Omar v Shaw as Liquidator of S Omar Perdana Pty Ltd
[2025] WASC 143
•29 APRIL 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: OMAR -v- SHAW AS LIQUIDATOR OF S OMAR PERDANA PTY LTD [2025] WASC 143
CORAM: MASTER RUSSELL
HEARD: 25 JULY 2024 & ON THE PAPERS FOLLOWING FILING OF FURTHER AFFIDAVITS ON 31 JULY 2024 & 31 MARCH 2025
DELIVERED : 29 APRIL 2025
FILE NO/S: COR 184 of 2022
MATTER: IN THE MATTER OF S OMAR PERDANA PTY LTD (IN LIQUIDATION) (ACN 102 539 006)
BETWEEN: ABDUL SULAIMAN OMAR
Plaintiff
AND
CAMERON HUGH SHAW AS LIQUIDATOR OF S OMAR PERDANA PTY LTD
First Defendant
AND
S OMAR PERDANA PTY LTD (IN LIQUIDATION)
Second Defendant
Catchwords:
Corporations - Winding up - Application to terminate winding up of company - Turns on own facts
Corporations - External administration - Application for approval of liquidator's remuneration - Remuneration approved - Turns on own facts
Legislation:
Corporations Act 2001 (Cth), s 482(1), s 482(1A)(a), Sch 2 (Insolvency Practice Schedule (Corporations)), s 60-5, s 60-10, s 60-10(1)(c)
Supreme Court (Corporations) (WA) Rules 2004 (WA), r 2.8
Result:
Application granted
Order made terminating winding up
Liquidator's remuneration approved
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr D K C Wee |
| First Defendant | : | Mr D E Molony |
| Second Defendant | : | Mr D E Molony |
Solicitors:
| Plaintiff | : | Chan Galic Barristers & Solicitors |
| First Defendant | : | Armeli & Molony Lawyers |
| Second Defendant | : | Armeli & Molony Lawyers |
Case(s) referred to in decision(s):
Re Australian Stockbroking and Advisory Services Pty Ltd (In Liquidation); Ex parte Jones as liquidator of Australian Stockbroking and Advisory Services Pty Ltd (In Liquidation) [2024] WASC 193
Re Thoroughbred Consultants Pty Ltd [2021] VSC 627
MASTER RUSSELL:
Introduction
The second defendant, S Omar Perdana Pty Ltd (In Liquidation) (ACN 102 539 006) (Company) was wound up on 30 October 2018.
The first defendant, Cameron Hugh Shaw (Liquidator), was appointed as liquidator of the Company, together with Carl Alan Louis Huxtable on 18 October 2018. Mr Huxtable retired as liquidator of the Company on 23 September 2020, with the first defendant continuing as sole liquidator.
The plaintiff, Abdul Sulaiman Omar, is the Company's sole director and shareholder. He applies, as a contributory of the Company, for an order terminating the winding up of the Company pursuant to s 482(1) of the Corporations Act 2001 (Cth) (Act) upon payment of funds to discharge the Liquidator's further remuneration and any liabilities of the Company. Approval of the Liquidator's further remuneration is also sought pursuant to s 60‑10(1)(c) of the Insolvency Practice Schedule (Corporations) (IPS) in sch 2 to the Act.
The application is not opposed. The Liquidator has given evidence by affidavit in support of the application to terminate the winding up, subject to the court's approval of his remuneration and such being paid to him by the plaintiff.
There have been some delays in progressing the application on the part of the plaintiff, which I am satisfied have been adequately explained. When last before the court, the application was adjourned to be determined on the papers following the plaintiff filing further affidavit evidence verifying service of the supporting affidavits on the Australian Securities and Investments Commission (ASIC), as required by r 2.8 of the Supreme Court (Corporations) (WA) Rules 2004 (Rules) and further information being provided by the Liquidator.
ASIC has been given notice of the application and has been served with the originating process and the supporting affidavits. It has not sought to be heard on the application.
I have determined the application on the papers and, for the reasons that follow, I am satisfied it is appropriate to make orders substantially in the terms sought. Orders will be made approving and fixing the Liquidator's further remuneration in the amount of $29,700 (inclusive of GST) and that the winding up of the Company be terminated five business days after payment of the amount of $10,000, being the amount required to discharge the Company's liabilities.
The application to terminate the winding up of the Company
Relevant factual background
The following factual background and the context in which the application is made is derived from the affidavits filed in support of the application.
The Company's major asset is a property located at Unit 77, 20 Royal Street, East Perth, Western Australia, more particularly described as Lot 77 on Strata Plan 40793 and being the whole of the land in Certificate of Title Volume 2519 Folio 688 (Property).
The Company's main business activity before it was wound up was renting out the Property for commercial use and maintaining the Property for that purpose.
The Property was managed by a property manager on behalf of the Company. Issues arose in relation to collection of rent, and there were disputes between the Company and successive strata managers in relation to various matters concerning the Property and certain strata fees levied. The Company was wound up on 30 October 2018 following non‑payment of strata fees for the Property.
The plaintiff was born in Malaysia and is an Australian resident. In the period leading up to and at the time the Company was wound up, the plaintiff was not in Perth. He deposes that he did not receive legal notices relating to the Property and the Company. He had spent extended periods of time in Malaysia for personal and family reasons. This included providing support to family members, including his wife, who was suffering from significant medical issues for which she received treatment in Malaysia. She subsequently passed away.
The plaintiff seeks the termination of the Company's winding up so that the Property may once again be leased to receive rental income and to be held by the Company, if the winding up is terminated, as corporate trustee for the A S Omar Family Trust.
The plaintiff deposes that his adult daughters, Nissha Mellwani and Suraidah Sulaiman, who permanently reside in Perth, will also become shareholders of the Company and be appointed as directors of it. They will manage the Property, monitor and ensure payment of all future debts.
The Liquidator deposes that he is satisfied the liquidation of the Company may be terminated on the basis that the circumstances which resulted in the Company being wound up are no longer present, the Company is solvent and will, in his opinion, be able to pay its debts as and when they fall due.
In his further affidavit sworn and filed on 31 March 2025, the Liquidator deposes that, as at that date, the Company has no creditors, and he remains satisfied that the Company is solvent. The plaintiff has arranged payment of invoices issued in relation to rates and utilities, strata fees, insurance and legal fees and to make payment to satisfy the shortfall between the amount held to the credit of the Company and further liabilities, including in relation to the Liquidator's remuneration, if approved. The amount to be paid in that regard is $10,000.
Relevant legal principles
The principles applicable to the court's power and the exercise of its discretion to make an order terminating the winding up of a company under s 482 of the Act are well established. It is not necessary that I repeat them. They have been applied in numerous decisions of this and other courts and are summarised in my decision in Re Australian Stockbroking and Advisory Services Pty Ltd (In Liquidation); Ex parte Jones as liquidator of Australian Stockbroking and Advisory Services Pty Ltd (In Liquidation).[1]
[1] Re Australian Stockbroking and Advisory Services Pty Ltd (In Liquidation); Ex parte Jones as liquidator of Australian Stockbroking and Advisory Services Pty Ltd (In Liquidation) [2024] WASC 193 (Re Australian Stockbroking and Advisory Services) [24] ‑ [28].
I have applied those principles in my determination of this application and in the exercise of my discretion.
Determination
I am satisfied that the plaintiff has standing to bring the application as a contributory,[2] being the sole shareholder of the 100 fully paid ordinary shares in the Company.
[2] Pursuant to s 482(1A)(a) of the Act.
The creditors of the Company at the time of its winding up have been paid in full together with statutory interest. The Liquidator has confirmed that the plaintiff will pay the shortfall between the funds held to the credit of the Company and any outstanding liabilities of the Company, including the Liquidator's further remuneration, if approved.
Prior to being wound up, the Company was not involved in business or commercial activities, other than renting out and maintaining the Property. The plaintiff deposes that, if the winding up is terminated, the Company intends to rent out the Property and use the rental income to pay any future creditors, identified as including the current strata company for the Property, the City of Perth and utility operators.
I have taken into account the evidence of the first defendant, an experienced liquidator. The Liquidator is satisfied that the circumstances which led to the winding up of the Company are no longer present, the Company is solvent and will be able to meet any debts as and when they fall due. Subject to payment of funds to meet the shortfall required to discharge his further renumeration and any other liabilities of the Company, the Liquidator does not oppose the Application.
I am satisfied that the plaintiff has explained the reasons for the delay in bringing and progressing the Application and has demonstrated that there is a valid reason for the exercise of the court's discretion to terminate the winding up of the Company.
I have considered the interests of any creditors of the Company, the plaintiff (as sole shareholder of the Company), the Liquidator, and the public interest generally.
There is a clear public interest in the court ensuring that the termination of a winding up will not result in an insolvent company being allowed to trade,[3] which may create a significant risk to any potential future creditors. This is not such a case. I accept the evidence of the Liquidator as to the Company's financial position and that it is solvent. There is no evidence before me to indicate that making an order for the termination of the winding up of the Company would be contrary to commercial morality or the public interest.
[3] Re Thoroughbred Consultants Pty Ltd [2021] VSC 627 [86].
I am satisfied it is appropriate to exercise my discretion to order that the winding up of the Company be terminated, subject to payment being made to the first defendant of the amount required to discharge the remaining liabilities of the Company and the Liquidator's remuneration.
I turn now to the application to approve the Liquidator's further remuneration.
The application for approval of Liquidator's further remuneration
Approval is sought of the Liquidator's further remuneration and costs incurred in respect of the work undertaken in relation to the winding up of the Company for the period from 1 March 2021 to termination of the winding up limited to the amount of $29,700 (inclusive of GST), as set out in the Liquidator's affidavits filed in support of the application.[4]
[4] Affidavit of Hugh Cameron Shaw sworn on 21 June 2024 [12] ‑ [18], 'CHS-1', 'CHS-2'.
Although the plaintiff has agreed to pay the Liquidator's further remuneration and has made funds available for that purpose, in approving the remuneration the subject of the application, the court must be satisfied that it has been reasonably incurred for work that was necessary, as provided in the relevant provisions of the IPS.
The relevant provisions of the IPS and the principles to be applied in considering an application for approval of the remuneration incurred by insolvency practitioners are set out in my reasons for decision in Re Australian Stockbroking and Advisory Services.[5] They are well established and it is not necessary that I repeat them. I have applied those principles in determining the application.
[5] Re Australian Stockbroking and Advisory Services [43] - [48].
In this case, approval is required and sought under s 60‑10(1)(c) of the IPS, there being no creditors of the Company to approve the further remuneration by resolution, and no committee of inspection.
The onus is on the insolvency practitioner to establish the remuneration claimed is reasonable, and for work that was (or is) reasonably necessary and properly performed. The court is not required to undertake a line‑by‑line review but must consider whether, on the materials provided and bringing an independent mind to bear, there is a prima facie case on the evidence that the remuneration is fair and reasonable.
Determination
The Liquidator has deposed to the further work undertaken by him and the staff who have assisted him in relation to the winding up of the Company in the period 1 March 2021 to 26 March 2024. He has provided a schedule of who did the work, the total time spent by each of them and the hourly rates applied. He has also produced a spreadsheet summarising the calculation of the remuneration and an extract of the relevant time recording sheets.
I have reviewed the schedules and information provided in relation to the tasks undertaken, the personnel undertaking the work and the hourly rates applied. The Liquidator has incurred further fees in the time that has lapsed since 26 March 2024, but has limited his claim for further remuneration to the amount claimed of $29,700 including GST.
I am satisfied that, in the circumstances, the work undertaken, the time involved, rates applied and the remuneration sought to be approved in the amount of $29,700 (inclusive of GST) is prima facie fair and reasonable, and ought to be allowed.
Conclusion and orders
For these reasons, I am satisfied it is appropriate to make an order terminating the winding up of the Company, to take effect following payment being made by the plaintiff of the amount required to discharge the Company's liabilities. Taking account of the monies held to the Company's credit, as set out in the Liquidator’s affidavit sworn and filed on 31 March 2025, the amount to be paid is $10,000.
No order is sought in relation to the costs of the Application, which have been met by the plaintiff.
I will make orders in the following terms.
1.Upon payment by the plaintiff of the amount of $10,000 to discharge the second defendant's liabilities within 5 (five) business days of the date of these orders, pursuant to s 482(1) of the Corporations Act 2001 (Cth) (Act), the winding up of S Omar Perdana Pty Ltd (In Liquidation) (ACN 102 539 006) (Company) be terminated.
2.Pursuant to section 60-5 and section 60-10(1)(c) of the Insolvency Practice Schedule (Corporations) being Schedule 2 to the Act, the first defendant's further remuneration and costs incurred in respect of the work undertaken in relation to the winding up of the Company for the period from 1 March 2021 to its termination in accordance with order 1 is determined, approved and fixed in the amount of $29,700 (inclusive of GST).
3.Pursuant to section 482(5) of the Act, the Company is to lodge a copy of these orders with the Australian Securities and Investment Commission within 14 days.
4.There be liberty to apply.
5.No order as to the costs of the Application.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MM
Acting Associate to Master Russell
29 APRIL 2025
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