Lee, in the Matter of Hyperbarics Australia Pty Ltd v Hyperbarics Australia Pty Ltd

[2011] FCA 1429

FEDERAL COURT OF AUSTRALIA

Lee, in the matter of Hyperbarics Australia Pty Ltd v Hyperbarics Australia Pty Ltd [2011] FCA 1429

Citation:		Lee, in the matter of Hyperbarics Australia Pty Ltd v Hyperbarics Australia Pty Ltd [2011] FCA 1429
Parties:		JACQUELINE AMELIA LEE v HYPERBARICS AUSTRALIA PTY LTD ACN 111 872 096 and PAUL LAWRENCE SHELLEY
File number(s):		NSD 2151 of 2011
Judge:		JAGOT J
Date of judgment:		9 December 2011
Catchwords:		CORPORATIONS – application for appointment of provisional liquidator
Legislation:		Corporations Act 2001 (Cth) s 472(2)
Date of hearing:	9 December 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	4
Solicitor for the Plaintiff:	Ms C Perry of Parry Carroll Lawyers
Counsel for the First Defendant:	The first defendant did not appear
Counsel for the Second Defendant:	The second defendant appeared in person

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 2151 of 2011

IN THE MATTER OF HYPERBARICS AUSTRALIA PTY LTD ACN 111 872 096

BETWEEN:

JACQUELINE AMELIA LEE
Plaintiff

AND:

HYPERBARICS AUSTRALIA PTY LTD ACN 111 872 096
First Defendant

PAUL LAWRENCE SHELLEY
Second Defendant

JUDGE:	JAGOT J
DATE OF ORDER:	9 DECEMBER 2011
WHERE MADE:	SYDNEY

THE COURT:

1.Orders that, pursuant to s 472(2) of the Corporations Act 2001 (Cth) (the Corporations Act), Roderick Sutherland of Jirsch Sutherland, Level 4, 55 Hunter St, Sydney, official liquidator, be appointed as provisional liquidator of the first defendant.

2.Orders that the said Roderick Sutherland be appointed until further order and with the following powers:

(a)the powers conferred on him in his capacity as provisional liquidator by s 472 of the Corporations Act; and

(b)the power to investigate and to require the plaintiff, the second defendant, Lawrence Shelley, Lynette Martin, officers and employees of the first defendant to provide information, books and records in relation to the business, assets, liabilities, income and expenses of the company.

3.Directs that within 30 days or such further time as the Court might allow, the said Roderick Sutherland report to the Court and to the plaintiff and second defendant on the results of his investigations.

4.Directs that the said Roderick Sutherland will be justified in retaining Mr Gordon Harrod as consultant to report on the above matters and the prospects of the business of the first defendant continuing as a going concern.

5.Grants liberty to the said Roderick Sutherland to apply on three days’ notice for directions.

6.Stands the proceeding over to the Corporations List at 9.30 a.m. on 10 February 2012.

7.Directs that these orders may be entered forthwith.

8.Orders that the costs of the interlocutory process filed on 30 November 2011 be reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 2151 of 2011

IN THE MATTER OF HYPERBARICS AUSTRALIA PTY LTD ACN 111 872 096

BETWEEN:

JACQUELINE AMELIA LEE
Plaintiff

AND:

HYPERBARICS AUSTRALIA PTY LTD ACN 111 872 096
First Defendant

PAUL LAWRENCE SHELLEY
Second Defendant

JUDGE:	JAGOT J
DATE:	9 DECEMBER 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application pursuant to s 472(2) of the Corporations Act 2001 (Cth) for the appointment of a provisional liquidator before the making of a winding-up order.

2. The evidence before me on the application is to the effect that:

   (1)an application was filed on 30 November 2011 seeking the winding-up of the defendant company on grounds of insolvency (s 459P) as well as on just and equitable grounds (s 461(1)(k));

   (2)the company has been directed to cease trading by the Department of Health and Ageing;

   (3)the management of the company, according to both the plaintiff and the second defendant (Mr Paul Shelley, who has appeared today and is also a director of the defendant company), has become dysfunctional as a result of various disputed issues regarding alleged loans to the company; and

   (4)the primary assets of the company, consisting apparently of various hyperbaric chambers, have been transported to Dubai and may well be at risk of dissipation as the company was to commence operations there before the breakdown in management.

3. Mr Shelley has indicated that, like the plaintiff, he is of the view that a provisional liquidator should be appointed to the defendant company.  Mr Shelley has no objection to the appointment of Roderick Mackay Sutherland, who is an official liquidator, in this capacity.  Mr Sutherland has given his consent to act as provisional liquidator (and also as official liquidator) of the defendant company. 

4. In these circumstances, I am satisfied I should make orders in the terms provided by the solicitor for the plaintiff.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.

Associate:

Dated:       14 December 2011