SUPREME COURT OF QUEENSLAND
CITATION:
Re Octaviar Ltd (No 10) [2009] QSC 283
PARTIES:
THE PUBLIC TRUSTEE OF QUEENSLAND
(Applicant)
v
OCTAVIAR LTD (IN PROV LIQ) (RECEIVERS AND MANAGERS APPOINTED) ACN 107 863 436
OPI PACIFIC FINANCE PTY LTD
COMMISSIONER OF TAXATION
WELLINGTON CAPITAL LTD AS RESPONSIBLE ENTITY OF THE PREMIUM INCOME FUND
(Respondents)
THE PUBLIC TRUSTEE OF QUEENSLAND
(Applicant)
v
OCTAVIAR ADMINISTRATION PTY LTD (IN LIQ) ACN 101 069 390
OPI PACIFIC FINANCE PTY LTD
COMMISSIONER OF TAXATION
WELLINGTON CAPITAL LTD AS RESPONSIBLE ENTITY OF THE PREMIUM INCOME FUND
(Respondents)
JOHN LETHBRIDGE GREIG AND NICHOLAS HARWOOD IN THEIR CAPACITY AS LIQUIDATORS OF OCTAVIAR ADMINISTRATION PTY LIMITED (IN LIQ) ACN 101 069 390
(Applicant)
v
FORTRESS CREDIT CORPORATION (AUSTRALIA) II PTY LTD ACN 114 624 958
THE PUBLIC TRUSTEE OF QUEENSLAND
COMMISSIONER OF TAXATION
(Respondents)
FILE NO/S:
BS 5184 of 2008
BS 8403 of 2009
BS 9640 of 2009DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
9 September 2009
DELIVERED AT:
Brisbane
HEARING DATE:
3-4 September 2009
JUDGE:
McMurdo J
ORDER:
In BS 5184/09, it is ordered that:
1. Octaviar Ltd (in prov liq) be wound up in insolvency pursuant to s 459A of the Corporations Act 2001 (Cth);
2. William Fletcher and Katherine Elizabeth Barnet be appointed as liquidators of Octaviar Ltd (in liq) for the purposes of the winding up;
3. The applicant’s costs be costs in the winding up;
4. The application filed 1 September 2009 by John Lethbridge Greig and Nicholas Harwood as provisional liquidators of Octaviar Ltd (in liq) be dismissed.
In BS 8403/09, it is ordered that:
1. John Lethbridge Greig and Nicholas Harwood be removed as liquidators of Octaviar Administration Pty Limited (in liq);
2. William Fletcher and Katherine Elizabeth Barnet be appointed as liquidators of Octaviar Administration Pty Limited (in liq) for the purposes of the winding up;
3. The applicant’s costs be costs in the winding up.
In BS 9640/09, it is ordered that the originating application be dismissed.
CATCHWORDS:
CORPORATIONS – WINDING UP – LIQUIDATORS – REMOVAL – IN WINDING UP BY COURT – where there is potential for a claim to be made against the present liquidators for breach of duty in wrongfully paying trust monies to a third party – where there is accordingly a prospect that the present liquidators are in a position of conflict between their duty to investigate the circumstances of that payment and their interest in an outcome of that investigation favourable to them – where the cost of replacing liquidators would be significant – where the majority (in value) of creditors do not support replacing the present liquidators – whether there is sufficient “cause shown” under s 473 or s 503 of the Corporations Act 2001 (Cth) to justify the removal of the present liquidators
CORPORATIONS – WINDING UP – LIQUIDATORS – APPOINTMENT – IN WINDING UP BY COURT – WHO MAY BE APPOINTED – where a respondent-creditor objects to the appointment of certain persons as alternative…
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- AGLC
- Re Octaviar Ltd (No 10) [2009] QSC 283
- Case
- [2009] QSC 283
- Decision Date
CaseChat Overview and Summary
The court had to determine whether there was sufficient "cause shown" under sections 473 or 503 of the Corporations Act 2001 (Cth) to justify the removal of the existing liquidators, considering the potential conflict of interest and the significant costs of replacing them. The court also had to decide whether William Fletcher and Katherine Elizabeth Barnet should be appointed as liquidators despite the objections from one of the respondents, who argued that the proposed liquidators may be perceived to be influenced by advice they had previously given to the applicant.
The court found that there was no evidence to show that the proposed liquidators, William Fletcher and Katherine Elizabeth Barnet, would not be independent, and therefore they should be appointed. The court also determined that the existing liquidators should not be removed, as there was insufficient cause shown for their removal. Furthermore, the court held that the existing liquidators should be directed to enter into an agreement with the third party to secure the repayment of the trust monies in the event of an unsuccessful appeal.
The court ordered that Octaviar Ltd and Octaviar Administration Pty Limited be wound up in insolvency and that William Fletcher and Katherine Elizabeth Barnet be appointed as liquidators for the purposes of the winding up. The applicants' costs were ordered to be costs in the winding up, and the application filed by John Lethbridge Greig and Nicholas Harwood as provisional liquidators was dismissed.
Orders
Orders of the court
In BS 5184/09, it is ordered that:
1. Octaviar Ltd (in prov liq) be wound up in insolvency pursuant to s 459A of the Corporations Act 2001 (Cth);
2. William Fletcher and Katherine Elizabeth Barnet be appointed as liquidators of Octaviar Ltd (in liq) for the purposes of the winding up;
3. The applicant’s costs be costs in the winding up;
4. The application filed 1 September 2009 by John Lethbridge Greig and Nicholas Harwood as provisional liquidators of Octaviar Ltd (in liq) be dismissed.
In BS 8403/09, it is ordered that:
1. John Lethbridge Greig and Nicholas Harwood be removed as liquidators of Octaviar Administration Pty Limited (in liq);
2. William Fletcher and Katherine Elizabeth Barnet be appointed as liquidators of Octaviar Administration Pty Limited (in liq) for the purposes of the winding up;
3. The applicant’s costs be costs in the winding up.
In BS 9640/09, it is ordered that the originating application be dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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