Lombe as liquidator of Ulicorp Pty Ltd

The case involved the liquidator of Ulicorp Pty Ltd, trading as Ulicorp, who sought directions from the court regarding the distribution of the surplus funds of the company following its winding up. The liquidator, Lombe, was appointed to wind up Ulicorp by the court and had fulfilled the obligations to pay all debts in full. The dispute arose over the distribution of the remaining surplus, as the liquidator and the company's members could not agree on the basis for distribution. The members had reached a unanimous agreement to adopt an alternative basis for distribution, and the liquidator sought clarification on whether this unanimous agreement could be followed.

The primary legal issue before the court was whether the liquidator of a company could proceed with the distribution of surplus funds in accordance with a unanimous agreement of the members, when such an agreement diverged from the statutory default provisions. The court needed to determine the extent to which the members' unanimous agreement could override the statutory default provisions for the distribution of surplus funds in a winding up.

In resolving the matter, the court considered the statutory framework governing the winding up of companies and the distribution of surplus funds. The court noted that while the statutory provisions provided a default basis for distribution, the members of a company had the power to agree on an alternative basis for distribution, provided that such agreement was unanimous. The court held that when members had reached a unanimous agreement to adopt an alternative basis for distribution, the liquidator was entitled to proceed in accordance with that agreement. The court emphasised the importance of respecting the unanimous agreement of the members, as it reflected their collective will and facilitated an efficient and consensual process for the winding up of the company.

The court made an order that the liquidator could proceed with the distribution of the surplus funds in accordance with the unanimous agreement of the members. This decision reinforced the principle that the members of a company have the capacity to agree on the distribution of surplus funds in a winding up, provided that the agreement is unanimous, and it highlighted the importance of respecting the collective decision-making process of the members.