Pace, C. v Antlers P/L

[1994] FCA 485

48s 99

JUDGMENT Na , .& .......r_..

CATCHWORDS

CORPORATIONS - winding up - release of liquidator.

S&	-	'	1961 (NSW) ss 239(c), 240(4)
R	v	Ptv Ltd (1982) 1 ACLC 312	. .

d v De~utv of Taxation (1993) 118 ALR 577

CHARLIE PACE and ANOR v ANTLERS PTY LIMITED (RECEIVER and

MANAGER appointed) (In Liquidation) ACN 000 900 989

No. NG 131 of 1994

Coram:	Whitlam J
Place:	Sydney
Date:	22 June 1994

Limited Distribution

gv l=DFBBL COURT OF *U=-uku )

B W	SOUTH W-	DISWCT REmTRY	1	NG 131 of 1994
1

- 1

PACE and Anor

Applicants

A N T L E R S PTY L I M I T E D

-

Respondent

C o r n :	Whitlam J
Place:	Sydney
Date:	22 June 1994

On 1 June 1994 I made orders relatlng to the resignation and release of Peter Bernard M e n as liquidator of Antlers Pty Limited ("the company"). These are my

reasons for those orders.

The company was wound up by an order of the Supreme Court of New South

Wales made under the provisions of the m a n i e s Act, 1%1 (NSW) ("the Act"). Mr

m e n was appointed liquidator by the Supreme Court on 14 July 1986. Subsequently, on

23 November 1987 the Supreme Court ordered that the winding up of the company be terminated on 1 December 1987 and directed that a meeting of the members of the company be held on 30 November 1987 "to elect duectors to take office upon the termination of the winding up!' Such a meeting was not held. A Full Court of this Court decided that the direction to hold the meeting should be seen as a part of and, in that

sense, a condition of, the coming into operation of the termination order. Accordingly,

the winding up of the company had not been terminated: v. Deuuty

. .

(1993) l18 ALR 577. In the meantime, on 2 July 1993 in

another proceeding in this Court, I had appointed James Momson Millar as receiver and

manager of the company.

On 17 May 1994 Mr Allen filed a notice of motion in the Supreme Court, which

on the same day transferred the proceeding to this Court pursuant to the provisions of

. . .

the Junsdlctlon of C - o -v 1987 (NSW). On his notice of motion Mr

Allen sought orders that Mr Millar be appointed liquidator of the company, that upon his resignation as liquidator he be released pursuant to s 239(c) of the Act and that the

provisions of the -,1968 (NSW) relating to his resignation and release

be dispensed with.

Upon the hearing of the motion before me Mr AUen and Mr Millar appeared by

counsel, as did the Deputy Commissioner of Taxation claiming as a credtor and the Official Trustee in Bankruptcy and Mr George Kavich claiming as a contributories. A

solicitor appeared for Mrs Vera Kavich and Mr Frank Portelli, each claiming as contributories. The relief sought in relation to the appointment of Mr Millar and the resignation of Mr Allen was not opposed by any person appearing. Mr George Kavich opposed the making of the order sought under s 239(c) of the Act.

The basis of the opposition was unusual. Mr Kavich had filed no evidence to

support any ground of objection to the release of Mr Allen.	However, it was submtted
that, as Mr	Kavich had a pending application before this Court for an order under S 482

of the staymg or terminating the company's wind~ng up, Mr M e n ought not to be released, but that the Court ought to direct that a liquidator's report be

furnished under S 482(2) of the 1 aw.

I was quite unable to see the logic of Mr Kavich's position. Section 482(2) of the

W - is concerned with whether the Court should requlre a liquidator's

report before making an order staying or terminating the winding up.	Here, Mr M e n
was not seeking to bring the winding up to an end.	On the contrary, what he was
seeking to do was to have the wind~ng	up continue, but with Mr Millar as liquidator.

It was not suggested that any possible creditor or contributory of the company did not have notice of Mr Allen's application. Mr Allen had had no actual involvement with the affairs of the company since the order of the Supreme Court on 23 November 1987.

The liquidator's accounts filed by Mr Allen prior to that date indicate that there had
been no receipts or payments m the wnding up.	Accordmngly, I could see no reason why

Mr Allen ought not be authorized to depart from the provisions of rule 206 of the

1968 (NSW).

Counsel for Mr AIlen drew my attention to S 240(4) of the Act dealing with the effect of an order for release. Counsel for Mr Kavich described the makmg of such an order as "indulgence" and submitted that Mr M e n had advanced no "special factors" why such an indulgence should be granted.

It may be accepted that an order of release is a senous matter. However, it seemed to me entirely appropriate in the circumstances that such an order should be made in Mr Allen's favour. As I have said, it was not suggested that he had had any involvement with the company after 1987, when he thought its winding up had

terminated. It has not been alleged by anyone that he has done any act or made any default contrary to his duty. No one has suggested his liquidator's accounts be audited.

A liquidator is not entitled to an order of release as a matter of course upon his

resignation. However, I do not think that he must show any "special factors" before such an order will be made. It must simply be appropriate in the circumstances of the case.

As the Full Court decision shows, this is a very unusual case. The default in
observing the condition of the Supreme Court's termmation order (which had been

irregularly obtained) was not that of Mr Allen, but of Mrs Kavich. Importantly, this was

not a case which was "the last opportunity for the Court to ensure that the interests of
all concerned have, as far as possible, been safeguarded!'	CL & Budoet Floor Cove-

- (1982) 1 ACLC 312 at 314. No order was sought under s 239(d) of the Act that

the company be dissolved. The winding up of the company continues wth Mr Millar as liquidator. Accordingly, I was quite satisfied that the interests of all persons interested

in the company were protected and that the order of release should be made.

I ceniry that this and the preceding four pages are a

true copy of the Reasons for Judgment herein of the

Honourable Mr Justice AP. W~I#III.

Assoaate:

Date: 22 June 1994

Mieb.el Cashion (instructed by Kemp Strang & Chippindall) for Mr P.B. Allen

J.T. Johnaon (instructed by Sally Nosh & Co) for Mr J.M. Millar

M.R Aldridge (in~tN(Xed by Australian Government !Solicitor) for OfBdal Trustee in Bankruptcy

and Deputy Commissioner of Taxauon

R.W. Camemn (insuucted by V Krikunov) for Mr George Kavich

Mr S.P. GInscott (of Crichton-Brownes) for Mm Vera Kanch and MI Frank Portelli