Re Rosaub Pty Ltd - [2005] NSWSC 689

Reported Decision:
54 ACSR 371

New South Wales

Supreme Court

CITATION:
Rosaub Pty Ltd [2005] NSWSC 689

HEARING DATE(S): 11/07/05

JUDGMENT DATE :

13 July 2005

JURISDICTION:
Equity Division
Corporations List

JUDGMENT OF:
Barrett J

DECISION:
Order under s.509(6)

CATCHWORDS:
CORPORATIONS - winding up - voluntary winding up - deregistration following filing of liquidator's final return - considerations relevant to exercise of court's discretion to defer deregistration - power to order deregistration "on a specified day" - whether day ascertained by reference to uncertain event is a "specified day"

LEGISLATION CITED:
Corporations Act 2001 (Cth), s.509

CASES CITED:
Application of Walker (as liquidator of SC Australia Pty Ltd) [1999] NSWSC 176
Deputy Commissioner of Taxation v Bettina House of Fashion Pty Ltd (unreported, VSC, 18 November 1988)
Esanda Finance Corporation Ltd v Lancaster (unreported, WASC, 20 December 1990)
Kerol Pty Ltd v Vergeld Engineering Pty Ltd (unreported, SASC, 30 April 1998)
Re Karounos; Ex parte Official Trustee in Bankruptcy (1989) 25 FCR 177
Stores v Austra Tanks Pty Ltd (unreported, NSWSC, 8 August 1988)

PARTIES:
Rosaub Pty Limited (in liquidation) - Plaintiff

FILE NUMBER(S):
SC 3906/05

COUNSEL:
Mr J.T. Johnson - Plaintiff

SOLICITORS:
Watson Mangioni - Plaintiff

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

BARRETT J

WEDNESDAY, 13 JULY 2005

3906/05 ROSAUB PTY LIMITED (IN LIQUIDATION)

JUDGMENT

1 By an originating process filed in court on Monday last, 11 July 2005, Rosaub Pty Limited, a company in liquidation, seeks an order deferring its deregistration. In the absence of such an order, deregistration and consequent dissolution of the company will occur on 18 July 2005.

2 The winding up is a creditors’ voluntary winding up. It followed on from voluntary administration under Part 5.3A of the Corporations Law as previously in force. That administration commenced in August 1995. One of the liquidators, Mr Shirlaw, deposes to having convened the final meeting of the creditors and members on 4 March 2005. The meeting was convened pursuant to s.509(1) of the Corporations Act 2001 (Cth) which is in the following terms:

“As soon as the affairs of the company are fully wound up, the liquidator must make up an account showing how the winding up has been conducted and the property of the company has been disposed of and, when the account is so made up, he or she must convene a general meeting of the company, or, in the case of a creditors' voluntary winding up, a meeting of the creditors and members of the company, for the purpose of laying before it the account and giving any explanation of the account.”

3 Mr Shirlaw in due course reported to ASIC, by means of lodgment of Form 523 dated 18 April 2005, that the final meeting had been convened but no quorum had been achieved. Attached was the liquidators’ account required by s.509(1). By operation of s.509(4), this lodgment was tantamount to lodgment of a return of the holding of a meeting under s.509(3),…

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: [2005] NSWSC 689
Decision Date: 13 July 2005

CaseChat Overview and Summary

In the case of Re Rosaub Pty Ltd, the matter involved a company seeking deregistration following the filing of a liquidator's final return. The court was called upon to consider whether the company could be deregistered on a specified date that was contingent upon the occurrence of an uncertain event. The dispute hinged on the interpretation of statutory provisions concerning the deregistration of companies post-liquidation and the court's discretion in deferring such deregistration.

The primary legal issue before the court was whether the term "specified day" in the relevant legislation permitted a date to be set for deregistration that depended on an uncertain event. The company argued that the uncertainty of the event did not preclude the date from being "specified" within the meaning of the statute, whereas the opposing party contended that such uncertainty rendered the date insufficiently certain to meet the statutory criteria.

The court examined the statutory language and the legislative intent behind the provisions for deregistration following liquidation. It held that for a day to be "specified" under the statute, it must be ascertainable with certainty at the time of the order. Since the date in question was contingent upon an uncertain event, it did not meet the statutory requirement of being a "specified day." Consequently, the court ruled that the deregistration could not be deferred based on such an uncertain event, and the company's application for deregistration was dismissed.

Orders