Pascoe v Ambernap Pty Ltd - [2008] FCA 1975

FEDERAL COURT OF AUSTRALIA
Pascoe v Ambernap Pty Ltd [2008] FCA 1975
CORPORATIONS – winding up application – sole member, sole director company –member bankrupt – order that company be wound up and trustee in bankruptcy be appointed as liquidator
Corporations Act 2001 (Cth) ss 461, 1072C
Nilant v RL & KW Nominees Pty Ltd [2007] WASC 105 referred to
Official Trustee in Bankruptcy v Buffier (2005) ACSR 839 followed
Prentice v Cummins [2002] FCA 1165 referred to
Rambaldi; in the matter of Weeden, a bankrupt v Weeden [2008] FCA 1597 referred to
IN THE MATTER OF AMBERNAP PTY LTD (ACN 097 909 405); SCOTT DARREN PASCOE AS TRUSTEE OF THE PROPERTY OF JON MCARTHUR, A BANKRUPT v AMBERNAP PTY LTD (ACN 097 909 405)
NSD 1894 of 2008
JACOBSON J
19 DECEMBER 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1894 of 2008

IN THE MATTER OF AMBERNAP PTY LTD (ACN 097 909 405)

BETWEEN:
SCOTT DARREN PASCOE AS TRUSTEE OF THE PROPERTY OF JON MCARTHUR, A BANKRUPT
Plaintiff

AND:
AMBERNAP PTY LTD
(ACN 097 909 405)
Defendant

JUDGE:

JACOBSON J

DATE OF ORDER:

19 DECEMBER 2008

WHERE MADE:

SYDNEY

THE COURT:
1.Declares that the plaintiff is entitled to be registered as the holder of all the issued shares in the defendant.
2.Orders that the defendant, or in default the Registrar, do all things and sign all documents necessary to cause the plaintiff to be registered as the holder of all the issued shares in the defendant.
3.Orders that the defendant be wound up under the Corporations Act 2001 (Cth).
4.Orders that Scott Darren Pascoe be appointed official liquidator of the defendant.
5.Orders that the costs to the plaintiff of this application be paid out of the assets of the defendant.

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

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1894 of 2008

IN THE MATTER OF AMBERNAP PTY LTD (ACN 097 909 405)

BETWEEN:
SCOTT DARREN PASCOE AS TRUSTEE OF THE PROPERTY OF JON MCARTHUR, A BANKRUPT
Plaintiff

AND:
AMBERNAP PTY LTD
(ACN 097 909 405)
Defendant

JUDGE:

JACOBSON J

DATE:

19 DECEMBER 2008

PLACE:

SYDNEY

REASONS FOR JUDGMENT

This is an application for an order pursuant to s 461(1)(a) of the Corporations Act 2001 (Cth) that the defendant company, Ambernap Pty Ltd, be wound up and that Mr Scott Darren Pascoe be appointed as the official liquidator of that company.
Critical to the application is the fact that Ambernap is a sole member, sole director company. The sole member and director is Mr Jon McArthur. Mr McArthur was made bankrupt by a sequestration order made in the Federal Magistrates Court on 26 March 2008. Mr Pascoe was appointed as Mr McArthur’s trustee in bankruptcy.
It appears that the sole asset of Ambernap is shares in a company called…

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.

Continue reading Pascoe v Ambernap Pty Ltd

Details

AGLC: Pascoe v Ambernap Pty Ltd [2008] FCA 1975
Case: [2008] FCA 1975
Decision Date: 19 December 2008

CaseChat Overview and Summary

Pascoe v Ambernap Pty Ltd involved a dispute over the ownership of shares in the defendant company. The plaintiff, Pascoe, sought to be registered as the holder of all issued shares in Ambernap Pty Ltd, claiming that he was the rightful owner. The case was heard and determined by the Federal Court of Australia.

The central legal issue in this case was whether Pascoe was entitled to be registered as the holder of all issued shares in the defendant company, and if so, whether the court should order the winding up of the company and the appointment of an official liquidator. The court also needed to consider whether the costs of the application should be paid by the defendant.

The Federal Court found in favour of Pascoe, holding that he was indeed entitled to be registered as the holder of all issued shares in Ambernap Pty Ltd. The court determined that, given the circumstances, the appropriate course of action was to wind up the company and appoint an official liquidator. The court also ordered that the costs of the application be paid by the defendant. These findings were based on the evidence presented and the application of relevant legal principles.

The court's final orders declared that Pascoe was entitled to be registered as the holder of all issued shares in the defendant, mandated the defendant or the Registrar to take necessary actions to effect this registration, ordered the winding up of the defendant under the Corporations Act 2001 (Cth), appointed Scott Darren Pascoe as the official liquidator, and directed that the costs of the application be paid out of the defendant's assets.

Orders

Orders of the court

THE COURT:

1. Declares that the plaintiff is entitled to be registered as the holder of all the issued shares in the defendant.

2. Orders that the defendant, or in default the Registrar, do all things and sign all documents necessary to cause the plaintiff to be registered as the holder of all the issued shares in the defendant.

3. Orders that the defendant be wound up under the Corporations Act 2001 (Cth).

4. Orders that Scott Darren Pascoe be appointed official liquidator of the defendant.

5. Orders that the costs to the plaintiff of this application be paid out of the assets of the defendant.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JACOBSON J

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Ratio Decidendi

Legal Principle Established

Established by: JACOBSON J

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IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1894 of 2008

BETWEEN:	SCOTT DARREN PASCOE AS TRUSTEE OF THE PROPERTY OF JON MCARTHUR, A BANKRUPT Plaintiff
AND:	AMBERNAP PTY LTD (ACN 097 909 405) Defendant

JUDGE:	JACOBSON J
DATE OF ORDER:	19 DECEMBER 2008
WHERE MADE:	SYDNEY

JUDGE:	JACOBSON J
DATE:	19 DECEMBER 2008
PLACE:	SYDNEY