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Re Thomas

Re Thomas

Case [2013] NSWSC 2016 20 December 2013

Jurisdiction

Winding Up & Liquidation

Limitation Periods

Interlocutory Orders

Corporate Law & Governance

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Supreme Court

New South Wales

Medium Neutral Citation: In the matter of Gavin Frederick Critchon Thomas and others and the Corporations Act 2001 [2013] NSWSC 2016
Hearing dates: 20 December 2013
Decision date: 20 December 2013
Jurisdiction: Equity Division - Corporations List
Before: Black J
Decision:
Order for appointment of a liquidator upon resignation of previous liquidator. Order for remaining jointly appointed liquidator and receiver of relevant entities to continue as sole liquidator or receiver. Notice of application to be provided to the Australian Securities and Investments Commission. Extension of time for lodgement of liquidator's accounts and statements in respect of relevant companies previously administered by jointly appointed liquidators.

Catchwords: CORPORATIONS - winding up - liquidators - orders sought for appointment of liquidators and receivers upon the resignation of an appointed liquidator and receiver - whether Court has jurisdiction to make an order to fill the vacancies arising upon the resignation of a liquidator or receiver - whether where two or more persons appointed as liquidator, the functions or powers of the liquidators may be exercised by one alone - whether the period of lodgement of the liquidator's accounts and statements should be extended.
Legislation Cited: - Corporations Act 2001 (Cth) ss 473, 473(1), 473(7), 479(3), 502, 530, 539, 1322, 1322(4)(d)
- Supreme Court (Corporations) Rules 1999 (NSW) r 7.1
- Corporations Amendment (Insolvency) Act 2007 (Cth)
Cases Cited: - Condon v Watson [2009] FCA 11; (2009) 174 FCR 314; (2009) 69 ACSR 350
- Re Free [2010] NSWSC 1079
- Re McGrath [2005] NSWSC 506; (2005) 54 ACSR 55
- Re Vouris [2004] NSWSC 384; (2004) 49 ACSR 543
- Re Wily [2003] NSWSC 1260; (2003) 49 ACSR 94
Category: Interlocutory applications
Parties: Gavin Frederick Critchon Thomas (First Plaintiff)
David Michael Morgan (Second Plaintiff)
Mark Damien Roufeil (Third Plaintiff)
Representation: Counsel:
S Brown (Solicitor - Plaintiffs)
Solicitors:
Etienne Lawyers (Plaintiffs)

File Number(s): 2013/366530

Judgment - ex tempore

By originating process filed on 5 December 2013, the first plaintiff, Mr Gavin Thomas, seeks orders under s 473(7) of the Corporations Act 2001 (Cth) in respect of his retirement from practice in respect of certain appointments as liquidator by the Court, and an order that those appointments be filled by the second plaintiff, Mr David Morgan in some cases and the third plaintiff, Mr Mark Roufeil, in others. Mr Thomas initially also sought orders under s 502 of the Corporations Act but it is now apparent that he was appointed as liquidator of the relevant companies by the Court, and that those companies are not in a creditors voluntary winding up, so those orders are appropriately sought under s 473 of the Corporations Act and I will approach the matter on that basis. Mr Thomas also sought orders under s 1322(4)(d) of the Corporations Act that the period for lodgement of the liquidator's accounts and statements under s 539 of the Corporations Act be extended in respect of each of the companies so that Mr Thomas…

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 Thomas

Details

AGLC: In the matter of Gavin Frederick Critchon Thomas and others and the Corporations Act 2001 [2013] NSWSC 2016
Case: [2013] NSWSC 2016
Decision Date: 20 December 2013

CaseChat Overview and Summary

The matter of Re Thomas involved a winding up petition where the issue was the resignation of an appointed liquidator and receiver. The court was asked to consider whether it had the jurisdiction to make an order to fill the vacancies left by the resignation of the liquidator and receiver, as well as to determine if the functions or powers of liquidators, when two or more persons are appointed, may be exercised by one alone. Additionally, the court was asked to consider whether the period for the lodgement of the liquidator's accounts and statements should be extended.

The central legal issues revolved around the court's jurisdiction to appoint new liquidators and receivers in the event of resignation, the potential for a single liquidator to exercise the powers and functions of multiple liquidators, and the appropriate extension period for the submission of the liquidator's accounts and statements. The court examined relevant statutory provisions and case law to determine the appropriate course of action.

The court found that it had the jurisdiction to make an order to fill the vacancies arising from the resignation of the liquidator and receiver. It concluded that when two or more persons are appointed as liquidators, the functions or powers of the liquidators can indeed be exercised by one alone. The court also considered the extension of the period for the lodgement of the liquidator's accounts and statements, ultimately deciding on a suitable extension based on the circumstances presented.

The court made orders appointing new liquidators and receivers, confirmed that the functions or powers of liquidators can be exercised by one alone when multiple liquidators are appointed, and extended the period for the lodgement of the liquidator's accounts and statements. The court's decision provided clarity on the handling of liquidator and receiver resignations and the management of related duties and deadlines.

Orders