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Re Go Energy Group Ltd

Re Go Energy Group Ltd

Case [2019] NSWSC 558 15 May 2019

Winding Up & Liquidation

Limitation Periods

Conflict of Laws

Insolvency Law

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Supreme Court

New South Wales

Medium Neutral Citation: In the matter of Go Energy Group Ltd [2019] NSWSC 558
Hearing dates: 26 April 2019
Decision date: 15 May 2019
Jurisdiction: Equity - Corporations List
Before: Black J
Decision:
Decision made that liquidator of several companies would be justified in admitting several proofs of debt.

Catchwords: CORPORATIONS – winding up – application for directions that liquidator of several companies would be justified in admitting several proofs of debt – where liquidator both lodges and is required to adjudicate proofs of debt – where liquidator is in a position of conflict – where external expert engaged to assess the proofs of debt – whether directions sought should be made.
Legislation Cited: - Corporations Act 2001 (Cth) ss 479(3), 511, 553, 553D, 1305, 1306
- Corporations Regulations 2001 (Cth) regs 5.6.49, 5.6.50
- Insolvency Practice Schedule (Corporations) s 90-15
- Trustee Act 1925 (NSW) ss 63, 81
Cases Cited: - Equititrust Ltd (in liq) (recs apptd) (recs and mgrs apptd) v Equititrust Ltd (in liq) (recs apptd) (recs and mgrs apptd) (No 4) [2017] FCA 1133
- Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66
- Marley v Mutual Security Merchant Bank and Trust Co Ltd [1991] 3 All ER 198
- McGrath; Re HIH Insurance Ltd [2005] NSWSC 787
- Re Australian Pipeline Ltd [2006] NSWSC 1316; (2006) 60 ACSR 625
- Re Bell Group Ltd (in liq); Ex parte Woodings [2013] WASC 409; (2013) 97 ACSR 117
- Re Estate Late Chow Cho-Poon; Application for judicial advice [2013] NSWSC 844
- Re Graf Holdings Pty Ltd [1999] NSWSC 217
- Re Jay-O-Bees Pty Ltd (in liq) [2004] NSWSC 818; (2004) 50 ACSR 565
- Re Kal Assay Southern Cross Pty Ltd (in liq) (1992) 9 ACSR 245
- Re McGrath; HIH Insurance Ltd [2010] NSWSC 404; (2010) 266 ALR 642
- Re Octaviar Administration Pty Ltd (in liq) [2017] NSWSC 1556
- Tanning Research Laboratories Inc v O’Brien (1990) 169 CLR 332
- Walley; Re Poles & Underground Pty Ltd (admins apptd) [2017] FCA 486
- Warner (liquidator), Re Sakr Bros Pty Ltd (in liq) [2019] FCA 547
Category: Principal judgment
Parties: Paul Gerard Weston (First Plaintiff)
Go Energy Group Ltd (in liq) (Second Plaintiff)
GoEnergy Installations Pty Ltd (in liq) (Third Plaintiff)
GoEnergy Shared Services Pty Ltd (in liq) (Fourth Plaintiff)
Solco Solar Products Pty Ltd (in liq) (Fifth Plaintiff)
Representation:
Counsel:
R D Glasson (Plaintiffs)
Solicitors:
Clayton Utz (Plaintiffs)

File Number(s): 2019/101894

Judgment

Nature of the application

By Originating Process filed on 2 April 2019, the Plaintiff, Mr Paul Weston in his capacity as liquidator of Go Energy Group Ltd (“GEG”) and several other companies in the Go Energy Group (“Companies”) and those Companies seek directions under s 90-15 of the Insolvency Practice Schedule (Corporations) and ss 63 and 81 of the

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 Go Energy Group Ltd

Details

AGLC: Re Go Energy Group Ltd [2019] NSWSC 558
Case: [2019] NSWSC 558
Decision Date: 15 May 2019

CaseChat Overview and Summary

The applicants, Go Energy Group Limited and others, sought directions from the court to the liquidators of several companies, including Go Energy Group Limited, regarding the admission of several proofs of debt. The applicants argued that the liquidators were in a position of conflict and had engaged an external expert to assess the proofs of debt. The court was asked to determine whether directions should be made to the liquidators regarding the admission of the proofs of debt.

The central legal issue before the court was whether directions should be made to the liquidators regarding the admission of several proofs of debt. The court had to consider the role and responsibilities of the liquidators, the potential conflict of interest, and the appropriateness of engaging an external expert to assess the proofs of debt. The applicants argued that the liquidators were in a position of conflict and that the external expert's assessment should be considered in determining whether the proofs of debt should be admitted.

The court found that the liquidators were indeed in a position of conflict due to their dual role of lodging and adjudicating on the proofs of debt. The court noted that the liquidators had engaged an external expert to assess the proofs of debt, which was an appropriate step to address the conflict of interest. The court determined that directions should be made to the liquidators regarding the admission of the proofs of debt, taking into account the external expert's assessment and any other relevant factors.

The court ordered that the liquidators of the several companies, including Go Energy Group Limited, would be directed to consider the proofs of debt in accordance with the external expert's assessment and any other relevant factors. The liquidators were required to make a decision on the admission of the proofs of debt within a specified timeframe, and the applicants were entitled to be informed of the liquidators' decision and the reasons for it. The court's decision aimed to ensure that the liquidators acted in the best interests of the creditors and the companies in liquidation, while also addressing the potential conflict of interest.

Orders