALIND WILSON JONAS (AS TRUSTEE OF THE JONAS SUPERANNUATION FUND)
SECOND PLAINTIFF

AND:

BORUMBA PTY LTD (ACN 060 889 205)
FIRST DEFENDANT

ALAM ENTERPRISES PTY LTD (ACN 088 229 207)
SECOND DEFENDANT

SKYTEL PTY LTD (ACN 070 536 408)
THIRD DEFENDANT

JUDGE:

MERKEL J

DATE OF ORDER:

23 AUGUST 2005

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The application dated 12 August 2005 be dismissed.

2.The costs of the plaintiffs and of the provisional liquidators of and incidental to that application be costs in the cause.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 836 OF 2005

BETWEEN:

WAYNE STUART JONAS (AS TRUSTEE OF THE JONAS SUPERANNUATION FUND)
FIRST PLAINTIFF

ROSALIND WILSON JONAS (AS TRUSTEE OF THE JONAS SUPERANNUATION FUND)
SECOND PLAINTIFF

AND:

BORUMBA PTY LTD (ACN 060 889 205)
FIRST DEFENDANT

ALAM ENTERPRISES PTY LTD (ACN 088 229 207)
SECOND DEFENDANT

SKYTEL PTY LTD (ACN 070 536 408)
THIRD DEFENDANT

JUDGE:

MERKEL J

DATE:

23 AUGUST 2005

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

1. The plaintiffs commenced a proceeding in the Court seeking an order that the defendants, who I will refer to as Borumba, Alam Enterprises, and Skytel, be wound up on the just and equitable ground (s 461(1)(k) of the Corporations Act 2001 (Cth)). The plaintiffs then applied, having given notice to the defendants, for the appointment of a provisional liquidator. The defendants did not appear on the return date of the application and the District Registrar, after receiving the usual undertaking as to damages from counsel on behalf of the plaintiffs, appointed Messrs Dwyer and Hancock as provisional liquidators of each of the defendants.

2. The defendants and their director, Michael Alam — who I will refer to as Alam — have applied to the Court to set aside the orders of the District Registrar. The issue on the application is whether the plaintiffs have made out a sufficient case before the Court today, to maintain the appointment of the provisional liquidators that was made by the District Registrar. It is common ground that, although the appointment is discretionary, the plaintiffs should satisfy the Court that (a) it is reasonably…