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Re One.Tel Ltd (in liq)

Re One.Tel Ltd (in liq)

Case [2014] NSWSC 1892 29 September 2014

Winding Up & Liquidation

Liquidators

Costs

Specific Performance

Corporate Law & Governance

Insolvency Law

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Supreme Court

New South Wales

Medium Neutral Citation: In the matter of One.Tel Ltd (in liquidation) [2014] NSWSC 1892
Hearing dates: 29 September 2014
Decision date: 29 September 2014
Jurisdiction: Equity Division - Corporations List
Before: Black J
Decision:
Orders made for the release of special purpose liquidator and to dispense with requirement that liquidator file a statement of financial position of company and summary of receipts and payments in winding up the company, and service of such documents on creditors.

Catchwords: CORPORATIONS – winding up – liquidators – order sought for release of special purpose liquidator – where liquidator gives evidence that all relevant assets of company have been realised and belief that there does not exist any outstanding liabilities or obligations to persons or entities – whether special purpose liquidator should be released – whether court should dispense with requirements to file and serve relevant documents under Supreme Court (Corporations) Rules 1999 (NSW) rr 7.5(5) and 7.5(6).
Legislation Cited: - Corporations Act 2001 (Cth) ss 480, 480(c), 480(d), 481(3), 481(4)
- Supreme Court (Corporation) Rules 1999 (NSW) rr 7.5(3), 7.5(3)(a), 7.5(4), 7.5(5), 7.5(6)
Cases Cited: - Re RR Impex Pty Ltd (in liq) [2013] NSWSC 1667
SingTel Optus Pty Ltd v Weston [ 2012 ] NSWSC 674; (2012) 90 ACSR 225
Category: Principal judgment
Parties: Stephen James Parbery (Plaintiff)
Representation:
Counsel:
D Sulan (Plaintiff)
Solicitors:
Johnson Winter & Slattery (Plaintiff)

File Number(s): 2014/244923

Judgment – ex tempore

By Originating Process filed on 20 August 2014, the Plaintiff, Mr Stephen James Parbery, as special purpose liquidator of One.Tel Ltd (in liquidation) ("One.Tel") seeks an order under s 480(c) of the Corporations Act 2001 (Cth) that he be released in that capacity. He also seeks orders dispensing with the application of rr 7.5(5) and 7.5(6) of the Supreme Court (Corporation) Rules 1999 (NSW) (“Corporations Rules”) to which I will refer below. He seeks an order that the costs of the application be costs in the liquidation of One.Tel.
The principles which are applicable to the release of a liquidator are well established, and I summarised them in Re RR Impex Ltd (in liq) [2013] NSWSC 1667, to which Mr Sulan, who appears for Mr Parbery, referred in submissions. It is not necessary to state those principles in detail. Broadly, s 480(c) - (d) of the Corporations Act relevantly provides that, where a liquidator has realised all of the company's property, or so much of that property as can, in his or her opinion, be realised without needlessly protracting the winding-up and has distributed any final dividend to the creditors and adjusted the rights of the contributories amongst themselves and made any final return to the contributories, he or she may apply to the Court for an order that he or she be released and that ASIC deregister the company.
The effect of an order for release of a liquidator under s 480 is stated in s 481(3) - (4) of the Corporations Act and, relevantly, releases 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 One.Tel Ltd (in liq)

Details

AGLC: Re One.Tel Ltd (in liq) [2014] NSWSC 1892
Case: [2014] NSWSC 1892
Decision Date: 29 September 2014

CaseChat Overview and Summary

The parties involved in the case were the liquidator of One.Tel Ltd, a company in liquidation, and the special purpose liquidator. The nature of the dispute was the release of the special purpose liquidator from their duties and the court's consideration of whether to dispense with certain procedural requirements under the Supreme Court (Corporations) Rules 1999 (NSW). The court involved was the New South Wales Supreme Court.

The legal issues before the court were twofold. First, whether the special purpose liquidator should be released from their duties given that all relevant assets of the company had been realised and there were no outstanding liabilities or obligations. Second, whether the court should dispense with the procedural requirements to file and serve relevant documents under the Supreme Court (Corporations) Rules 1999 (NSW) rr 7.5(5) and 7.5(6). The court had to weigh the evidence provided by the liquidator against the procedural rules to determine the appropriate course of action.

In delivering the judgment, the court considered the liquidator's evidence that all assets had been realised and that there were no outstanding liabilities or obligations. The court also noted the special purpose liquidator's role in overseeing the realisation of specific assets. The court found that the special purpose liquidator had fulfilled their duties and that there were no outstanding issues requiring further attention. Consequently, the court determined that the special purpose liquidator should be released from their duties. Regarding the procedural requirements, the court exercised its discretion under the rules to dispense with the need for filing and serving certain documents, considering the circumstances of the case and the liquidator's evidence.

The final orders of the court were that the special purpose liquidator be released from their duties and that the procedural requirements under the Supreme Court (Corporations) Rules 1999 (NSW) rr 7.5(5) and 7.5(6) be dispensed with, given the circumstances presented.

Orders