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 the company have been paid 100 cents in the dollar and in that sense are no longer creditors.

e)The persons who were creditors have indicated by evidence that they neither consent nor oppose to the liquidator’s current application. 

f)The director and shareholder of the company is in a similar position:  she does not either oppose or consent to the application. 

g)Notice has been given to ASIC but no reply has been forthcoming. 

h)No attempt has been made by the liquidator to convene a meeting of the “creditors”. 

The question arises whether I have jurisdiction under s 473(3)(b). That question arises because, although it is true as a matter of fact that no resolution has been passed, there is authority to suggest that, at least setting to one side circumstances of waiver, the requirement for resolution of creditors cannot be overlooked or not complied with by a liquidator simply because the course is not convenient or practical.

The authority concerned is a decision of Drummond J in Re Interchase Corporation Ltd (in provisional liquidation) (1993) 44 FLR 501; 117 ALR 267. His Honour’s decision has been subsequently followed in Re WA Pines Pty Ltd (in liquidation) (1994) 12 ACLC 328 and Australian Securities and Investment Commission v Drury Management Pty Ltd (2005) 55 ACSR 425.

It suffices, relevantly, to quote from the latter decision.  Jones J was dealing with an argument that special circumstances in the case before him permitted a Court to make an order pursuant to s 473 without the need for compliance with the requirement of seeking a resolution of creditors.  His Honour referred to an earlier decision of Master Horton in Re Norfolk Island Airlines Pty Ltd (in liquidation) (1991) 9 ACLC 1024 and proceeded to note as follows (at [9]):

This approach was not accepted by Drummond J in Re Interchase Corp Limited (in prov liquidation) where he distinguished the two cases relied upon in Norfolk Island Airlines.  Drummond J expressed the following opinion:

In my opinion, s 473(3) operates as follows: subject to question of waiver, the remuneration of a liquidator must be determined firstly, by agreement between the liquidator and the committee of inspection, or, secondly, if agreement cannot be reached or there is no such committee, by resolution passed at a meeting of creditors by the prescribed majority. It is only if no such resolution is passed at a properly convened meeting of creditors that the Court is empowered to fix the liquidator’s remuneration.

It is therefore essential, before the Court can have any power to act under s 473(3)(b)(ii), that the liquidator has first acted in accordance with s 473(4) to convene a meeting of creditors for the purpose of fixing his remuneration. If no creditor attends either in person or by proxy, or if a meeting actually takes place but the prescribed resolution is not passed, the precondition to the Court being empowered to act will be satisfied. But unless that occurs the Court, in my opinion, has no power to fix the liquidator’s remuneration. The apparent deliberateness of the amendments made to the provisions that replaced s 232(3) in the 1981 Uniform Codes and in the Corporations Law, in my opinion admits of no other conclusion. 

It seems to me I ought to follow the approach taken by Drummond J in Re Interchase.  However, I note that his Honour was prepared, and obviously Jones J also was prepared, to admit of the possibility that waiver was an exception. 

It seems to me that it is appropriate also to regard as an exception to the proposition circumstances in which it has been demonstrated, as has happened in this case, that there are in fact no creditors who could be convened to pass the meeting. That also seems to me to be consistent with the policy to which Drummond J adverted. In this regard I refer to his Honour’s observations at 117 ALR 267, 273 regarding the appropriateness of giving s 473(3) the construction he adverted to because it was consistent with the underlying policy that in all matters relating to winding up, the persons who are financially interested in the outcome of a liquidation are entitled to be consulted whenever it is practically feasible to so do. In this case, all those creditors are no longer creditors because they have been paid.

For these reasons it does seem to me that I should regard the precondition to my exercise of power under s 473(3) as having been satisfied.

The question arises as to whether it is appropriate to fix the remuneration in the amount sought by the liquidator.  In light of the evidence to which I have adverted that the director and shareholder of the company neither consents nor opposes such an order, the evidence led on behalf of the liquidator has satisfied me of the appropriateness of fixing his remuneration in the figure for which he contends.

I make the order as per draft, initialled by me and placed with the papers. 

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