Re: Equititrust Limited (in liq) - [2013] QSC 346

SUPREME COURT OF QUEENSLAND

CITATION:

Re: Equititrust Limited (in liq) [2013] QSC 346

PARTIES:

DAVID WHYTE AS RECEIVER OF THE PROPERTY OF THE EQUITITRUST INCOME FUND (RECEIVER APPOINTED)
(applicant)
v
RICHARD ALBARRAN, BLAIR PLEASH AND GLEN OLDHAM AS LIQUIDATORS OF EQUITITRUST LIMITED ACN 061 383 944 (IN LIQUIDATION) (RECEIVERS AND MANAGERS APPOINTED)
(respondents)

FILE NO/S:

BS 6790 of 2013

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

17 December 2013

DELIVERED AT:

Brisbane

HEARING DATE:

5 December 2013

JUDGE:

Philip McMurdo J

ORDER:

It is declared that the document which is Exhibit JSK3 to the affidavit of Jacqueline Suzanne Kemp sworn on 24 July 2013 was and is not a proof of debt or claim for the purposes of s 553D of the Corporations Act 2001 (Cth) or regs 5.6.39 to 5.6.74 of the Corporations Regulations 2001 (Cth).

CATCHWORDS:

CORPORATIONS – WINDING UP – CONDUCT AND INCIDENTS OF WINDING UP – PROOF OF DEBTS – PROCEDURE – where the applicant is the receiver of an income fund – where the respondents are the liquidators of a company responsible for administering the fund – where the applicant submitted a notice to the respondents claiming that the company was indebted to the fund – where the notice was submitted to the respondents in their capacity as administrators of the company – where the company subsequently went into liquidation and the respondents were appointed liquidators – where the applicant did not submit any notice to the respondents subsequent to their appointment as liquidators – where the respondents treated the applicant’s notice as a formal proof of debt –whether a formal proof of debt can be submitted at an administrator’s meeting – whether the notice submitted by the applicant at the administrator’s meeting was a formal proof of debt – whether a formal proof of debt submitted at an administrator’s meeting constitutes a formal proof of debt that has been submitted with a liquidator, where the company subsequently goes into liquidation – whether the notice submitted by the applicant at the administrator’s meeting constituted a formal proof of debt submitted to the respondent liquidators for the purposes of the liquidation – whether a formal proof of debt has been submitted to the respondent liquidators where none has been presented to them

Corporations Act 2001 (Cth), s 439A, s 553D

Corporations Regulations 2001, reg 5.6.23, reg 5.6.26

Bovis Lend Lease Pty Ltd v Wily (2003) 45 ACSR 612; [2003] NSWSC 467, applied
Derwinto Pty Ltd (in liq) v Lewis (2002) 42 ACSR 645; [2002] NSWSC 731, considered
Re: Castleplex Pty Ltd (in liq) [2010] QCA 59, discussed

Selim v McGrath (2003) 177 FLR 85; [2003] NSWSC 927, cited

COUNSEL:

S E Brown QC with M S Trim for the applicant

C A Wilkins for the respondents

SOLICITORS:

Gadens Lawyers for the applicant

Thomsons Lawyers for the respondents

The applicant is the court appointed receiver of a fund called the Equititrust Income Fund.…

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: Equititrust Limited (in liq)

Details

AGLC: Re: Equititrust Limited (in liq) [2013] QSC 346
Case: [2013] QSC 346
Decision Date: 17 December 2013

CaseChat Overview and Summary

The case before the court involved Equititrust Limited, which was in liquidation, and a receiver of an income fund who had submitted a claim for debts owed by the company. The receiver had sent a notice to the respondents, who were the liquidators of the company, stating that the company owed money to the fund. However, the notice was submitted when the respondents were still in their capacity as administrators of the company, not as liquidators. The issue before the court was whether a formal proof of debt can be submitted at an administrator’s meeting, and if the notice submitted by the receiver constituted a formal proof of debt that had been submitted to the liquidators for the purposes of the liquidation.

The court considered the relevant provisions of the Corporations Act 2001 and the Corporations Regulations 2001, which set out the requirements for submitting a formal proof of debt. The court found that the notice submitted by the receiver was not a formal proof of debt because it was submitted to the respondents in their capacity as administrators, not as liquidators. The court held that a formal proof of debt must be submitted to the liquidators for the purposes of the liquidation, and that the notice submitted by the receiver did not meet this requirement. The court also found that the notice did not constitute a formal proof of debt that had been submitted to the liquidators, as the liquidators had not received any notice from the receiver subsequent to their appointment.

The court's decision was that the document which is Exhibit JSK3 to the affidavit of Jacqueline Suzanne Kemp sworn on 24 July 2013 was not a proof of debt or claim for the purposes of the Corporations Act 2001 or the Corporations Regulations 2001. This decision clarifies the requirements for submitting a formal proof of debt in the context of a company’s liquidation.

Orders

Orders of the court

It is declared that the document which is Exhibit JSK3 to the affidavit of Jacqueline Suzanne Kemp sworn on 24 July 2013 was and is not a proof of debt or claim for the purposes of s 553D of the Corporations Act 2001 (Cth) or regs 5.6.39 to 5.6.74 of the Corporations Regulations 2001 (Cth).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Re: Equititrust Limited (in liq) [2013] QSC 346
PARTIES:	DAVID WHYTE AS RECEIVER OF THE PROPERTY OF THE EQUITITRUST INCOME FUND (RECEIVER APPOINTED) (applicant) v RICHARD ALBARRAN, BLAIR PLEASH AND GLEN OLDHAM AS LIQUIDATORS OF EQUITITRUST LIMITED ACN 061 383 944 (IN LIQUIDATION) (RECEIVERS AND MANAGERS APPOINTED) (respondents)
FILE NO/S:	BS 6790 of 2013
DIVISION:	Trial Division
PROCEEDING:	Originating Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	17 December 2013
DELIVERED AT:	Brisbane
HEARING DATE:	5 December 2013
JUDGE:	Philip McMurdo J
ORDER:	It is declared that the document which is Exhibit JSK3 to the affidavit of Jacqueline Suzanne Kemp sworn on 24 July 2013 was and is not a proof of debt or claim for the purposes of s 553D of the Corporations Act 2001 (Cth) or regs 5.6.39 to 5.6.74 of the Corporations Regulations 2001 (Cth).
CATCHWORDS:	CORPORATIONS – WINDING UP – CONDUCT AND INCIDENTS OF WINDING UP – PROOF OF DEBTS – PROCEDURE – where the applicant is the receiver of an income fund – where the respondents are the liquidators of a company responsible for administering the fund – where the applicant submitted a notice to the respondents claiming that the company was indebted to the fund – where the notice was submitted to the respondents in their capacity as administrators of the company – where the company subsequently went into liquidation and the respondents were appointed liquidators – where the applicant did not submit any notice to the respondents subsequent to their appointment as liquidators – where the respondents treated the applicant’s notice as a formal proof of debt –whether a formal proof of debt can be submitted at an administrator’s meeting – whether the notice submitted by the applicant at the administrator’s meeting was a formal proof of debt – whether a formal proof of debt submitted at an administrator’s meeting constitutes a formal proof of debt that has been submitted with a liquidator, where the company subsequently goes into liquidation – whether the notice submitted by the applicant at the administrator’s meeting constituted a formal proof of debt submitted to the respondent liquidators for the purposes of the liquidation – whether a formal proof of debt has been submitted to the respondent liquidators where none has been presented to them Corporations Act 2001 (Cth), s 439A, s 553D Corporations Regulations 2001, reg 5.6.23, reg 5.6.26 Bovis Lend Lease Pty Ltd v Wily (2003) 45 ACSR 612; [2003] NSWSC 467, applied Derwinto Pty Ltd (in liq) v Lewis (2002) 42 ACSR 645; [2002] NSWSC 731, considered Re: Castleplex Pty Ltd (in liq) [2010] QCA 59, discussed Selim v McGrath (2003) 177 FLR 85; [2003] NSWSC 927, cited
COUNSEL:	S E Brown QC with M S Trim for the applicant C A Wilkins for the respondents
SOLICITORS:	Gadens Lawyers for the applicant Thomsons Lawyers for the respondents