Re Sakr Nominees Pty Ltd - [2016] NSWSC 709

Supreme Court

New South Wales

Medium Neutral Citation: In the matter of Sakr Nominees Pty Ltd [2016] NSWSC 709
Hearing dates: Monday, 22 February 2016
Date of orders: 22 February 2016
Decision date: 22 February 2016
Jurisdiction: Equity - Corporations List
Before: Brereton J
Decision:
(1) Pursuant to Corporations Act, s 488(2), the plaintiff has special leave to distribute the surplus of assets in the liquidation of Sakr Nominees Pty Limited, in accordance with the document initialled by me, dated this day, and placed with the papers.
(2) Pursuant to Corporations Act, s 473(3)(b)(ii), the liquidator's remuneration for the period 3 November 2014 to finalisation of the liquidation inclusive, is determined to be $20,000, including GST.
(3) Pursuant to Corporations Act, s 479(3), the liquidator would be justified in paying or retaining the sum of $66,939.87, in respect of legal costs of Colin Biggers & Paisley.
(4) The balance of the proceedings is adjourned to 11 April 2016 at 9.45am in the Corporations' Judge Motions List for consideration of the application for a release and deregistration.

Catchwords:
CORPORATIONS – winding up – application for special leave to distribute surplus
CORPORATIONS – winding up – liquidators – remuneration – where creditors paid so not possible for convening creditors’ meeting to approve further remuneration – (CTH) Corporations Act 2001, s 473(1) factors – small family company – where notice of application was given to contributories – where additional work not anticipated at time of creditors’ approval – ad valorem remuneration
Legislation Cited: (CTH) Corporations Act 2001, s 473(3)(b)(ii), s 479(3), s. 488(2)
(NSW) Supreme Court (Corporations) Rules 1999, r 7.9
Cases Cited: In the matter of AAA Financial Intelligence Ltd (in liquidation) ACN 093 616 445 (No 2) [2014] NSWSC 1270
In the matter of Gramarkerr Pty Limited (No 2) [2014] NSWSC 1405
In the matter of Hellion Protection Pty Ltd (In Liquidation) [2014] NSWSC 1299
Mirror Group Newspapers plc v Maxwell (No 2) [1998] 1 BCLC 638
Re Anderson Group Pty Ltd [2002] NSWSC 764; (2002) 20 ACLC 1607
Re Cardiff Coal Company [2014] NSWSC 1590
Re Carton Ltd (1923) 39 TLR 194
Re Stockford Ltd [2004] FCA 1682; (2004) 52 ACSR 279
Re Wm Rose & Co Ltd (1897) 3 ALR (CN) 65
Universal Distributing Co Ltd (in liq), Re [1933] HCA 2; (1933) 48 CLR 171
Venetian Nominees Pty Ltd v Conlan (1998) 20 WAR 96
Category: Principal judgment
Parties: Cliff Sanderson as liquidator of Sakr Nominees Pty Limited (CAN 090 735 587)(plaintiff)
Representation:
Counsel:
H Collins (plaintiff)
Solicitors:
Colin Biggers & Paisley (plaintiff)

File Number(s): 2016/40702

Judgment (EX Tempore)

HIS HONOUR: On 3 September 2012 in proceedings 2012/229560, the company Sakr Nominees Pty Ltd was wound up on the application of Sydney Water Corporation, and the present plaintiff Clifford Sanderson, an official liquidator, was appointed its liquidator. By originating process filed in the proceedings 2015/361976 on 9 December 2015, Mr Sanderson, as liquidator, sought special leave pursuant to (CTH) Corporations Act 2001, s. 488(2), to…

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: [2016] NSWSC 709
Decision Date: 22 February 2016

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Re Sakr Nominees Pty Ltd involved an application for special leave to distribute a surplus following the winding up of a company. The liquidators of the company sought to distribute the surplus to the contributories, but faced opposition from the creditors who had already been paid in full. The primary issue before the Court was whether the liquidators were entitled to additional remuneration beyond what had been approved by the creditors, and if so, under what conditions this could be granted.

The legal issues centred on the interpretation of section 473(1) of the Corporations Act 2001, which mandates that the Court consider various factors in determining the remuneration of liquidators. The Court had to assess whether the additional work undertaken by the liquidators constituted unforeseen circumstances, and if so, whether the contributories could be appropriately informed and whether it was just and equitable to allow the additional remuneration. The case also involved the unique circumstances of a small family company, which added a layer of complexity to the assessment of the liquidators' role and the fairness of their remuneration.

The Court found that the additional work performed by the liquidators was not anticipated at the time of the creditors' meeting, and that the contributories had been duly notified of the application for additional remuneration. Considering the factors outlined in section 473(1) of the Corporations Act 2001, the Court determined that it was just and equitable to approve the additional remuneration. Consequently, the liquidators were permitted to distribute the surplus to the contributories, subject to the conditions set by the Court.

The Court ordered that the surplus be distributed to the contributories, following the approval of the liquidators' additional remuneration. The specific terms of the remuneration and the distribution of the surplus were to be detailed in a subsequent order, ensuring compliance with the provisions of the Corporations Act 2001.

Orders