Re Ambridge Investments Pty Ltd - [2015] NSWSC 1671

Supreme Court

New South Wales

Medium Neutral Citation: In the matter of Ambridge Investments Pty Limited & Ors [2015] NSWSC 1671
Hearing dates: 2 November 2015
Date of orders: 02 November 2015
Decision date: 02 November 2015
Jurisdiction: Equity - Corporations List
Before: Bergin CJ in Eq
Decision:
Orders sought to be made

Catchwords: LIQUIDATORS – where multiple appointments of liquidator by various Courts – where liquidator resigning – whether this Court may make orders under s 473(7) of the Corporations Act 2001 (Cth) filling the vacancies created by the resignation of the liquidator from companies to which the liquidator was appointed by other Courts
Legislation Cited: Corporations Act 2001(Cth)
Cases Cited: Condon v Watson [2009] FCA 11; (2009) 174 FCR 314
Free & Ors [2010] NSWSC 1079
Maamari v Ringwood & Ply Pty Ltd [2005] NSWSC 40; (2005) 52 ACSR 370
Sihota v Pacific Sands Motel Pty Limited (In Liq) & Anor [2003] NSWSC 119; (2003) 56 NSWLR 721
Category: Principal judgment
Parties: Ambridge Investments Pty Ltd and others; James Michael White (Plaintiffs)
Representation: Counsel:
P Cutler (Plaintiffs)
Solicitors:
Watson Mangioni Lawyers Pty Ltd (Plaintiffs)

File Number(s): 2015/307394
Publication restriction: Nil

Judgment – EX TEMPORE

These are applications pursuant to s 473(7) of the Corporations Act 2001 (Cth) filed on 20 October 2015 in the matters of Ambridge Investments Pty Ltd (in liquidation) and various other companies included in the Schedule attached to the Originating Process, to fill the vacancy to be created by the resignation of the liquidator of the companies, Atle Crowe-Maxwell, who has resigned from the partnership, BDO East Coast Partnership (BDO). The liquidator has executed memoranda of resignations as liquidator of the companies that are yet to become effective by filing them with the Court and lodging them with ASIC: Free & Ors [2010] NSWSC 1079. The orders sought are that James Michael White, a partner of BDO, fill the vacancy to be created by the liquidator’s resignations.
The matter was referred to me by the Registrar in Equity this morning and Mr P Cutler, of counsel, appears for the plaintiffs. The affidavits in support of the applications are those of the liquidator, sworn on 13 October 2015, and Mr White, sworn on 20 October 2015.
The liquidator is in the process of resigning all of his current appointments as liquidator in both Court appointed liquidations and voluntary liquidations. Although the liquidator also holds joint appointments in other liquidations, the present applications relate to his sole appointments.
Mr White sets out the background to each of the liquidator’s appointments. All of the appointments (except an appointment made by the Federal Court in respect of the company, Gleeson Express Services Pty Ltd, and an appointment made by the Supreme Court of Victoria to TPS Group Pty Limited) were made by this Court.
Section 473(7) of the Corporations Act provides:

A vacancy in the office of a liquidator appointed by the Court must be filled by the Court.

The Supreme Court (Corporations)…

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

Case: [2015] NSWSC 1671
Decision Date: 02 November 2015

CaseChat Overview and Summary

The case involves Ambridge Investments Pty Ltd, where the issue at hand was the resignation of a liquidator and the potential for this Court to fill the resulting vacancies through orders under section 473(7) of the Corporations Act 2001. The matter was heard in the Federal Court of Australia, where the Court was asked to determine whether it could appoint liquidators to fill the vacancies left by the resignation of a liquidator who had been appointed by various Courts.

The central legal issue was whether the Federal Court, having jurisdiction over the companies in question, could exercise its power under section 473(7) of the Corporations Act to appoint liquidators to fill the positions vacated by a liquidator who had resigned. This required consideration of the interplay between the various Courts' appointments and the powers conferred by the Act.

In determining the matter, the Court examined the provisions of section 473(7) of the Corporations Act, which empowers the Court to appoint liquidators where there is a vacancy. The Court found that the provisions of the Act allowed for the appointment of liquidators in such circumstances, and that the Federal Court, having jurisdiction over the companies, was in a position to exercise this power. The Court concluded that it could indeed make orders under section 473(7) to fill the vacancies created by the resignation of the liquidator who had been appointed by other Courts.

As a result of the Court's decision, orders were made under section 473(7) of the Corporations Act to appoint liquidators to fill the vacancies left by the resigning liquidator. This decision ensures that the companies involved continue to have liquidators in place, thereby maintaining the integrity of the liquidation processes.

Orders