Re BM2008 Pty Ltd (in liq)

The case of Re BM2008 Pty Ltd (in liq) involved the liquidator of the company, who had been requested by a shareholder to consent to a transfer of shares. The shareholder, who was entitled to share in the surplus of the company’s assets after payment of debts, had sought an order from the court to set aside a condition that the liquidator had imposed on their consent to the transfer. The nature of the dispute was whether the condition set by the liquidator was in the best interests of the company’s creditors as a whole, and if the shareholder was a creditor for the purposes of section 493A of the Corporations Act 2001 (Cth).

The court was required to decide the scope of the term "creditors" in section 493A of the Corporations Act 2001, and whether a shareholder who was entitled to share in the surplus of the company’s assets after payment of debts was a creditor. The court also had to consider the liquidator’s power to set aside a condition on consent to transfer shares when it was not in the best interests of the company’s creditors as a whole.

In delivering the decision, the court held that a shareholder who is entitled to share in the surplus of the company’s assets after payment of debts is not a creditor of the company for the purposes of section 493A. The court also held that the liquidator’s power to set aside a condition on consent to transfer shares was limited to situations where the condition was not in the best interests of the company’s creditors as a whole. The court found that the condition imposed by the liquidator was not in the best interests of the company’s creditors as a whole, and set aside the condition. The final orders of the court were that the condition imposed by the liquidator on their consent to the transfer of shares be set aside, and that the shareholder be entitled to share in the surplus of the company’s assets after payment of debts.