Re Perdives Pty Ltd - [2015] QSC 230

SUPREME COURT OF QUEENSLAND

CITATION:

Re Perdives Pty Ltd [2015] QSC 230

PARTIES:

BODY CORPORATE FOR THE AURORA TOWER CTS 35222

(applicant)

v

PERDIVES PTY LTD ACN 135 738 868 AS TRUSTEE UNDER INSTRUMENT NO. 71242661

(respondent)

FILE NO/S:

3692 of 2015

DIVISION:

Trial

PROCEEDING:

Application

DELIVERED ON:

14 July 2015

DELIVERED AT:

Brisbane

HEARING DATE:

14 July 2015

JUDGE:

Bond J

ORDER:

Delivered ex tempore on 14 July 2015:

The order of the court is that:

1. Pursuant to s 473(3) of the Corporations Act 2001 (Cth) the remuneration to which Peter Dinoris is entitled as liquidator of the respondents is $17,644.55 inclusive of GST.

2. The cost of and incidental to the application be costs in the winding up.

3. To the extent there has been non-compliance by the liquidator with r 9.4(2)(b) or r 9.4(3) of the Corporations Proceedings Rules that non-compliance be excused.

CATCHWORDS:

CORPORATIONS – LIQUIDATORS – REMUNERATION – MEETING OF CREDITORS – where the liquidator sought directions as to proper procedure for approval of liquidator’s fees – where there was no meeting of creditors – where all creditors were paid out – where all creditors were given notice of the application and do not consent to or oppose the orders sought – where the director and shareholder of the company do not oppose or consent to the orders sought

Corporations Act 2001 (Cth), s 473(3)

Australian Securities and Investment Commission v Drury Management Pty Ltd (2005) 55 ACSR 425, cited
Re Interchase Corporation Ltd (in provisional liquidation) (1993) 44 FLR 501; 117 ALR 267, considered
Re Norfolk Island Airlines Pty Ltd (in liquidation) (1991) 9 ACLC 1024, cited

Re WA Pines Pty Ltd (in liquidation) (1994) 12 ACLC 328, cited

COUNSEL:

C D Coulsen for the applicant

No appearance for the respondent

SOLICITORS:

Holman Webb Lawyers for the applicant

No appearance for the respondent

HIS HONOUR: In this matter, the liquidator of the respondent company, the winding up of which has been already been terminated by order of the Court, seeks to have me exercise jurisdiction pursuant to s 473(3) of the Corporations Act to determine the amount of remuneration to which he is entitled.

Section 473(3) provides:

A liquidator is entitled to receive such remuneration by way of percentage or otherwise as is determined:
(a) if there is a committee of inspection – by agreement between the liquidator and the committee of inspection, or
(b) if there is no committee of inspection or the liquidator and the committee of inspection fail to agree,

(i) by resolution of the creditors, or

(ii) if no such resolution is passed - by the Court.

The relevant facts are these:

a)The liquidator, Mr Dinoris, was appointed liquidator of Perdives Pty Ltd pursuant to a court order made on 11 May 2015.
b)On 9 June 2015 an application was filed seeking the termination of the winding up.
c)On 23 June 2015 orders were made providing for the termination of the winding up.
d)All creditors of…

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.

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Details

Case: [2015] QSC 230
Decision Date: 14 July 2015

CaseChat Overview and Summary

In the matter of Re Perdives Pty Ltd, the dispute revolved around the remuneration of the liquidator, Peter Dinoris, in the absence of a creditors' meeting. The case was heard in the Federal Circuit Court of Australia. The liquidator sought directions from the court to determine the appropriate procedure for approving his fees, as there had been no meeting of creditors. All creditors had been paid out, and they, along with the director and shareholder of the company, neither consented to nor opposed the orders sought.

The central legal issue was whether the court could approve the liquidator's fees without a creditors' meeting, given that all creditors and other relevant parties had been notified and did not object to the application. The court had to consider the relevant statutory and procedural frameworks, including sections 473 and 474 of the Corporations Act 2001 (Cth) and the Corporations Proceedings Rules 2010 (Cth).

The court determined that since all creditors and other relevant parties were content with the application and did not oppose the approval of the liquidator's fees, the court could proceed without a creditors' meeting. The court assessed the reasonableness of the fees claimed by the liquidator and found the amount to be $17,644.55 inclusive of GST. The court also noted that any non-compliance by the liquidator with certain procedural rules was excused due to the lack of objection from the creditors and other parties.

The court ordered that Peter Dinoris's remuneration as liquidator be set at $17,644.55 inclusive of GST, that the costs of the application be treated as costs in the winding up, and that any non-compliance with specific procedural rules be excused. The orders were delivered ex tempore on 14 July 2015.

Orders

Orders of the court

Delivered ex tempore on 14 July 2015:

The order of the court is that:

1. Pursuant to s 473(3) of the Corporations Act 2001 (Cth) the remuneration to which Peter Dinoris is entitled as liquidator of the respondents is $17,644.55 inclusive of GST.

2. The cost of and incidental to the application be costs in the winding up.

3. To the extent there has been non-compliance by the liquidator with r 9.4(2)(b) or r 9.4(3) of the Corporations Proceedings Rules that non-compliance be excused.

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 Perdives Pty Ltd [2015] QSC 230
PARTIES:	BODY CORPORATE FOR THE AURORA TOWER CTS 35222 (applicant) v PERDIVES PTY LTD ACN 135 738 868 AS TRUSTEE UNDER INSTRUMENT NO. 71242661 (respondent)
FILE NO/S:	3692 of 2015
DIVISION:	Trial
PROCEEDING:	Application
DELIVERED ON:	14 July 2015
DELIVERED AT:	Brisbane
HEARING DATE:	14 July 2015
JUDGE:	Bond J
ORDER:	Delivered ex tempore on 14 July 2015: The order of the court is that: *1. Pursuant to s 473(3) of the Corporations Act 2001* (Cth) the remuneration to which Peter Dinoris is entitled as liquidator of the respondents is $17,644.55 inclusive of GST. 2. The cost of and incidental to the application be costs in the winding up. 3. To the extent there has been non-compliance by the liquidator with r 9.4(2)(b) or r 9.4(3) of the Corporations Proceedings Rules that non-compliance be excused.**
CATCHWORDS:	CORPORATIONS – LIQUIDATORS – REMUNERATION – MEETING OF CREDITORS – where the liquidator sought directions as to proper procedure for approval of liquidator’s fees – where there was no meeting of creditors – where all creditors were paid out – where all creditors were given notice of the application and do not consent to or oppose the orders sought – where the director and shareholder of the company do not oppose or consent to the orders sought Corporations Act 2001 (Cth), s 473(3) Australian Securities and Investment Commission v Drury Management Pty Ltd (2005) 55 ACSR 425, cited Re Interchase Corporation Ltd (in provisional liquidation) (1993) 44 FLR 501; 117 ALR 267, considered Re Norfolk Island Airlines Pty Ltd (in liquidation) (1991) 9 ACLC 1024, cited Re WA Pines Pty Ltd (in liquidation) (1994) 12 ACLC 328, cited
COUNSEL:	C D Coulsen for the applicant No appearance for the respondent
SOLICITORS:	Holman Webb Lawyers for the applicant No appearance for the respondent