Parbery, in the matter of NewSat Limited (in liq)
[2020] FCA 1317
•10 September 2020
FEDERAL COURT OF AUSTRALIA
Parbery, in the matter of NewSat Limited (in liq) [2020] FCA 1317
File number(s): VID 581 of 2020 Judgment of: ANDERSON J Date of judgment: 10 September 2020 Date of publication of reasons: 14 September 2020 Catchwords: INSOLVENCY – application to replace liquidator – where current liquidator intends to resign as liquidator – where proposed replacement has assisted current liquidator in relation to the liquidation of the subject companies – appropriate to appoint proposed replacement liquidator in circumstances presented – application granted Legislation: Corporations Act 2001 (Cth), ss 499(3), 556(1)(a), 556(1)(dd) and 556(2)
Corporations Act 2001 (Cth), Schedule 2—Insolvency Practice Schedule (Corporations), ss 90-15(1), 90-20(1)(d)
Federal Court (Corporations) Rules 2000 (Cth), r 7.2
Cases cited: Ansett Australia Ground Staff Superannuation Plan Pty Ltd v Ansett Australia Ltd [2002] VSC 576 Division: General Division Registry: Victoria National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Number of paragraphs: 15 Date of hearing: 10 September 2020 Counsel for the Plaintiff: Jesse J Rudd Solicitor for the Plaintiff: Arnold Bloch Leibler ORDERS
VID 581 of 2020 IN THE MATTER OF NEWSAT LIMITED (IN LIQUIDATION) (ACN 003 237 303) & ORS
STEPHEN PARBERY IN HIS CAPACITY AS LIQUIDATOR OF NEWSAT LIMITED (IN LIQUIDATION) (ACN 003 237 303), NSN HOLDINGS PTY LTD (IN LIQUIDATION) (ACN 105 253 263), NEWSAT SERVICES PTY LTD (IN LIQUIDATION) (ACN 076 118 708), JABIRU SATELLITE HOLDINGS PTY LTD (IN LIQUIDATION) (ACN 162 147 800), NEWSAT SPACE RESOURCES PTY LTD (IN LIQUIDATION) (ACN 164 219 943), NEWSAT NETWORKS PTY LTD (IN LIQUIDATION) (ACN 078 204 994), JABIRU SATELLITE LIMITED (IN LIQUIDATION) (ACN 121 667 365)
Plaintiff
ORDER MADE BY:
ANDERSON J
DATE OF ORDER:
10 SEPTEMBER 2020
THE COURT ORDERS THAT:
1.Pursuant to s 499(3) of the Corporations Act 2001 (Cth) (the Act) and s 90-15(1) of the Insolvency Practice Schedule (Corporations) (Schedule 2 to the Act), Glenn Ian Livingstone of KPMG be appointed as liquidator to each of:
(a)NewSat Limited (in liquidation) (ACN 003 237 303);
(b)NSN Holdings Pty Ltd (in liquidation) (ACN 105 253 263);
(c)NewSat Services Pty Ltd (in liquidation) (ACN 076 118 708);
(d)Jabiru Satellite Holdings Pty Ltd (in liquidation) (ACN 162 147 800);
(e)NewSat Space Resources Pty Ltd (in liquidation) (ACN 164 219 943);
(f)NewSat Networks Pty Ltd (in liquidation) (ACN 078 204 994); and
(g)Jabiru Satellite Limited (in liquidation) (ACN 121 667 365),
(the Companies).
2.The costs and expenses of the plaintiff’s application by originating process filed 28 August 2020 be costs and expenses in the winding up of the Companies.
3.Liberty to apply on at least two days’ written notice to the liquidator of the Companies be granted to any person, including any creditor of the Companies or the Australian Securities and Investments Commission, who can demonstrate a sufficient interest to modify or discharge these orders.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ANDERSON J:
These reasons for judgment were delivered ex tempore at the hearing on 10 September 2020 and accompany the orders set out above.
By originating process filed on 28 August 2020, the plaintiff seeks orders that Glenn Ian Livingstone of KPMG be appointed as liquidator to each of the companies the subject of this application (the Companies); that the costs of the application be costs in the winding up of the Companies; and that there be liberty to apply to any interested party.
The application is supported by affidavits of the plaintiff, Mr Parbery, and Mr Livingstone, dated 27 August and 28 August 2020 respectively (the Parbery Affidavit and Livingstone Affidavit respectively).
The Parbery Affidavit and Livingstone Affidavit disclose the following matters.
Mr Parbery and Marcus William Ayres were appointed joint and several administrators of the Companies on 17 April 2015. On 7 August 2015, at a meeting of the creditors of the Companies, it was resolved that the Companies be wound up and Messrs Parbery and Ayres were appointed liquidators for that purpose. Mr Ayres resigned as liquidator of the Companies on or around 6 March 2017, leaving Mr Parbery as the sole liquidator of the Companies.
As of 15 May 2020, Mr Parbery ceased employment as a Special Advisor with KPMG. It is Mr Parbery’s intention to resign as liquidator of the Companies, and he brings this application for the appointment of a replacement liquidator accordingly.
Mr Parbery’s proposed replacement, Mr Livingstone, is and has been a registered liquidator since December 2016. He is a partner of KPMG. He has worked on insolvency and restructuring matters with Mr Parbery since 2008. Mr Livingstone has over 18 years of experience in insolvency and restructuring, both as liquidator or administrator and as a person assisting liquidators or administrators.
In particular, Mr Livingstone has worked with Mr Parbery in relation to the liquidation of the subject Companies since about July 2018, including assisting in relation to creditor enquiries, liaising with the receivers of the Companies, lodging statutory returns with the Australian Securities and Investments Commission (ASIC) and considering potential avenues of recovery for the benefit of creditors. As a partner of KPMG, Mr Livingstone also has responsibility for the day to day supervision and management of the various KPMG staff who work on the liquidation of the Companies under Mr Parbery’s supervision.
Mr Parbery considers Mr Livingstone to be both well qualified and well placed to act as liquidator of the Companies following Mr Parbery’s resignation. For his part, Mr Livingstone considers he has the appropriate experience and familiarity with the liquidation of the Companies to properly discharge the duties of registered liquidator should he be appointed. Mr Livingstone has also filed the necessary consent to act in accordance with Form 8 of the Federal Court (Corporations) Rules 2000 (Cth) (Corporations Rules).
Section 499(3) of the Corporations Act 2001 (Cth) (Corporations Act) relevantly provides that, if a liquidator, other than a liquidator appointed by the Court, resigns, the Court may fill the vacancy by the appointment of a liquidator. Separately, s 90-15(1) of the Insolvency Practice Schedule (Corporations) provides that the Court may make such orders as it thinks fit in relation to the external administration of a company. An application for orders under s 90-15 may be made by a liquidator (as an officer of the company), under s 90-20(1)(d). Rule 7.2 of the Corporations Rules is the relevant procedural rule concerning vacancies in the office of liquidator arising under s 499(3) and s 90-15. It provides that, “[i]f, for any reason, there is no liquidator of a company under external administration, the Court may appoint a registered liquidator whose written consent in accordance with Form 8 has been filed”.
I will make the Orders sought by the Plaintiff for the following reasons.
Based on the material provided to the Court, I am satisfied that the Court’s power to appoint a replacement liquidator under s 499(3) of the Corporations Act is enlivened by both the resignation of Mr Ayres as liquidator on 6 March 2017, and the foreshadowed resignation of Mr Parbery, being the sole remaining liquidator, as outlined in the Parbery Affidavit. I am satisfied that those circumstances equally justify an exercise of the power under s 90-15 of the Insolvency Practice Schedule (Corporations) for the appointment of a replacement liquidator, as a necessary incident of the external administration of the Companies. I am satisfied that the appointment of Mr Livingstone as replacement liquidator is appropriate. Mr Livingstone has the necessary qualifications and experience to fulfil the role. He also has familiarity with the liquidation of the Companies. ASIC has been notified of the application and has indicated that it does not seek to intervene in the application or otherwise be heard in relation to it.
The second order that the Plaintiff seeks is that the costs of this application be costs and expenses in the winding up of the Companies. Liquidators are entitled in the winding of a company to recoup expenses properly incurred in connection with the exercise of their functions: see ss 556(1)(a), (dd) and (2) of the Corporations Act. Such expenses are those which are incurred as a necessary incident of the process of undertaking the liquidator’s functions, of which litigation expenses are a common example: see Ansett Australia Ground Staff Superannuation Plan Pty Ltd v Ansett Australia Ltd [2002] VSC 576; 174 FLR 1 at [286] (Warren J) and the authorities there cited.
I am satisfied that that the plaintiff’s application meets that characterisation and that the proposed order as to costs is warranted. The vacancies in the office of liquidator have necessitated this application so as to ensure that the subject Companies are not left without a liquidator to complete the winding up of the Companies.
I will make the Orders sought by the Plaintiff.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson. Associate:
Dated: 14 September 2020
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