Re HIH Services Pty Ltd (in liq)
[2012] NSWSC 1188
•25 July 2012
Supreme Court
New South Wales
Medium Neutral Citation: Re HIH Services Pty Ltd (In Liq); Re HIH New Zealand Pty Ltd (In Liq); Re HIH Australia Pty Ltd (In Liq); Re Mariners on the Water Pty Ltd (In Liq); Re FAI Property (Qld) Pty Ltd (In Liq); Re FAI Property Services Pty Ltd (In Liq); Re Sailport Pty Ltd (In Liq); Re Bingaton Pty Ltd (In Liq); Re Worldwide Weather Underwriting Agencies (Australia) Pty Limited (In Liq) [2012] NSWSC 1188 Hearing dates: 25 July 2012 Decision date: 25 July 2012 Jurisdiction: Equity Division Before: Brereton J Decision: Orders at paragraph 29
Catchwords: CORPORATIONS - external administration - insolvency - distribution of surplus in liquidators' hands - Whether special leave should be granted to liquidators - Direction dispensing with schedule of entitlements - Where case simple and straightforward - Assignment of debt - Where company in liquidation owed debt by another company in liquidation in same corporate group - Where sole contributory another company in same corporate group - Whether company in liquidation can transfer debt owed by other company in liquidation in same corporate group to contributory - Distribution in specie - Company's constitution Legislation Cited: (Cth) Corporations Act 2001, s 479(3), s 488(2), s 1322(4)
(Cth) Corporations Regulation 2001, reg. 5.6.65, reg 5.6.48
(NSW) Supreme Court Corporations Rules, r 7.9, r 7.5(6)Cases Cited: Brealey v Shields [2009] NSWSC 1148
FAI General Insurance Co Limited v FAI Car Owners Mutual Insurance Co Pty Ltd [2009] NSWSC 1350; (2009) 262 ALR at 552
FAI General Insurance Co v FAI Car Owners Mutual Insurance Co Pty Ltd [2009] NSWSC 1417
Klaus Maertin Pty Ltd (in liq), Re; Maertin v Klaus Maertin Pty Ltd [2009] NSWSC 618; (2009) 232 FLR 239
Longley v ACN 090 609 868 (in Liq) (formerly Solar Systems Pty Ltd) [2010] FCA 1468; (2010) 276 ALR 728
Re DS Millard & Son Pty Limited (1997) 24 ACSR 71
Trussted Fames & Trusses Holdings Pty Limited (in Liq) (unreported, 28 June 2012, NSWSC)Category: Interlocutory applications Parties: Anthony Gregory McGrath and Christopher John Honey in their Capacity as Liquidators of HIH Services Pty Limited (In Liq) ACN 004 538 032
Anthony Gregory McGrath And Christopher John Honey in their Capacity as Liquidators of HIH New Zealand Pty Limited (In Liq) ACN085 065 667
Anthony Gregory McGrath and Christopher John Honey in their Capacity as Liquidators of HIH (Australia) Pty Limited (In Liq) ACN 072 126 044
Anthony Gregory McGrath and Christopher John Honey in their Capacity as Liquidators of Mariners on the Water Pty Ltd (In Liq) ACN 003 964 109
Murray Campbell Smith in his Capacity as Liquidator of FAI Properties (Qld) Pty Limited (In Liq) ACN 010 511 583
Anthony Gregory McGrath And Christopher John Honey in their Capacity as Liquidators of Re FAI Property Services Pty Ltd (In Liq) ACN 003 387 719
Murray Campbell Smith in his Capacity as Liquidator of Sailport Pty Ltd (In Liq) ACN 010 590 208
Anthony Gregory McGrath and Christopher John Honey in their Capacity as Liquidators of Bingaton Pty Ltd (In Liq) ACN 003 444 344
Anthony Gregory McGrath and Christopher John Honey in their Capacity as Liquidators of Worldwide Weather Underwriting Agencies (Australia) Pty Limited (In Liq) ACN 059 209 175Representation: Counsel:
Mr Scarcella (Solicitor) (Applicants)
Solicitors:
Ashurst - Australia
File Number(s): 1. 2004 / 182140
File numbers cont.: 2. 2004 / 182169; 3. 2006 / 259862; 4. 2004 / 182159; 5. 2004 / 182143; 6. 2004 / 184587; 7. 2004 / 182151; 8. 2004 / 182158; 9. 2002 / 061962
Judgment (ex tempore)
HIS HONOUR: There are before the court applications in nine windings-up of companies in the HIH Group ("Group"), representing the fourth of a series of applications by the liquidators of the Group to distribute the surplus in solvent companies, and dividends in insolvent companies, to the contributories and creditors which are themselves other companies in the Group, and, consequent upon some further formal steps being taken, to release the liquidators and deregister the subject companies.
The first tranche of these applications was considered by Barrett J in FAI General Insurance Co Limited v FAI Car Owners Mutual Insurance Co Pty Ltd [2009] NSWSC 1350; (2009) 262 ALR at 552; and subsequently in FAI General Insurance Co v FAI Car Owners Mutual Insurance Co Pty Ltd [2009] NSWSC 1417, where his Honour addressed many of the relevant principles. I have been guided by the approaches his Honour took, and his Honour's observations relieve me from the need to address more elaborately many of the issues.
HIH Services Pty Ltd (In Liq)
It is convenient to commence with the application made in respect of HIH Services Pty Ltd, which is an insolvent company. In that application, a direction is sought pursuant to (Cth) Corporations Act 2001, s 479(3), to the effect that the liquidators would be justified in distributing, in specie, certain assets of the company to its sole creditor - another Group company - those assets being the right of the company to prove in the liquidation scheme of arrangement of yet another Group company.
In Longley v ACN 090 609 868 (in liq) (formerly Solar Systems Pty Ltd) [2010] FCA 1468; (2010) 276 ALR 728, Finklestein J said that there was no reason in principle why creditors could not unanimously agree to have transferred to them all the assets of a company in liquidation instead of the proceeds of sale of those assets, provided that the rights of contributories were not prejudiced - which they would not be if the assets transferred had a market value that, when taken into account with the costs and expenses of a sale, was less than what was due to the creditors. His Honour considered that there was nothing in the Corporations Act that would render an in specie distribution invalid or contrary to public policy.
As I have said, HIH Services Pty Ltd (in Liq) is an insolvent company. The assets to be transferred, being rights to prove in an insolvent estate, are less than the value of the creditors' claims, and considerable economies or savings will accrue to the Group from being relieved of the cost of realization and distribution of dividends in respect of the intercompany debts, rather than assigning them as proposed. I therefore make order 1 in the amended interlocutory process.
The second order claimed is a direction pursuant to Corporations Act, s 1322(4), that the proposed declaration of the final dividend is not invalidated by reason of non-compliance with (Cth) Corporations Regulation 2001, reg. 5.6.65, and, alternatively, that the time for publication of the notice of the intention to declare a dividend in accordance with that regulation be extended. This arises because reg 5.6.65 requires that the liquidator give notice of an intention to declare a dividend not more than two months before the intended date (by publishing Form 546 in the Gazette, and in writing in accordance with Form 547 or 548 to any known potential creditor), and no such notice has been published or given. That said, notice calling for proofs of debt in respect of this company, under reg 5.6.48, was published, and there is, by reason of the wide publicity that has attended the liquidation of the Group, and the extensive investigations that have taken place, a sound basis for the liquidators to form the conclusion, which they have expressed on oath, that they are satisfied that there are no creditors other than the sole internal creditor. Given the nature and the extent of the publicity surrounding this liquidation, and the liquidator's examinations and investigations, the prospect of any interested party being unknown to the liquidators is extremely remote. The publication of the requisite notice is, particularly in the context of this case, procedural in nature. I am satisfied that relieving the liquidator of the consequences of non-compliance with 5.6.65 will not prejudice any person. I therefore make order 2A in the amended interlocutory process.
The third order sought is the approval of remuneration. I am satisfied that the amounts for past and future remuneration are reasonable in the circumstances. I make order 3 in the amended interlocutory process.
Orders 4 and 5 in the amended interlocutory process are not sought on this occasion, and are to be addressed on the adjourned date. I am, on the basis of the decisions ultimately made by Barrett J in earlier phase applications, satisfied that it would be appropriate to make the order for destruction of books and records in the terms sought.
HIH New Zealand Pty Limited (In Liq)
The second application is made in respect of HIH New Zealand Pty Limited (In Liq), which is a solvent company. In that case, special leave is sought pursuant to Corporations Act, s 488(2), to distribute surplus assets of the company. The company has only one contributory.
The requirement for "special" leave means no more than that there must be a "particular" grant of leave to make the distribution, rather than its merely being included with other administrative matters [Klaus Maertin Pty Ltd (in liq), Re; Maertin v Klaus Maertin Pty Ltd [2009] NSWSC 618; (2009) 232 FLR 239; citing Re DS Millard & Son Pty Limited (1997) 24 ACSR 71; Re Trussted Fames & Trusses Holdings Pty Limited (in Liq) (unreported, 28 June 2012, NSWSC)].
(NSW) Supreme Court Corporations Rules, r 7.9, specifies that the affidavit in support of an application for special leave to distribute a surplus must state how the liquidator intends to distribute the surplus, including the name and address of each person to whom the liquidator intends to distribute, and that at least fourteen days before the date fixed for hearing the liquidator must publish a notice of the application in accordance with Form 15, published in accordance with r 2.11. The evidence - in particular, the affidavit of Ashleigh Jannece Kable sworn 17 July 2012 - proves compliance with those requirements.
The evidence also establishes that there is a surplus available for distribution. Given that there is only one contributory, the case is a simple one, such that it is appropriate to dispense with the requirement to annex to the order a schedule in accordance with Form 511, as is otherwise required by Corporations Regulation, reg. 5.6.71(1). However, consistent with what has happened in other cases, the order should state on its face to whom the assets are to be distributed, if it is not set out in a schedule [Re Klaus Maerten Pty Limited; Brealey v Shields [2009] NSWSC 1148; Re FAI Car Owners Mutual Insurance Pty Ltd [2009] NSWSC 1350; Re Trussted Frames & Trusses]. Accordingly, I make order 1 in the amended interlocutory process, subject to the addition thereto of the words "to the sole contributory at HIH Overseas Holdings (in liquidation)".
I make order 2 in the amended interlocutory process.
Claim 3 is for direction, pursuant to 479(3), that the liquidators would be justified in making an in specie distribution. The constitution of the company provides for an in specie distribution in the case of a winding up, if authorised by a special resolution of a company. The evidence establishes that such a special resolution has been adopted. The resolution specifically refers to a distribution "in kind" of particular assets, and thus addresses the concerns that troubled Barrett J in the earlier cases, to which I have referred. In those circumstances, it might be said the liquidators need no authority or approval from the Court to take that course. However it has been submitted that because, in effect, the liquidators are contracting or dealing with themselves, they ought, as officers of the Court, be entitled to approach the Court for, as it were, endorsement of the course that they propose to take, lest it may otherwise be called in to question. The evidence establishes that the practical effect of what is proposed in this, and the associated cases, is to transfer rights of proof of debt in other Group companies to companies higher in the Group structure, without the cost of realising the debt and declaring or distributing a dividend, or in this case realising the debt and paying the proceeds to the contributory. This will ultimately see a greater fund available for distribution to creditors of the main companies in the Group, and avoid those benefits being further eroded by costs associated with realisation of the debts in the meantime. I am satisfied in those circumstances it is appropriate to give the liquidators the direction that they seek. I make order 3 in the amended interlocutory process.
The fourth order sought is approval of remuneration, and for reasons expressed in respect of the preceding company, I make order 4 in the amended interlocutory process.
HIH (Australia) Pty Limited (in Liq)
The third application is in respect of HIH Australia Pty Limited (in Liq), an insolvent company. The same considerations apply to the relief sought in this case as applied in the first case. I make orders 1, 2 and 3 in the amended interlocutory process.
Mariners on the Water Pty Ltd (In Liq)
The fourth application is in respect of Mariners On the Water Pty Limited (in Liq), a solvent company. The same considerations apply in this case as in the second application.
I make order 1 in the amended interlocutory process, subject to the addition thereto of the words, "to the sole contributory FAI Properties Pty Limited (in liquidation)". I make orders 2, 3, and 4 in the amended interlocutory process.
FAI Properties (Qld) Pty Ltd (In Liq)
The fifth application is in the matter of FAI Properties (QLD) Pty Ltd (in Liq), a solvent company, to which the same considerations apply as in the second application. I make order 1 in the amended interlocutory process, subject to the addition thereto of the words "to the sole contributory FAI Properties Pty Limited (in liquidation)". I make orders 2, 3 and 4 in the amended interlocutory process.
FAI Property Services Pty Ltd (in Liq)
The sixth application concerns FAI Property Services Pty Limited, an insolvent company. I make order 1 in the amended interlocutory process, subject to the addition thereto of the words, "to the sole contributory FAI Properties Pty Limited (in liquidation)". I make orders 2, 3 and 4 in the amended interlocutory process.
Sailport Pty Ltd (In Liq)
The next matter concerns Sailport Pty Ltd, a solvent company. I make order 1 in the amended interlocutory process, subject to the addition thereto of the words "to the sole contributory FAI Leasing Finance Pty Limited (in liquidation)". I make orders 2, 3 and 4 in the amended interlocutory process.
Bingaton Pty Ltd (In Liq)
The eighth matter is in respect of Bingaton Pty Ltd (in Liq), a solvent company, I make order 1 in the amended interlocutory process, subject to the addition thereto of the words, "to the sole contributory FAI Insurances Limited (in Liquidation and Subject to a Scheme of Arrangement)". I make orders 2, 3 and 4 in the amended interlocutory process.
Worldwide Weather Underwriting Agencies (Australia) Pty Ltd (in Liq)
The final matter is Worldwide Weather Underwriting Agencies (Australia) Pty Ltd (in Liq). The circumstances of this company are somewhat different, in that it is the only one of those presently under consideration which is not wholly owned by another member company of the HIH Group, and which potentially has a creditor external to the Group.
So far as the external creditor is concerned, he has not lodged a proof of debt, despite advertisements calling for one, and, despite extensive endeavours on the part of the liquidators to locate him, in Australia and abroad, he has not been able to be located. It appears that this creditor is associated with the other shareholder, a company formerly registered in the Bahamas, which was apparently deregistered in or about 2002. The prospect that he would now emerge is remote. The liquidator has determined not to make provision for his claim. Although the company may not be technically insolvent, as the only admitted creditor has been paid in full, it will generate no surplus, as the assets are insufficient to cover the costs of the liquidation and interest on the creditor's claim. In those circumstances, the prospects that there would be any return to the Bahaman company as a contributory are effectively nil.
I make order 1A in the amended interlocutory process. I make order 2 in the amended interlocutory process.
Dispensing with notice requirements
In connection with the proposed release of the liquidators and deregistration of the companies, the liquidators have sought, in each matter, orders pursuant to (NSW) Supreme Court (Corporations) Rules 1999, r 7.5(6), dispensing with the requirement to serve on each creditor and contributory a copy of the interlocutory process, liquidator's accounts and statements of financial position.
The purpose of r 7.5(6) is to ensure that each person interested in the winding up is informed of the liquidator's application for a release, and provided the essential financial information that may enable that person to object to the liquidator being released, or otherwise to take steps for the protection of their position before the liquidator is released. In this case, with the exception of Worldwide Weather Underwriting Agencies, to which I have referred, each creditor is a company internal to HIH Group, of which the liquidators, or one or more of them, are liquidators, and each contributory is a company in that Group. In those circumstances, requiring service of the interlocutory process and associated material would be superfluous. So far as World Wide Weather Underwriting Agencies is concerned, for the reasons I have already given, I consider it unnecessary to serve notice of the interlocutory process.
In each matter therefore, I order pursuant to Corporation Rules, r 7.5(6), that the liquidators need not serve on each creditor who proved a debt in the course of the winding up of the company and on each contributory of the company, a copy of this interlocutory process, the liquidator's receipts and payments in the winding up of the company, and the statement of financial position of the company at the date on which this interlocutory process was filed.
Orders
I make the following orders and directions in respect of each application:
HIH Services Pty Ltd (In Liq)
(1) That, pursuant to section 479(3) of the Corporations Act 2001 (Cth) ("Act"), the Applicants, on behalf of HIH Services Pty Limited (In Liquidation) ACN 004 538 032 ("Company"), are justified in distributing in specie the following asset of the Company to HIH Underwriting Holdings Pty Limited ACN 004 829 494 (In Liquidation) ("HIH UH"), the sole creditor of the Company, in the following manner:
(a) the right of the Company to prove in the liquidation or scheme of arrangement of HIH Underwriting and Insurance (Australia) Pty Limited (In Liquidation and Subject to a Scheme of Arrangement) ACN 004 906 110 in the sum of $1,018,658.00 be assigned to HIH UH by entering into the Deed of Assignment in the form of, or substantially in the form of, the document at Tab 21 of CJH-1 to the affidavit of Christopher John Honey sworn on 21 June 2012.
(2) That, pursuant to section 1322(4) of the Act, the proposed declaration of a final dividend to the creditors of the Company is not invalidated by reason of non-compliance with regulation 5.6.65 of the Corporations Regulations 2001 (Cth) ("Regulations").
(3) That, pursuant to section 473(3)(b)(ii) of the Act, the Applicants' remuneration for the liquidation of the Company for the period:
(a) 10 December 2004 to 4 May 2012 (inclusive), is determined to be $16,674.50 plus GST; and
(b) 5 May 2012 until and including the deregistration of the Company be fixed in the amount of $9,710.00 plus GST.
(4) That, pursuant to rule 7.5(6) of the Supreme Court (Corporations) Rules 1999 (Cth) ("Rules"), the Applicants need not serve on each creditor who proved a debt in the course of the winding up of the Company, and on each contributory of the Company, a copy of:
(a) the interlocutory process filed in these proceedings on 27 June 2012;
(b) the amended interlocutory process filed in these proceedings on 25 July 2012;
(c) the Applicants' receipts and payments in the winding up of the Company; and
(d) the statement of financial position of the Company at the date the amended interlocutory process was filed in these proceedings.
HIH New Zealand Pty Limited (In Liq)
(1) That, pursuant to section 488(2) of the Act, the Applicants be granted special leave to distribute the surplus assets of HIH New Zealand Pty Limited (In Liquidation) ACN 085 065 667 ("Company") to the sole contributory, HIH Overseas Holdings Limited (In Liquidation) ACN 008 636 566 ("HIH OH").
(2) That, pursuant to regulation 5.6.71(1) of the Regulations, the order authorising the distribution of surplus of the Company need not have annexed to it a schedule in accordance with Form 551.
(3) That, pursuant to section 479(3) of the Act, the Applicants, on behalf of the Company, are justified in making an in specie distribution of the following surplus assets of the Company in the following manner:
(a) the right of the Company to prove in the liquidation of HIH OH in the sum of $37,458,598.02 be released by entering into the Deed of Release in the form of, or substantially in the form of, the document at Tab 23 of Exhibit CJH-1 to the affidavit of Christopher John Honey sworn on 21 June 2012; and
(b) the right of the Company to prove in the liquidation or scheme of arrangement of HIH Casualty & General Insurance (N.Z.) Ltd (In Liquidation) (a company incorporated in New Zealand) in the sum of $182,132.61 be assigned by entering into the Deed of Assignment in the form of, or substantially in the form of, the document at Tab 22 of Exhibit CJH-1 to the affidavit of Christopher John Honey sworn on 21 June 2012.
(4) That, pursuant to section 473(3)(b)(ii) of the Act, the Applicants' remuneration for the liquidation of the Company for the period:
(a) 10 December 2004 to 4 May 2012 (inclusive), is determined to be $22,302.50 plus GST; and
(b) 5 May 2012 until and including the deregistration of the Company be fixed in the amount of $9,710.00 plus GST.
(5) That, pursuant to rule 7.5(6) of the Rules, the Applicants need not serve on each creditor who proved a debt in the course of the winding up of the Company, and on each contributory of the Company, a copy of:
(a) the interlocutory process filed in these proceedings on 27 June 2012;
(b) the amended interlocutory process filed in these proceedings on 25 July 2012;
(c) the Applicants' receipts and payments in the winding up of the Company; and
(d) the statement of financial position of the Company at the date the amended interlocutory process was filed in these proceedings.
HIH (Australia) Pty Limited (in Liq)
(1) That, pursuant to section 479(3) of Act, the Applicants, on behalf of HIH (Australia) Pty Limited (In Liquidation) ACN 072 126 044 ("Company"), are justified in distributing in specie the following assets of the Company to HIH Insurance Holdings (N.Z.) (In Liquidation) (NZ Co. No. 664527) ("HIH NZ"), the sole creditor of the Company, in the following manner:
(a) the right of the Company to prove in the liquidation of HIH Investment Holdings Ltd (In Liquidation) ACN 008 664 293 in the sum of $26,390,696.95; and
(b) the right of the Company to prove in the liquidation of HIH Overseas Holdings Ltd (In Liquidation) ACN 008 636 566 in the sum of $22,063,972.69,
be assigned to HIH NZ by entering into the Deed of Assignment in the form of, or substantially in the form of, the document at Tab 24 of CJH-1 to the affidavit of Christopher John Honey sworn on 21 June 2012.
(2) That, pursuant to section 1322(4) of the Act, the proposed declaration of a final dividend to the creditors of the Company is not invalidated by reason of non-compliance with regulation 5.6.65 of the Regulations.
(3) That, pursuant to section 473(3)(b)(ii) of the Act, the Applicants' remuneration for the liquidation of the Company for the period:
(a) 21 December 2006 to 4 May 2012 (inclusive) is determined to be $17,033.50 plus GST; and
(b) 5 May 2012 until and including the deregistration of the Company be fixed in the amount of $9,710.00 plus GST.
(4) That, pursuant to rule 7.5(6) of the Rules, the Applicants need not serve on each creditor who proved a debt in the course of the winding up of the Company, and on each contributory of the Company, a copy of:
(a) the interlocutory process filed in these proceedings on 27 June 2012;
(b) the amended interlocutory process filed in these proceedings on 25 July 2012;
(c) the Applicants' receipts and payments in the winding up of the Company; and
(d) the statement of financial position of the Company at the date the amended interlocutory process was filed in these proceedings.
Mariners on the Water Pty Ltd (In Liq)
(1) That, pursuant to s 488(2) of the Act, the Applicants be granted special leave to distribute the surplus assets of Mariners on the Water Pty Limited (In Liquidation) ACN 003 964 109 ("Company") to the sole contributory, FAI Properties Pty Ltd (In Liquidation) ACN 000 099 927.
(2) That, pursuant to regulation 5.6.71(1) of the Regulations, the order authorising the distribution of surplus of the Company need not have annexed to it a schedule in accordance with Form 551.
(3) That, pursuant to section 479(3) of the Act, the Applicants, on behalf of the Company, are justified in making an in specie distribution of the following surplus assets of the Company in the following manner:
(a) the right of the Company to prove in the liquidation or schemes of arrangement of HIH Casualty & General Insurance Limited (In Liquidation and subject to Schemes of Arrangement) ACN 008 482 291 in the sum of $190,245.30; and
(b) the right of the Company to prove in the liquidation or schemes of arrangement of FAI General Insurance Company Limited (In Liquidation and Subject to Schemes of Arrangement) ACN 000 327 855 in the sum of $3,160.58,
be assigned by entering into the Deed of Assignment in the form of, or substantially in the form of, the document at Tab 25 of CJH-1 to the affidavit of Christopher John Honey sworn on 21 June 2012.
(4) That, pursuant to section 473(3)(b)(ii) of the Act, the Applicants' remuneration for the liquidation of the Company for the period:
(a) 10 December 2004 to 4 May 2012 (inclusive) is determined to be $15,260.50 plus GST; and
(b) 5 May 2012 until and including the deregistration of the Company be fixed in the amount of $9,710.00 plus GST.
(5) That, pursuant to rule 7.5(6) of the Rules, the Applicants need not serve on each creditor who proved a debt in the course of the winding up of the Company, and on each contributory of the Company, a copy of:
(a) the interlocutory process filed in these proceedings on 27 June 2012;
(b) the amended interlocutory process filed in these proceedings on 25 July 2012;
(c) the Applicants' receipts and payments in the winding up of the Company; and
(d) the statement of financial position of the Company at the date the amended interlocutory process was filed in these proceedings.
FAI Properties (Qld) Pty Ltd (In Liq)
(1) That, pursuant to section 488(2) of the Act, the Applicant be granted special leave to distribute the surplus assets of FAI Properties (QLD) Pty Limited (In Liquidation) ACN 010 511 583 ("Company") to the sole contributory, FAI Properties Pty Ltd (In Liquidation) ACN 000 099 927.
(2) That, pursuant to regulation 5.6.71(1) of the Regulations, the order authorising the distribution of surplus of the Company need not have annexed to it a schedule in accordance with Form 551.
(3) That, pursuant to section 479(3) of the Act, the Applicant, on behalf of the Company, is justified in making an in specie distribution of the following surplus assets of the Company in the following manner:
(a) the right of the Company to prove in the liquidation or scheme of arrangement of FAI Insurances Limited (In Liquidation and subject to a Scheme of Arrangement) ACN 004 304 545 in the sum of $8,650,000.00 be assigned by entering into the Deed of Assignment in the form of, or substantially in the form of, the document at Tab 26 of CJH-1 to the affidavit of Christopher John Honey sworn on 21 June 2012.
(4) That, pursuant to section 473(3)(b)(ii) of the Act, the Applicant's remuneration for the liquidation of the Company for the period:
(a) 9 December 2004 to 4 May 2012 (inclusive) is determined to be $19,243.00 plus GST; and
(b) 5 May 2012 until and including the deregistration of the Company be fixed in the amount of $9,710.00 plus GST.
(5) That, pursuant to rule 7.5(6) of the Rules, the Applicant need not serve on each creditor who proved a debt in the course of the winding up of the Company, and on each contributory of the Company, a copy of:
(a) the interlocutory process filed in these proceedings on 27 June 2012;
(b) the amended interlocutory process filed in these proceedings on 25 July 2012;
(c) the Applicant's receipts and payments in the winding up of the Company; and
(d) the statement of financial position of the Company at the date the amended interlocutory process was filed in these proceedings.
FAI Property Services Pty Ltd (in Liq)
(1) That, pursuant to section 488(2) of the Act, the Applicants be granted special leave to distribute the surplus assets of FAI Property Services Pty Limited (In Liquidation) ACN 003 387 719 ("Company"), to the sole contributory, FAI Properties Pty Ltd (In Liquidation) ACN 000 099 927.
(2) That, pursuant to regulation 5.6.71(1) of the Regulations, the order authorising the distribution of surplus of the Company need not have annexed to it a schedule in accordance with Form 551.
(3) That, pursuant to section 479(3) of the Act, the Applicants, on behalf of the Company, are justified in making an in specie distribution of the following surplus assets of the Company in the following manner:
(a) the right of the Company to prove in the liquidation or schemes of arrangement of HIH Casualty & General Insurance Limited (In Liquidation and subject to Schemes of Arrangement) ACN 008 482 291 in the sum of $14,215.57;
(b) the right of the Company to prove in the liquidation of United Body Works (Qld) Pty Limited (In Liquidation) ACN 009 913 508 in the sum of $401,165.82;
(c) the right of the Company to prove in the liquidation of FAI Leasing Finance Pty Limited (In Liquidation) ACN 002 027 214 in the sum of $304,045.36; and
(d) the right of the Company to prove in the liquidation or scheme of arrangement of CIC Insurance Limited (In Liquidation and subject to a Scheme of Arrangement) ACN 004 078 880 in the sum of $656.68,
be assigned by entering into the Deed of Assignment in the form of, or substantially in the form of, the document at Tab 27 of CJH-1 to the affidavit of Christopher John Honey sworn on 21 June 2012.
(4) That, pursuant to section 473(3)(b)(ii) of the Act, the Applicants' remuneration for the liquidation of the Company for the period:
(a) 27 August 2004 to 4 May 2012 (inclusive) is determined to be $30,722.00 plus GST; and
(b) 5 May 2012 until and including the deregistration of the Company be fixed in the amount of $9,710.00 plus GST.
(5) That, pursuant to rule 7.5(6) of the Rules, the Applicants need not serve on each creditor who proved a debt in the course of the winding up of the Company, and on each contributory of the Company, a copy of:
(a) the interlocutory process filed in these proceedings on 27 June 2012;
(b) the amended interlocutory process filed in these proceedings on 25 July 2012;
(c) the Applicants' receipts and payments in the winding up of the Company; and
(d) the statement of financial position of the Company at the date the amended interlocutory process was filed in these proceedings.
Sailport Pty Ltd (In Liq)
(1) That, pursuant to section 488(2) of the Act, the Applicant be granted special leave to distribute the surplus assets of Sailport Pty Limited (In Liquidation) ACN 010 590 208 ("Company"), to the sole contributory FAI Leasing Finance Pty Ltd (In Liquidation) ACN 002 027 214.
(2) That, pursuant to regulation 5.6.71(1) of the Regulations, the order authorising the distribution of surplus of the Company need not have annexed to it a schedule in accordance with Form 551.
(3) That, pursuant to section 479(3) of the Act, the Applicant, on behalf of the Company, is justified in making an in specie distribution of the following surplus assets of the Company in the following manner:
(a) the right of the Company to prove in the liquidation of FAI Leasing Finance Pty Limited (In Liquidation) ACN 002 027 214 in the sum of $691,813.56 be released by entering into the Deed of Release in the form of, or substantially in the form of, the document at Tab 28 of Exhibit CJH-1 to the affidavit of Christopher John Honey sworn on 21 June 2012.
(4) That, pursuant to section 473(3)(b)(ii) of the Act, the Applicant's remuneration for the liquidation of the Company for the period:
(a) 10 December 2004 to 4 May 2012 (inclusive) is determined to be $16,077.00 plus GST; and
(b) 5 May 2012 until and including the deregistration of the Company be fixed in the amount of $8,335.00 plus GST.
(5) That, pursuant to rule 7.5(6) of the Rules, the Applicant need not serve on each creditor who proved a debt in the course of the winding up of the Company, and on each contributory of the Company, a copy of:
(a) the interlocutory process filed in these proceedings on 27 June 2012;
(b) the amended interlocutory process filed in these proceedings on 25 July 2012;
(c) the Applicant's receipts and payments in the winding up of the Company; and
(d) the statement of financial position of the Company at the date the amended interlocutory process was filed in these proceedings.
Bingaton Pty Ltd (In Liq)
(1) That, pursuant to section 488(2) of the Act, the Applicants be granted special leave to distribute the surplus assets of Bingaton Pty Limited (In Liquidation) ACN 003 444 344 ("Company"), to the sole contributory, FAI Insurances Limited (In Liquidation and subject to a Scheme of Arrangement) ACN 004 304 545.
(2) That, pursuant to regulation 5.6.71(1) of the Regulations, the order authorising the distribution of surplus of the Company need not have annexed to it a schedule in accordance with Form 551.
(3) That, pursuant to section 479(3) of the Act, the Applicants, on behalf of the Company, are justified in making an in specie distribution of the following surplus assets of the Company in the following manner:
(a) the right of the Company to prove in the liquidation or scheme of arrangement of FAI Insurances Limited (In Liquidation and subject to a Scheme of Arrangement) ACN 004 304 545 in the sum of $349,387.21 be released by entering into the Deed of Release in the form of, or substantially in the form of, the document at Tab 29 of Exhibit CJH-1 to the affidavit of Christopher John Honey sworn on 21 June 2012.
(4) That, pursuant to section 473(3)(b)(ii) of the Act, the Applicants' remuneration for the liquidation of the Company for the period 9 December 2004 to 4 May 2012 (inclusive) is determined to be $15,444.00 plus GST.
(5) That, pursuant to rule 7.5(6) of the Rules, the Applicants need not serve on each creditor who proved a debt in the course of the winding up of the Company, and on each contributory of the Company, a copy of:
(a) the interlocutory process filed in these proceedings on 27 June 2012;
(b) the amended interlocutory process filed in these proceedings on 25 July 2012;
(c) the Applicants' receipts and payments in the winding up of the Company; and
(d) the statement of financial position of the Company at the date the amended interlocutory process was filed in these proceedings.
Worldwide Weather Underwriting Agencies (Australia) Pty Ltd (in Liq)
(1) That, pursuant to section 1322(4) of the Act, the proposed declaration of a final dividend to the creditors of Worldwide Weather Underwriting Agencies (Australia) (In Liquidation) Pty Limited ACN 059 209 175 ("Company") is not invalidated by reason of non-compliance with regulation 5.6.65 of the Regulations.
(2) That, pursuant to section 473(3)(b)(ii) of the Act, the Applicants' remuneration for the liquidation of the Company for the period:
(a) 6 June 2002 to 4 May 2012 (inclusive) is determined to be $82,431.50 plus GST; and
(b) 5 May 2012 until and including the deregistration of the Company be fixed in the amount of $9,710.00 plus GST.
(3) That, pursuant to rule 7.5(6) of the Rules, the Applicants need not serve on each creditor who proved a debt in the course of the winding up of the Company, and on each contributory of the Company, a copy of:
(a) the interlocutory process filed in these proceedings on 27 June 2012;
(b) the amended interlocutory process filed in these proceedings on 25 July 2012;
(c) the Applicants' receipts and payments in the winding up of the Company; and
(d) the statement of financial position of the Company at the date the amended interlocutory process was filed in these proceedings.
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Decision last updated: 07 March 2014
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