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Re Anne Lewis Pty Ltd

Re Anne Lewis Pty Ltd

Case [2016] NSWSC 1860 9 November 2016

Winding Up & Liquidation

Corporate Law & Governance

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Supreme Court

New South Wales

Medium Neutral Citation: In the matter of Anne Lewis Pty Limited [2016] NSWSC 1860
Hearing dates: 9 November 2016
Decision date: 09 November 2016
Jurisdiction: Equity - Corporations List
Before: Black J
Decision:
The Court makes the following orders and directions (as well as ancillary orders):

1. Pursuant to s 488(2) of the Corporations Act 2001 (Cth), special leave be granted to the liquidator to make an interim distribution of the surplus in the liquidation of Anne Lewis Pty Limited (“Company”) in the manner specified.

2. Direct pursuant to s 479 of the Corporations Act, that the liquidator would be justified in distributing the surplus, including the interim distribution the subject of Order 1, by making an in specie distribution of the Share Portfolio.

3. Direct pursuant to s 479 of the Corporations Act, that the liquidator would be justified in calculating the distribution to be made to the First Defendant by making adjustments in the manner specified.

4. Pursuant to reg 5.6.71 of the Corporations Regulations 2001 (Cth), the order authorising the distribution of surplus of the Company need not have annexed to it a schedule in accordance with Form 551.

5. The requirements of r 7.9(2) of the Corporations (Supreme) Court Rules 1999 (NSW) be dispensed with.

6. The liquidator’s retainer with his solicitors be approved nunc pro tunc pursuant to s 477(2B) of the Corporations Act.
7. Costs of the application to form part of the costs of the winding up.
Catchwords: CORPORATIONS – winding up – liquidators – where liquidator of company sought special leave under s 488(2) of the Corporations Act 2001 (Cth) to make interim distribution of surplus in the liquidation – where contributory who was to receive distribution in the company’s winding up also had liability to make payments to the company – whether special leave to make interim distribution of surplus ought be granted – whether direction that liquidator would be justified in distributing the surplus by an in specie distribution of the share portfolio should be made – whether liquidator would be justified in calculating distribution to be made to contributory by making adjustments for the contributory’s liability to make payments to the company – whether orders ought to be made dispensing with requirements under reg 5.6.71 of the Corporations Regulations 2001 (Cth) and r 7.9(2) of the Supreme Court (Corporations) Rules 1999 (NSW) – whether the Court should approve nunc pro tunc the liquidator’s retainer with his solicitors under s 477(2B) of the Corporations Act 2001 (Cth).
Legislation Cited: - Companies Act 1936 (NSW)
- Corporations Act 2001 (Cth), ss 124, 477, 479, 488,
- Corporations Regulations 2001 (Cth), reg 5.6.71
- Supreme Court (Corporations) Rules 1999 (NSW), r 7.9
Cases Cited: - CGU Workers Compensation (NSW) Ltd v Ascom Service Automation (Australia) Pty Ltd [2005] NSWSC 747
- Cherry v Boultbee (1838) 41 ER 171
- Longley v ACN 090 609 868 Pty Ltd (in liq) [2010] FCA 1468; (2010) 81 ACSR 517

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 Re Anne Lewis Pty Ltd

Details

AGLC: In the matter of Anne Lewis Pty Ltd [2016] NSWSC 1860
Case: [2016] NSWSC 1860
Decision Date: 09 November 2016

CaseChat Overview and Summary

In the matter of Re Anne Lewis Pty Ltd, the liquidator of the company sought special leave to make an interim distribution of the surplus in the liquidation. The case was heard in the Supreme Court of New South Wales. The liquidator was seeking to distribute the surplus by an in specie distribution of the company's share portfolio. The court was also asked to determine whether the liquidator could adjust the distribution to a contributory by taking into account the contributory's liability to make payments to the company. Additionally, the liquidator sought orders dispensing with certain requirements under the Corporations Regulations 2001 (Cth) and the Supreme Court (Corporations) Rules 1999 (NSW). The court was also asked to approve nunc pro tunc the liquidator's retainer with his solicitors.

The primary legal issue before the court was whether the liquidator should be granted special leave to make an interim distribution of the surplus in the liquidation. The court needed to consider whether the liquidator would be justified in distributing the surplus by an in specie distribution of the share portfolio and whether the liquidator could make adjustments for the contributory's liability to make payments to the company. The court also needed to determine whether orders should be made dispensing with certain requirements under the Corporations Regulations 2001 (Cth) and the Supreme Court (Corporations) Rules 1999 (NSW). Finally, the court needed to consider whether it should approve nunc pro tunc the liquidator's retainer with his solicitors.

The court found that the liquidator should be granted special leave to make an interim distribution of the surplus in the liquidation. The court held that the liquidator would be justified in distributing the surplus by an in specie distribution of the share portfolio and that the liquidator could make adjustments for the contributory's liability to make payments to the company. The court also held that orders should be made dispensing with certain requirements under the Corporations Regulations 2001 (Cth) and the Supreme Court (Corporations) Rules 1999 (NSW). Finally, the court approved nunc pro tunc the liquidator's retainer with his solicitors.

The court made orders granting the liquidator special leave to make an interim distribution of the surplus in the liquidation. The court also made orders dispensing with certain requirements under the Corporations Regulations 2001 (Cth) and the Supreme Court (Corporations) Rules 1999 (NSW). Finally, the court approved nunc pro tunc the liquidator's retainer with his solicitors.

Orders