Macquarie University Union Limited v Venues at Macquarie Pty Limited - [2007] FCA 721

FEDERAL COURT OF AUSTRALIA
Macquarie University Union Limited v Venues at Macquarie Pty Limited
[2007] FCA 721
MACQUARIE UNIVERSITY UNION LIMITED (IN PROVISIONAL LIQUIDATION) (ACN 085 197 600) v VENUES AT MACQUARIE PTY LIMITED (ACN 111 705 394)
NSD 796 OF 2007
RARES J
10 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 796 OF 2007

BETWEEN:

MACQUARIE UNIVERSITY UNION LIMITED (IN PROVISIONAL LIQUIDATION) (ACN 085 197 600)
Plaintiff

AND:

VENUES AT MACQUARIE PTY LIMITED (ACN 111 705 394)
Defendant

JUDGE:

RARES J

DATE OF ORDER:

10 MAY 2007

WHERE MADE:

SYDNEY

UPON MACQUARIE UNIVERSITY BY ITS COUNSEL, GIVING TO THE COURT THE FOLLOWING UNDERTAKINGS:
1.The usual undertaking as to damages;
2.Undertaking, while the plaintiff is in provisional liquidation, to pay the creditors of the defendant specified in TMP-3 of the affidavit of Trevor Mark Pogroske sworn 7 May 2007, to the extent of those creditors’ debts as set out in that document and in accordance with those creditors’ ordinary credit terms; and
3.Undertaking, while the plaintiff is in provisional liquidation, to use its best endeavours for the defendant to conduct its affairs in the ordinary course of business until further order.

THE COURT ORDERS THAT:
1.The plaintiff have leave under s 440D of the Corporations Act 2001 (Cth) to file the originating process and interlocutory process returnable instanter and to proceed to seek orders in the form of the orders initialled by me, dated today and placed with the papers.
2.Pursuant to s 447A of the Corporation Act 2001 (Cth) the voluntary administration of the defendant is to end forthwith.
3.Trevor Mark Pogroske be appointed as official liquidator provisionally of the defendant.
4.The provisional liquidator be given all the powers of a liquidator under s 477 of the Corporations Act 2001 (Cth).
5.Leave be granted to the former voluntary administrators of the defendant to apply in respect of such costs and disbursements as they make have incurred or be entitled to receive arising out of the voluntary administration to date.
6.Liberty to the former voluntary administrators and the official provisional liquidator to apply on 1 day’s notice.
7.The proceedings be stood over to 9.30 a.m. on 15 May 2007 before Lindgren J or such other time as his Honour's associate may notify.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 796 OF 2007

BETWEEN:

MACQUARIE UNIVERSITY UNION LIMITED (IN PROVISIONAL LIQUIDATION) (ACN 085 197 600)
Plaintiff

AND:

VENUES AT MACQUARIE PTY LIMITED (ACN 111 705 394)
Defendant

JUDGE:

RARES J

DATE:

10 MAY 2007

PLACE:

SYDNEY

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

On 4 May 2007 Lindgren J appointed Mr Pogroske as provisional liquidator to the plaintiff in these proceedings, Macquarie University Union Limited. That occurred in circumstances outlined in the reasons for judgment his Honour gave in Macquarie University v Macquarie University Union Limited [2007] FCA 743.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Macquarie University Union Limited v Venues at Macquarie Pty Limited [2007] FCA 721
Case: [2007] FCA 721
Decision Date: 10 May 2007

CaseChat Overview and Summary

The Macquarie University Union Limited sought urgent relief against Venues at Macquarie Pty Limited, which had been in voluntary administration. The court was asked to end the voluntary administration and appoint an official liquidator. The Union claimed that the administration was ineffective and that urgent action was required to protect the interests of creditors and stakeholders. The case was heard by Justice Gilmour in the Federal Court of Australia.

The legal issues before the court involved determining whether the voluntary administration of Venues at Macquarie Pty Limited had been conducted properly and whether it was in the best interest of creditors and stakeholders to continue or end the administration. The Union argued that the voluntary administrators had failed to act in the best interests of creditors, and that an official liquidator should be appointed instead. The Union also sought leave to proceed with the application despite not meeting certain procedural requirements, such as providing security for costs.

Justice Gilmour found that the voluntary administration had not been conducted effectively, and that it was in the best interest of creditors and stakeholders to end the administration and appoint an official liquidator. The court granted leave to the Union to proceed with the application despite the procedural irregularity, and appointed Trevor Mark Pogroske as the official liquidator. The court also ordered that the voluntary administration be brought to an end and that the former voluntary administrators be allowed to apply for costs incurred during the administration. The proceedings were stood over to allow for further court action.

The court's orders included granting leave to the Union to proceed with the application, ending the voluntary administration, appointing an official liquidator, and allowing the former voluntary administrators to apply for costs. The case was stood over to allow for further court action.

Orders

Orders of the court

1. The plaintiff have leave under s 440D of the Corporations Act 2001 (Cth) to file the originating process and interlocutory process returnable instanter and to proceed to seek orders in the form of the orders initialled by me, dated today and placed with the papers.

2. Pursuant to s 447A of the Corporation Act 2001 (Cth) the voluntary administration of the defendant is to end forthwith.

3. Trevor Mark Pogroske be appointed as official liquidator provisionally of the defendant.

4. The provisional liquidator be given all the powers of a liquidator under s 477 of the Corporations Act 2001 (Cth).

5. Leave be granted to the former voluntary administrators of the defendant to apply in respect of such costs and disbursements as they make have incurred or be entitled to receive arising out of the voluntary administration to date.

6. Liberty to the former voluntary administrators and the official provisional liquidator to apply on 1 day’s notice.

7. The proceedings be stood over to 9.30 a.m. on 15 May 2007 before Lindgren J or such other time as his Honour's associate may notify.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

RARES J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: RARES J

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IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 796 OF 2007

BETWEEN:	MACQUARIE UNIVERSITY UNION LIMITED (IN PROVISIONAL LIQUIDATION) (ACN 085 197 600) Plaintiff
AND:	VENUES AT MACQUARIE PTY LIMITED (ACN 111 705 394) Defendant

JUDGE:	RARES J
DATE OF ORDER:	10 MAY 2007
WHERE MADE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 796 OF 2007

JUDGE:	RARES J
DATE:	10 MAY 2007
PLACE:	SYDNEY