Re Thoroughbred Consultants Pty Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST

S ECI 2021 01443

IN THE MATTER of THE THOROUGHBRED CONSULTANTS PTY LTD (IN LIQUIDATION) (ACN 118 130 251)

BETWEEN:

JACQUELINE ANNE BROWNE-KERR	Appellant
v
ROBERT WOODS (IN HIS CAPACITY AS LIQUIDATOR OF THE THOROUGHBRED CONSULTANTS PTY LTD (ACN 118 130 251))	Respondent

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JUDGE:	M Osborne J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 August 2021
DATE OF JUDGMENT:	1 October 2021
CASE MAY BE CITED AS:	Re The Thoroughbred Consultants Pty Ltd
MEDIUM NEUTRAL CITATION:	[2021] VSC 627

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CORPORATIONS – Application under s 482 of the Corporations Act 2001 (Cth) to terminate winding up of a company – Whether evidentiary onus to prove solvency imposed on applicant for termination of winding up of a company where winding up is on grounds other than insolvency - Whether winding up complied with Corporations Act 2001 (Cth) procedure – Whether s 272(1) of the Duties Act 2000 (Vic) precludes plaintiff proving transfer of shares – Whether contravention of s 270(1)(b) of the Duties Act 2000 (Vic) disentitles plaintiff from proving transfer of shares – Whether s 1322 of the Corporations Act 2001 (Cth) overrides irregularities in winding up – Nelson v Nelson (1995) 184 CLR 538; Li v So [2019] VSC 515; Von Risefer v Mainfreight International Pty Ltd (2009) 25 VR 366; Re Spartan Pastoral Company Pty Ltd (in liq) [2020] NSWSC 1218; Double Bay Newspapers Pty Ltd v The Fitness Lounge Pty Ltd (2006) 57 ACSR 131; Hughes, Vah Newco No 2 Pty Ltd (in liq) (No 2) [2020] FCA 1436; Milicevic v Capital Scaffolding Pty Ltd (2007) 65 ACSR 71; Re Buddies Investments Pty Ltd (1997) 2 Qd R 453; Nationwide News Pty Ltd v Almona Pty Ltd (1988) 6 ACLC 84 considered.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms H Mastos, solicitor	Strategic Law Partners
For the Respondent	Mr L Currie of counsel	Thomson Geer

HIS HONOUR:

Introduction

On 13 February 2018, a sequestration order was made against Craig Browne-Kerr (‘Mr Browne-Kerr’) on the petition of the Deputy Commissioner of Taxation. Daniel Juratowitch (a registered liquidator and registered trustee) was appointed as trustee in bankruptcy (‘the Trustee in Bankruptcy’).

In the understandable belief[1] that Mr Browne-Kerr was the sole shareholder of The Thoroughbred Consultants Pty Ltd (‘TTC’), the Trustee in Bankruptcy believed that the entirety of the shares in TTC had vested in him pursuant to s 58(1) of the Bankruptcy Act 1966 (Cth) (‘the Bankruptcy Act’).
[1]A company search of TTC obtained by the Trustee in Bankruptcy on 13 February 2018 showed that Mr Browne-Kerr was the sole shareholder and director of TCC. It also showed that TCC had been deregistered on 26 June 2016. A further company search obtained by the Trustee in Bankruptcy on 20 March 2018 showed the same information but that the company had been re-registered.

On 13 June 2018, the Trustee in Bankruptcy, as the purported sole shareholder in TTC, passed both a special resolution winding up TTC and an ordinary resolution appointing Robert Woods as liquidator (‘the Liquidator’). The resolutions signed by the Trustee in Bankruptcy reference ss 248A and 248B of the Corporations Act 2001 (Cth) (‘the Corporations Act’), which relate to resolutions of directors. No other sections of the Corporations Act are expressly invoked in the text of the resolution or the heading of the document which records the resolution. Nevertheless, it seems clear enough that the Trustee in Bankruptcy purported to invoke s 491 of the Corporations Act, which section provides that a company may be wound up voluntarily by a special resolution of members.

These were not the only resolutions of TTC purportedly passed that day. The Trustee in Bankruptcy also passed an ordinary resolution in reliance on s 249B of the Corporations Act, by which he purported to remove the plaintiff, Jacqueline Browne-Kerr (‘Ms Browne-Kerr’), as a director of TTC with immediate effect.

Relevantly, the Trustee in Bankruptcy had undertaken a third company search on 24 May 2018, prior to the passing of the resolutions, which showed that Ms Browne-Kerr had been appointed a director (and the secretary) of TTC on 1 February 2018.[2]
[2]From the company search obtained on 13 February 2018, it appears that TTC was not registered on 1 February 2018.

It is not disputed that notice of the meeting(s) held on 13 June 2018 was not given to either Mr Browne-Kerr or Ms Browne-Kerr. Section 249J(1) of the Corporations Act provides that ‘written notice of a meeting of a company’s members must be given individually to each member entitled to vote at the meeting and to each director’ (emphasis added). Ms Browne-Kerr submits that she should have been given notice of the meeting. Notwithstanding the Trustee in Bankruptcy’s removal of Ms Browne-Kerr as director by resolution passed that day, and hence his awareness of Ms Browne-Kerr’s directorship of TTC, there is no explanation as to why Ms Browne-Kerr was not given notice of the meeting.

TTC is the owner as tenant in common of a half-share of a property located at 124 Blackjack Road, Harcourt, Victoria (‘the Property’). The sole business of TTC is its ownership of the Property. Mr and Mrs Browne-Kerr, along with their four children, have lived at the Property since 2015.

The owner of the remaining half share is Stubbs Investments Pty Ltd (‘Stubbs Investments’), the sole director of which is Greg Stubbs (‘Mr Stubbs’), who, according to Ms Browne-Kerr, is a close friend of Mr Browne-Kerr. The Property was purchased by Stubbs Investments and TTC for $250,000 in 2009.[3] Mr Stubbs, in one capacity or another,[4] advanced the sum of at most $165,000 to TTC to assist TTC with the purchase of its half share and associated acquisition costs (‘the Stubbs Loan’). The Stubbs Loan is repayable on demand.
[3]Ms Browne Kerr deposes that the total amount required to complete settlement was $261,623.87; comprising $227,900.87 contributed by Stubbs Investment and $33,723 contributed by Mr Browne-Kerr. In fact it appears more accurate to state that Mr Browne-Kerr contributed half of the purchase moneys, funded by a loan made by Mr Stubbs and his wife as trustees of the Stubbs Executive Superannuation Fund.
[4]The details of the loan, including of the principal and the lender, are the subject of conflicting accounts on the evidence. Ms Browne-Kerr deposes that Stubbs Investment Pty Ltd advanced $165,000 to TTC to assist with the purchase of the Property; she states that she cannot find the loan agreement and provides no details as to the interest rate owing. By contrast, Mr Stubbs has deposed that he and his wife in their capacity as trustees of the Stubbs Executive Superannuation Fund lent $95,000 to TTC to assist with the purchase of the Property, with an interest rate of 10% p/a calculated monthly; Mr Stubbs exhibited a signed loan agreement in these terms. Regardless of the precise details of the loan, it is not disputed that TTC owes the Stubbs Executive Superannuation Fund an amount of $153,730.50. See paragraphs [20(i)(iii)] and [97] below.

On 17 September 2019, TTC issued proceedings in the County Court of Victoria against Mr Browne-Kerr and Ms Browne-Kerr for trespass, seeking orders for possession of the Property (‘the County Court Proceedings’). TTC obtained default judgment in the County Court Proceedings against Mr Browne-Kerr on 31 October 2019. The proceeding was defended by Ms Browne-Kerr, but by reason of her failure to comply with a self-executing discovery order made 24 June 2020, judgment was also obtained against her on 3 July 2020. On 7 July 2020, a warrant of possession for the Property was issued, but its execution was delayed due to, among other reasons, restrictions associated with the COVID-19 pandemic. Ultimately, the execution of the warrant of possession was scheduled to take place on 16 April 2021.

On 29 April 2021, nearly three years after the appointment of the Liquidator, Ms Browne-Kerr made application to terminate the winding up of TTC pursuant to s 482 of the Corporations Act. Clearly, the application was prompted by the impending execution of the warrant for possession of the Property.

The application was opposed by the Liquidator and proceeded before the Judicial Registrar on 31 May 2021. The Judicial Registrar dismissed the application.[5]
[5][2021] VSC 326.

Ms Browne-Kerr now brings this appeal pursuant to rule 84.05 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’). The appeal proceeds by way of a hearing de novo.[6]
[6]Rule 84.05 (4).

Ordinarily, an application to terminate a winding up which is brought near on three years after the appointment of a liquidator would have scant prospects of success. Nonetheless, there are some unusual features present in this case which make its resolution less clear.

The evidence adduced on the application
Ms Browne-Kerr

Ms Browne-Kerr relied upon two affidavits, one sworn 28 April 2021 and the other 31 May 2021.

The Liquidator relied upon an affidavit of the Trustee in Bankruptcy sworn 21 May 2021, an affidavit of the Liquidator sworn 12 May 2021, and an affidavit of the solicitor for the Liquidator sworn 31 May 2021.

There was no cross examination of the deponents, either before the Judicial Registrar or before me.

In Ms Browne-Kerr’s first affidavit she deposes among other things to the following:

(a) That at some time in 2015, Mr Browne-Kerr transferred the entire shareholding in TTC to her and that she signed and witnessed all documents necessary to effect that transfer.

(b) That the share transfer took place after she had asked Mr Browne-Kerr to make her an owner of the Property, in recognition of maintenance and improvements on the Property that she had personally paid for and which were derived from income she personally earned, as well as proceeds of sale of an on-site van in Echuca of $90,000. She states that these improvements included a renovation of the Property that involved replacement of fences, repair of outbuildings, installation of plumbing, and the building of additional rooms and a granny flat.

(c) That, since 2017 (after the purported share transfer), she has personally paid some $150,000 to maintain and improve the Property.

(d) In support of the share transfer, Ms Browne-Kerr exhibits:

(i) a ‘Memorandum of Resolutions of Director(s) of The Thoroughbred Consultants Pty Ltd’, recording a resolution to approve a transfer of three ordinary shares to Ms Browne-Kerr, signed by Mr Browne-Kerr as director and dated 19 March 2015;

(ii) a ‘Transfer of Shares’ document bearing TTC’s name and wherein Mr Browne-Kerr transfers to Ms Browne-Kerr three ordinary shares in TTC in consideration of $1.00 per share, signed by Mr Browne-Kerr and Ms Browne-Kerr both as signatories and witnesses, and dated 19 March 2015;

(iii) a ‘Share Certificate’, recording Ms Browne-Kerr as the holder of three ordinary shares in TTC, given under the company seal of TTC and dated 19 March 2915;

(iv) a ‘Register of Members’, bearing TTC’s name and recording Ms Browne-Kerr as the holder of three ordinary shares in TTC following a transfer dated 19 March 2015; the document also records Mr Browne-Kerr as a previous shareholder, having apparently subscribed for a shareholding in TTC on 26 February 2009;[7]
[7]The ASIC records show no change to the register of shareholders of TTC on 26 February 2009; however, there is a change to the register of shareholders of TTC on 25 March 2019.

(collectively, ‘the share transfer documents’).

(e) That Mr Browne-Kerr took the share transfer documents away and Ms Browne-Kerr assumed that her husband had filed them somewhere for safe keeping.

(f) That she was unaware that the share transfer documents had not been lodged with the Australian Securities and Investment Commission (‘ASIC’), until she received communications from the Liquidator in August 2018.

In Ms Browne-Kerr’s second affidavit she deposes among other things to the following:

(a) That in late January 2018 she consented to act as a director of TTC and signed a consent to act on 1 February 2018;[8]
[8]Ms Browne Kerr exhibited a signed consent to act and minutes of meeting effecting her appointment along with a register of office holders.

(b) The consent to act and associated documents had been prepared by TTC’s accountant Mr Tony Long (‘Mr Long’), who had previously told Ms Browne-Kerr that he had assisted with the share transfer documents and that Mr Browne-Kerr had deposited those documents at Mr Long’s office; and

(c) That Mr Long informed her in late January 2018 that TTC had been deregistered due to the non-payment of ASIC fees, that Mr Long was in the process of re-registering TTC at Mr Browne-Kerr’s request, and that Ms Browne-Kerr’s directorship would be effective from the date of re-registration.

The Trustee in Bankruptcy

In the Trustee in Bankruptcy’s affidavit he deposes among other things to the following:

(a) On his appointment on 13 February 2018, he immediately conducted searches of the ASIC registry which showed that Mr Browne-Kerr was a director, secretary, and the sole shareholder of TTC; and that TTC had been de-registered on 26 June 2016. The searches also showed the address of Anthony Long & Associates as the registered office of TTC.[9]
[9]The address of Anthony Long & Associates was 51A Palmerston Street, Melton.

(b) Between 14 February 2018 and 19 February 2018, he sent letters to Anthony Long & Associates as well as Mr Browne-Kerr seeking among other things further details of TTC’s books and records and Mr Browne-Kerr’s affairs. He received no response.

(c) On 20 March 2018, he conducted another search of the ASIC registry which revealed that TTC had been re-registered. The address of Anthony Long & Associates remained as TTC’s registered office. The search also showed that Mr Browne-Kerr remained as TTC’s sole director, secretary and shareholder. The search also revealed that a change to company details form dated 13 March 2018 and signed by Mr Browne-Kerr appeared to have been lodged by firm XO Accounting and not yet processed. The form effected a change of TTC’s registered address to 70 Reservoir Road, Harcourt.

(d) On 22 March 2018, he contacted XO Accounting, who informed him that they did not act for TTC or Mr Browne-Kerr and that Mr Long, who previously worked at XO Accounting, was the accountant for TTC and Mr Browne-Kerr.

(e) Between 6 April 2018 and 30 April 2018, the Trustee in Bankruptcy made two attempts to contact Mr Stubbs at the latter’s firm, Ascot Partners. He received a response from Ascot Partners on 15 May 2018 advising him that they would be unable to respond to his letters until the following week. The Trustee in Bankruptcy does not appear to have received any further communication from Ascot Partners.

(f) On 24 May 2018, the Trustee in Bankruptcy conducted another search of the ASIC registry which revealed that:

(v) Ms Browne-Kerr had been appointed as a director and secretary of TTC, apparently on 1 February 2018 (noting that TTC having been re-registered no earlier than 13 February 2018);

(vi) TTC’s registered office had been changed to 70 Reservoir Road, Harcourt, consistently with the change to company details form revealed by the 20 March 2018 search; and

(vii) Mr Browne-Kerr remained a director and secretary of TTC and its sole shareholder.

(g) On 24 May 2018, Mr Juratowitch conducted another title search for the Property. The updated title search recorded that Anthony Long & Associates had lodged a caveat on 18 May 2018, in respect of a charge contained in an agreement between TTC and Anthony Long & Associates dated 22 November 2013.

(h) On 13 June 2018, as mentioned above, the Trustee in Bankruptcy as the purported sole shareholder in TTC passed both a special resolution that TTC be wound up and the Liquidator be appointed, and an ordinary resolution removing Ms Browne-Kerr as a director of TTC effective immediately.

(i) As of 21 May 2021, the Trustee in Bankruptcy has still not received any substantive responses to its queries from Mr Browne-Kerr, TTC, Mr Stubbs, or Anthony Long & Associates; nor has Mr Browne-Kerr filed a statement of affairs or bankruptcy form in compliance with his obligations under s 54 of the Bankruptcy Act.

The Liquidator[10]

[10]References to the Liquidator refer to both the affidavit evidence of both the Liquidator and his solicitor. The solicitor’s affidavit provides some brief matters of procedural history.

In the Liquidator’s affidavit he deposes to the following:

(a) On 12 November 2018, Mr Woods received a letter from Ms Browne-Kerr’s solicitors, Strategic Law Partners, alleging that his appointment as Liquidator was invalid by reason of the sole shareholding in TTC having been transferred by Mr Browne-Kerr to Ms Browne-Kerr on 19 March 2015. The letter raised at that time some of the arguments advanced by Ms Browne-Kerr in the present proceeding and enclosed copies of the share transfer documents.

(b) On 15 November 2018, Mr Woods’ solicitors, Thomson Geer, wrote to Strategic Law Partners, contesting the contents of their letter of 12 November 2018. Thomson Geer noted that neither Ms Browne-Kerr nor Mr Browne-Kerr had provided TTC’s books and records ‘despite repeated requests’. Again, some of the arguments raised by Thomson Geer are advanced by the Liquidator in the present proceeding.

(c) On 6 March 2019, Thomson Geer (the solicitors for the Liquidator and TTC) wrote to Ms Browne-Kerr and Mr Browne-Kerr:

(viii) noting TTC as a registered proprietor of the Property; and

(ix) purporting to terminate any licence that Ms Browne-Kerr and Mr Browne-Kerr might have to occupy the Property and as a consequence seeking that they deliver up possession of the Property.

(d) On 29 March 2019, Thomson Geer sent another letter to Ms Browne-Kerr and Mr Browne-Kerr, noting there had been no response to the 6 March 2019 letter and foreshadowing legal proceedings.

(e) On 17 September 2019 and as mentioned above, TTC issued the County Court Proceedings and on 31 October 2019, judgment was entered in default against Mr Browne-Kerr and later, on 3 July 2020, against Ms Browne-Kerr.

(f) On 7 July 2020 and as mentioned above, a warrant of possession for the Property was issued in favour of TTC but its execution was delayed to 16 April 2021.

(g) On 14 April 2021, two days before the deadline of the final notice to vacate the Property, Mr Browne-Kerr issued an application to set aside the default judgment entered against him on 31 October 2019. Her Honour Justice Ryan made orders fixing the hearing of Mr Browne-Kerr’s summons on 13 May 2021, and staying execution of the warrant of possession for the Property until that date.

(h) That the known creditors of TTC as at 12 May 2021 comprise:

(i) the Australia and New Zealand Banking Group (‘the ANZ Bank’) to $69,397.36;

(ii) Greg and Lisa Stubbs as Trustee for the Stubbs Executive Superannuation Fund (‘Stubbs Superannuation’) to $153,730.50; and

(x) The State Revenue Office to $962.28;

to a total of $224,090.14.

(i) That Mr Stubbs swore an affidavit in the County Court Proceedings (‘the Stubbs Affidavit’) in which Mr Stubbs states that:

(i) the Property was acquired on or around 29 April 2009 with the amount paid at settlement being $261,623.87, of which Stubbs Investments contributed $227,900.87 and TTC $33,723;

(ii) it was decided that notwithstanding the unequal contributions, the Property would be held by Stubbs Investments and TTC as tenants in common in equal shares;

(iii) the additional funds contributed by Stubbs Investments were the subject of a signed loan agreement between Greg and Lisa Stubbs as lender and TTC as borrower, guaranteed by Mr and Mrs Browne-Kerr for the principal sum of $95,000 with interest at 10% per annum with the date of repayment being 23 April 2014 and which further provided that the principal and all interest accrued would be immediately due and payable on default;[11]

[11]See paragraph [8] above.

(xi) no payment has been made under the loan agreement;

(xii) from around March 2016, Mr and Mrs Browne-Kerr have lived at the Property but all rates and land tax payments have been made by Stubbs Investments and Mr and Mrs Browne-Kerr have not paid any rent or other payment by way of occupation;

(xiii) he had held discussions with Mr Browne-Kerr in or around March 2016 about TTC purchasing Stubbs Investments’ interest in the Property for $300,000;

(xiv) in or around February 2018, he had a discussion with Mr Long in the presence of Mr Browne-Kerr about the proposed sale to Mr Long of Stubbs Investments’ interest in the Property for $350,000;

(xv) he has never entered into any agreement with Ms Browne-Kerr, and effectively all his dealings in relation to the Property were with Mr Browne-Kerr.

The present proceedings appear to have overtaken the County Court Proceedings.

The present proceedings

Following the filing of the appeal against the Judicial Registrar’s orders dismissing the application to terminate the winding up, the matter came before me for directions on 16 July 2021. By orders made at that directions hearing, Ms Browne-Kerr was required to file and serve affidavit material by 30 July 2021 and written submissions by 6 August 2021. At the hearing, Ms Browne-Kerr anticipated that the further affidavit material would address the solvency or otherwise of TTC.

On 3 August 2021, at a further directions hearing, Ms Browne-Kerr sought a short extension to the timetable to finalise the additional affidavit material; Ms Browne-Kerr was ultimately required to put her affidavit material on by 5 August 2021.

Ms Browne-Kerr did not file and serve any affidavit material or any written submissions prior to the hearing.

Issues in the proceeding - general

As mentioned above, this is an application brought under s 482 of the Corporations Act. Relevantly, s 482(1) provides:

Power to stay or terminate winding up
(1)At any time during the winding up of a company, the Court may, on application, make an order staying the winding up either indefinitely or for a limited time or terminating the winding up on a day specified in the order.

(1A) An application may be made by:
(a)in any case – the liquidator, or a creditor or contributory, of the company;

…

Ms Browne-Kerr contends that the winding up of TTC should be terminated. The essence of her claim is that the voluntary liquidation of TTC should not have occurred because she, and not Mr Browne-Kerr (nor his Trustee in Bankruptcy), was its sole shareholder. It is not disputed that Ms Browne-Kerr was not given notice of the meeting, whether as a director or member.

By way of response, the Liquidator contends that the winding up should continue. He submits that:

(a) The Court cannot find Ms Browne-Kerr to be the sole shareholder of TTC, because:

(xvi) the share transfer documents are inadmissible in evidence pursuant to s 272(1) of the Duties Act 2000 (Vic) (‘the Duties Act’), as they purport to effect a dutiable transaction but have not been stamped as required by that Act; and

(xvii) the purported share transfer did not meet the requirements for a valid transfer of shares in a land-owning entity under s 270(1)(b) of the Duties Act.

(b) Therefore, as the Court cannot find Ms Browne-Kerr to be the sole shareholder of TTC:

(i) she cannot maintain any allegations of irregularity in the voluntary liquidation based on her extant sole shareholding in TTC at the time of the 13 June 2018 meeting; and accordingly,

(ii) she is not a contributory of TTC, and as such does not have standing under s 482(1A) to bring a claim to terminate the winding up.

(c) Further, even if Ms Browne-Kerr has standing to bring a s 482 application, it must fail as:

(i) in that application, Ms Browne-Kerr bears the evidentiary onus of establishing that TTC is solvent and she has not discharged that onus;[12] as Mr Woods has put on evidence of outstanding creditors, whilst Ms Browne-Kerr has adduced no evidence of TTC’s solvency beyond her own opinion of the value of the Property, and that evidence is the subject of objection by the Liquidator; and
[12]Although this is an appeal de novo, it should be noted that at first instance the inability of Ms Browne-Kerr to discharge this onus was the substantive reason for Irving JR’s dismissal of her application.

(ii) Ms Browne-Kerr brings her application in circumstances of extraordinary delay, which speaks against an exercise of discretion under s 482 in her favour; and

(xviii) Any irregularity in the liquidation, if found to exist, is of no effect by operation of s 1322(3) of the Corporations Act; and further the liquidation can and should be regularised by orders made pursuant to s 90-15 of the Insolvency Practice Schedule (Corporations) (‘the IPS’). Accordingly, the alleged irregularities will not support an application under s 482 of the Corporations Act.

Four discrete issues emerge for determination:

(a) First, whether the Court can, or should, find on the admissible evidence that Ms Browne-Kerr is the sole shareholder of TTC;

(b) Second, whether Ms Browne-Kerr should have been notified of the 23 June 2018 meeting at which TTC was placed into voluntary liquidation;

(c) Third, whether any irregularities occurred in the appointment of Mr Woods, and if so, whether they are disarmed by operation of s 1322(3A) of the Corporations Act (and whether the liquidation should be regularised by an order of the Court under s 90-15 of the IPS); and

(d) Fourth, assuming Ms Browne-Kerr has standing, whether the Court should exercise its discretion under s 482 to terminate the winding up of TTC.

Does the evidence establish that Ms Browne-Kerr was the sole shareholder of TTC?

As mentioned above, Ms Browne-Kerr deposed to the circumstances of the share transfer, exhibiting in support the signed memorandum of resolution of the directors of TTC approving the transfer,[13] the share transfer itself, a share certificate issued under the company seal, and the company register of members which records her status as the sole shareholder. Ms Browne-Kerr was not cross examined.
[13]Section 251A(1) of the Corporations Act requires a company to keep minute books which record, within 1 month of their taking place, inter alia proceedings and resolutions of meetings of the company’s members and directors’ meetings.

As mentioned above, the Liquidator submits that the share transfer is not admissible on the grounds that it was a dutiable transaction which has not been duly stamped in accordance with the requirements of the Duties Act.

The Liquidator relies on s 272(1) of the Duties Act, which provides:

Receipt of instruments in evidence
(1) An instrument that effects a dutiable transaction or is chargeable under this Act is not available for use in law or equity for any purpose and may not be presented in evidence in a court or tribunal exercising civil jurisdiction unless-
(a) it is duly stamped; or
(b) it is stamped by the Commissioner or in a manner approved by the Commissioner.

It is not in dispute that the share transfer is an instrument that effects a dutiable transaction and as such is subject to s 272(1) of the Duties Act. Shares in a Victorian company, regardless of the nature of that company’s holdings, are ‘dutiable property’.[14] ‘Dutiable transaction’ is defined[15] as having the meaning given to it by s 7(2); which in turn provides in s 7(1) that ‘this Chapter charges duty on … a transfer of dutiable property’.
[14]Corporations Act, s 10.
[15]Corporations Act, s 3.

However, Ms Browne-Kerr draws attention to s 272(2) of the Duties Act, which provides:

(2)A court or tribunal may admit in evidence an instrument that effects a dutiable transaction, or is chargeable with duty in accordance with the provisions of this Act, and that does not comply with subsection (1)-
(a)if the instrument is after its admission transmitted to the Commissioner in accordance with arrangements approved by the court or tribunal; …

Ms Browne-Kerr seeks a s 272(2) direction from the Court, whereby the share transfer documents may be admitted into evidence on condition that they be subsequently transmitted to the Commissioner.

I am prepared to admit the share transfer document into evidence and give the necessary direction under s272(2).

Nevertheless, the Liquidator presses a second aspect arising from the Duties Act. Section 270(1)(b) of the Duties Act provides:

Registration of transfer of shares in private companies
(1)A private company must not enter in its records a transfer of shares on which duty is charged under this Act unless—
(a) a transfer has been delivered to the private company; and
(b) the transfer is duly stamped.

Penalty: 100 penalty units.

The Liquidator submits that, as the share transfer instrument has not been stamped, s 270(1)(b) prevents TTC from entering the share transfer in its records, including the share register and the minute book resolving to approve the transfer.

Implicit in the Liquidator’s submission is that the transfer of shares is a ‘transfer on which duty is charged under the Act’ and that the effect of the absence of stamping of the transfer means that Mrs Browne-Kerr cannot rely on the entries in the minute book and the company register because those entries were made in contravention of s 270(1)(b) of the Duties Act.

The submission faces difficulties. Even if the Liquidator is correct and the transfer of shares is one on ‘which duty is charged’ (which the Liquidator treats as synonymous with ‘a dutiable transaction’), such that its entry in the records of TTC contravenes the Duties Act, it does not thereby follow that the company records are not of legal effect. Ms Browne-Kerr argues that s 270(1) is a civil penalty provision which penalises a person who registers an unstamped transfer of shares but does not affect the validity of a contravening transfer. I accept this submission.

In Nelson v Nelson (‘Nelson’),[16] the High Court considered the principle of illegality; that is, whether equity will disentitle a party who acts contrary to law from legal or equitable relief. That case concerned a property which the appellant contended was held on trust for her by her daughter. The appellant had taken out a loan under a legislative scheme, for which only persons who did not presently own a property were eligible. In her application for the loan, the appellant falsely declared she did not have a beneficial ownership in the property. Her daughter claimed the appellant was disentitled from proving her beneficial ownership of the property by reason of her declaration. The High Court held that there is no general proposition that equity will let a loss lie where it falls in a case of illegality consisting of contravention of the policy of a statute.
[16](1995) 184 CLR 538.

After reviewing the act that the appellant had contravened,[17] Deane and Gummow JJ accepted a submission that the purpose of that act was sufficiently served by the penalties it prescribed for contravention, and that denial of the appellant’s rights as a beneficiary would cause prejudice to a person without furthering the objects of the act.[18] Further, their Honours accepted that the imposition of an additional sanction by disentitling the appellant to her equitable rights would not be an appropriate adjunct to the scheme which the act provided.[19] Ultimately, their Honours stated that the price for the appellant obtaining relief was that she be prepared to do equity herself according to the requirements of good conscience; in that case, this amounted to an agreement to pay back the loan acquired pursuant to the false declaration, as well as any difference between the subsidised interest rate under the scheme and the interest she would have been charged by a bank.[20]
[17]Ibid 568–70.
[18]Ibid 570.
[19]Ibid 570.
[20]Ibid 571–2.

Arriving at the same conclusion, McHugh J stated:

The courts, including courts exercising equitable jurisdiction, will not enforce an unlawful agreement or trust and, frequently will not enforce an agreement or trust that has been entered into for an unlawful purpose. But these propositions do not lead to the conclusion that a person who participated in the making or execution of such an agreement or trust never has a curial remedy. A court that finds that an agreement is unlawful or has an unlawful purpose has merely set the stage for a further inquiry: are the circumstances surrounding the agreement such that the court should deny a relevant remedy to the party seeking the assistance of the court?

McHugh J further stated that:[21]

The doctrine of illegality expounded in Holman was formulated in a society that was vastly different from that which exists today. It was a society that was much less regulated. With the rapid expansion of regulation, it is undeniable that the legal environment in which the doctrine of illegality operates has changed.
…
One of the most significant reasons for adopting a less rigid approach to illegality… is that statutory illegality can arise in a number of different ways. First, the statute may directly prohibit the contract or trust. Second, while the statute may not prohibit making the contract or trust, it may prohibit the doing of some particular act that is essential for carrying it out. Third, the statute may not expressly prohibit the contract or trust but the contract or trust may be associated with or made in furtherance of a purpose of frustrating the operation of the statute. Fourth, the statute may make unlawful the manner in which an otherwise lawful contract or trust is carried out. It would be surprising if sound legal policy required each of these forms of illegality to be treated in the same way. There is, for example, a vast difference between the performance of a contract for carriage of goods by ship that is overloaded in breach of the law and the making of a contract for the carriage of goods where the making of the contract is specifically prohibited.

[21]Ibid 611.

Moreover,[22]

The existence of criminal sanctions strengthens this analysis because the existence of a range of sanctions together with the omission of a provision that makes unenforceable any agreement made in breach of or to evade the Act is a powerful indication that no other sanctions are needed. Evidently, the federal Parliament saw the legislative sanctions and remedies as being sufficient to deal with unlawful conduct similar to that which has occurred in the present case. That being so, I can see no justification for the courts imposing a further sanction by refusing to enforce the legal or equitable rights of applicants under the Act, particularly when such a refusal may often result, as it does in this case, in a penalty out of all proportion to the seriousness of an applicant's conduct.

[22]Ibid 616–7.

Dawson J[23] and Toohey J[24] also found for the appellant, for similar reasons.
[23]Ibid 581.
[24]Ibid 597.

The doctrine of illegality was recently discussed by this Court in Li v So, where Croft J stated that:[25]

In [Nelson], McHugh J observed that the penalty for breaching a law or frustrating its policy should not be disproportionate to the seriousness of the breach and that a denial of relief due to a breach of statute should not create a situation of “double punishment”.
More recently, in Patel v Mirza,[26] the United Kingdom Supreme Court considered the doctrine of illegality. After considering the authorities (including Nelson v Nelson), Lord Toulson JSC observed that there are two broad policy reasons for the doctrine of illegality as a defence to a civil claim: first, that a person should not be allowed to profit from their own wrongdoing and second, the law “should be coherent and not self-defeating, condoning illegality by giving with the left hand what it takes with the right hand.[27]”

[25][2019] VSC 515, [99]–[100]; affirmed on appeal in Li v So [2021] VSCA 32.

[26][2016] 3 WLR 399.

[27]Ibid 428 (cited by the Court of Appeal in CA & CA Ballan Pty Ltd v Oliver Hume (Australia) Pty Ltd [2017] 55 VR 62, 91–2 [74] (Redlich, Tate, and Ferguson JJA).

In my view, it would not be in accordance with the purpose of the Duties Act to disentitle Ms Browne-Kerr to legal ownership of the shares. Section 272 of the Duties Act evinces an intention on the part of the legislature that unstamped dutiable transactions may be proved in evidence, where the relevant party undertakes to transmit the dutiable transaction to the commissioner. Section 270 provides for a civil penalty, and, like the provision in Nelson, it does not render void or unenforceable the transaction itself. In those circumstances, the policy of the Duties Act is not served by disentitling Ms Browne-Kerr to legal ownership of the shares.

Further and in any event, Ms Browne-Kerr submits that no duty is in fact payable on the share transfer and that as such it is not ‘a transfer of shares on which duty is charged’ within the meaning of s 270(1)(b) of the Duties Act.

Section 20(1) of the Duties Act provides that ‘the dutiable value of dutiable property that is the subject of the dutiable transaction’ is the greater of the consideration paid, if any, and the unencumbered value of the dutiable property. Here the consideration specified in the transfer is $1 per share; that is, $3 in total. Given that the practical effect of the share transfer is to transfer a half share in the Property, the value of the shares so transferred will exceed the consideration and be the dutiable value, all other things being equal.

However, Ms Browne-Kerr relies on Part 2, Division 2 of the Duties Act headed ‘Acquisition of Interests in Certain Landholders’. Sections 81(1) and 81(2) provide that a person acquires an economic entitlement in a private landholder if he or she acquire shares in that landholder, and that the duty chargeable on the relevant acquisition is calculated in accordance with s 86(1) of the Act. However, for the purposes of the Act a ‘landholder’ means a private company which has landholdings in Victoria with a total unencumbered value of $1,000,000 or more. Ms Browne-Kerr submits that the only available evidence of the value of the Property is that it has a value of less than $1,000,000; with the result that no duty is payable. As such Ms Browne-Kerr submits that the share transfer, when transmitted to the commissioner, will be stamped non-dutiable and that as such it does not amount to ‘a transfer of shares on which duty is charged’ for the purpose of s 270(1)(b) of the Duties Act.

The only valuation evidence before me is Ms Browne-Kerr’s opinion, expressed in her affidavit, that the land is worth between $650,000 - $750,000. The Liquidator objects to its admissibility on the basis that it is a non-expert opinion; particularly as the basis for the opinion is not set out. I propose to deal with the admissibility of that evidence when considering the solvency of TTC; for present purposes it is sufficient to note that if the evidence is excluded there is no evidence of the value of the landholdings of TTC, and if it is admitted, they have a value of less than $1,000,000. Either way, Ms Browne-Kerr’s submission that the instrument when lodged will be stamped non-dutiable appears correct.

Accordingly, I am not satisfied that the entering into the company records of the transfer gives rise to a breach of s270(1)(b) of the Duties Act. If I was so satisfied, I do not consider that the consequence of the breach is such that I cannot have regard to the register or the minutes. As discussed above, it would not be in line with the purpose of the Duties Act to disentitle Ms Browne-Kerr in this way, particularly where it is likely that the transaction will be non-dutiable and where Ms Browne-Kerr has offered to undertake to remedy any breach of the Duties Act by transmitting the share transfer instrument to the commissioner.

Alternatively, Ms Browne-Kerr relies on s 43 of the Duties Act, which provides an exemption from the payment of duty where there has been a transfer between spouses, there is no consideration for the transfer, and the property is a residential property. This section has no application to this case, including because there was consideration expressed on the face of the transfer ($3).

The share transfer document is not the only evidence relied upon by Ms Browne-Kerr. In addition to her affidavit evidence of the fact of transfer, Ms Browne-Kerr relies on an extract of the company register and a signed memorandum of the resolution of TTC’s director to approve the transfer of shares to Ms Browne-Kerr. In her affidavit, and after referring to her signing of the transfer, she deposes that minutes of meeting recording the transfer were also prepared and signed and that her ownership of the shares was noted in the share register.

As Ms Browne-Kerr submitted, the share register is prima facie proof of the matters shown in it.[28]
[28]Corporations Act, s 176.

The same applies to minute books which record resolutions of the company’s members,^[29] provided that they record the relevant resolution within 1 month of its passing and that the minute is signed by the chair of the meeting within a reasonable time of the meeting.[30] Whilst the signed minute does not record that it was signed by Mr Browne-Kerr as Chair of the meeting, he was the sole director at the time and sole attendee of the meeting. Further, a fair reading of Ms Browne-Kerr’s evidence suggests (at least arguably) that the minutes were signed around the time of the share transfer, and therefore within 1 month of the resolution.
[29]Corporations Act, s 251A(6).
[30]Corporations Act, ss 251A(1)–(2).

In the result, the admissible evidence supportive of the share transfer, apart from the share transfer itself, consists of Ms Browne-Kerr’s affidavit evidence, the company register, and the extract from the minute book.

The Liquidator also pointed, entirely reasonably, to a number of matters which give rise to some scepticism as to the fact of the transfer: he points not only to the fact that the transfer was not recorded in the ASIC register, but also to the fact that changes were made to the ASIC register both during the period between 13 February 2018 and 20 March 2018,[31] and again between 20 March 2018 and 24 May 2018.[32] Even allowing for the fact that the share transfer documents may have not been lodged in the period after their signing in March 2015, it is difficult to see why the ASIC register was not updated during either of those 2 periods; especially between 20 March 2018 and 24 May 2018, where the changes specifically effected Ms Browne-Kerr’s status. Nonetheless, it is fair to acknowledge that notice of these matters was given to the Liquidator on 12 November 2018, relatively close to Ms Browne-Kerr becoming aware of the fact of the liquidation of TTC in August 2018. Of course, notification of a change in shareholding being given to the Liquidator after liquidation has occurred understandably invites suspicion as to its bona fides in and of itself.
[31]In respect of the reinstatement of the company and its registered office; see [19(c)] above.
[32]So as to record that Ms Browne-Kerr was now a director of TTC; see [19(f)] above.

However, while it is one thing to be sceptical about the asserted share transfer; it is quite another to reject Ms Browne-Kerr’s sworn evidence, absent direct challenge or evidence to the contrary (save of course the absence of any contemporaneous lodgement of company documentation at ASIC), particularly where the rejection of that evidence would carry with it the further consequence that the supporting documents had been fraudulently prepared for the purposes of advancing Ms Browne-Kerr’s claims. It is not appropriate for me to reject the evidence in such circumstances and I am not willing to do so.

The Liquidator also submitted that, in the event the share transfer is valid, the Trustee in Bankruptcy intends to take steps to set aside the transfer on the basis that it is a void transfer of property within the meaning of ss 120(1) or 121(1) of the Bankruptcy Act. That might well be the case; if such an application is made, and succeeds, then the transfer will be void and ownership of the shares will in effect revert to Mr Browne-Kerr and thereby vest in the Trustee in Bankruptcy. However, until such time as such an application is determined, it is necessary to proceed on the basis that the transfer has taken effect.

Accordingly, on the evidence before me, Ms Browne-Kerr is the sole shareholder in TTC. This gives her standing as a contributory to make an application under s 482 of the Corporations Act to terminate the winding up of TTC.

It also has one further and significant consequence: as Ms Browne-Kerr, and not Mr Browne-Kerr, is the sole shareholder in TTC, the shares in TTC did not vest in the Trustee in Bankruptcy. Therefore, the shareholders’ resolution for the voluntary winding up of TTC passed by the Trustee in Bankruptcy qua sole shareholder was passed by a person who was not a shareholder at the relevant time. On the evidence before me, TTC should not have been wound up.

Should Ms Browne-Kerr have been notified of the 13 June 2018 meeting?

Ms Browne-Kerr contends that she should have been given notice of the 13 June 2018 meeting. Section 249J(1) of the Corporations Act provides:

Notice of meetings of members to members and directors
Notice to members and directors individually
(1)Written notice of a meeting of a company’s members must be given individually to each member entitled to vote at the meeting and to each director …

(underline added)

Even allowing for the fact that the Trustee in Bankruptcy had no means of knowing that Ms Browne-Kerr was the sole shareholder of TTC; he plainly knew that she was a director. That was why the resolutions passed on that day included a resolution removing Ms Browne-Kerr as a director.

Plainly, notice should have been given to Ms Browne-Kerr of the 13 June 2018 meeting, pursuant to s 249J(1) of the Corporations Act. It was not.

What is the effect of any irregularities on the appointment of Mr Woods as liquidator of TTC?

The failure to inform Ms Browne-Kerr, a director of TTC, of the 13 June 2018 meeting is an irregularity in the procedure prescribed by the Corporations Act. Moreover, if Ms Browne -Kerr was the sole shareholder of TTC, the fact that she did not vote at the 13 June 2018, and that a non-shareholder (the Trustee in Bankruptcy) did is also an irregularity.

Resolutions passed at the 13 June 2018 meeting resulted in TTC being placed into liquidation and the subsequent appointment of the Liquidator.

The Liquidator submits that if an irregularity is found to have occurred, s 1322 of the Corporations Act operates such that the irregularity is of no effect, unless the Court is of the opinion that the irregularity has caused or may cause substantial injustice that cannot be remedied by any order of the Court, and makes a consequential order invalidating the Liquidator’s appointment.

Section 1322 of the Corporations Act provides:

Irregularities
…
(2)A proceeding under this Act is not invalidated because of any procedural irregularity unless the Court is of the opinion that the irregularity has caused or may cause substantial injustice that cannot be remedied by any order of the Court and by order declares the proceeding to be invalid.
(3) A meeting held for the purposes of this Act, or a meeting notice of which is required to be given in accordance with the provisions of this Act, or any proceeding at such a meeting, is not invalidated only because of the accidental omission to give notice of the meeting or the non-receipt by any person of notice of the meeting, unless the Court, on the application of the person concerned, a person entitled to attend the meeting or ASIC, declares proceedings at the meeting to be void.

…
(6) The Court must not make an order under this section unless it is satisfied:
…
(c) in every case – that no substantial injustice has been or is likely to be caused to any person.

The reference to ‘proceeding’ in s 1322(2) refers to any proceeding, whether a legal proceeding or not. Robson’s Annotated Corporations Legislation (‘Robson’s’) states:[33]

The term ’proceeding’ has been given broad definition, in the sense of an official procedure. In Sheahan v Londish, Young JA observed: ‘it is a common use of the word to describe what happens in parliament or at a meeting as the proceedings.’[34] Markovic J accepted in Shearwood v Allied Resource Partners Pty Ltd[35] that the removal of a director is a “proceeding” for the purposes of s 1322.
…
The adoption of a resolution at a meeting is a proceeding for the purposes of s 1322(1) and (2).[36]
(citations reformatted)

[33]Thomson Reuters, Robson’s Annotated Corporations Legislation (at September 2021) [1322.20].

[34](2010) 244 FLR 64, 83 [144].

[35][2017] FCA 1451, [158].

[36]City Pacific Ltd v Bacon (No 2) (2009) 178 FCR 81, 94-5 [51] (Dowsett J).

Not all irregularities fall within s 1322(2). That section will cause a proceeding not to be invalidated because of ‘any procedural irregularity’ (emphasis added). Some irregularities will constitute substantive irregularities and so not trigger the presumption against invalidity in s 1322(2). Robson’s states:[37]

Authorities concerning whether an irregularity can be characterised as procedural or substantive are collected in Lean v Banning Holdings Pty Ltd.[38] A common approach is to ascertain the nature of an irregularity by determining what was the ‘thing to be done’. If the irregularity changed the substance of the thing to be done, the irregularity would be substantive; if it merely departed from the prescribed manner in which the thing was to be done, it would be procedural. The circumstance that the same result might have been achievable in general meeting does not mean that the circular resolution was not affected by an irregularity that was more than merely procedural.[39]
…
An unauthorised voting procedure which denies members their right (a substantive entitlement) to have a vote taken in the manner at the appointed time and according to known rules, is unlikely to constitute a ‘procedural irregularity’.[40]
(citations reformatted)

[37]Robson’s (n 33) [1322.30].

[38][2017] WASC 353, [36]–[38] (Smith AJ).

[39]Re Richardson & Wrench Holdings Pty Ltd (2013) 97 ACSR 351, 357 [26]–[29] (Brereton J).

[40]Re Ryde Ex-Services Memorial & Community Club Ltd [2015] NSWSC 226, [115]–[117] (Lindsay J).

Further, Robson’s notes:[41]
[41]Robson’s (n 33) [1322.130].

The appointment of a liquidator is not of a ‘procedural nature’.[42]
[42]Re ACN 605 810 928 Pty Ltd (in liq) [2018] NSWSC 2026, [12] (Black J).
(citations reformatted)

and:[43]

The onus of establishing one of the conditions in s 1322(6)(a), and of establishing the absence of substantial injustice, rests upon the applicant.[44] As the defects become more serious, less and less evidence is necessary to show that the resolutions would not have been passed.[45]
(citations reformatted)

[43]Robson’s (n 33) [1322.14].

[44]Australian Hydrocarbons NL v Green (1985) 10 ACLR 72, 83 (Hodgson J); Jordan v Avram (1997) 141 FLR 275; 281–2 (Gillard J).

[45]Buckland v Johnstone (1991) 5 ACSR 404; Mamouney v Soliman (1992) 9 ACSR 63; National Australia Bank Ltd v Market Holdings Pty Ltd (2000) 50 NSWLR 465.

There are two irregularities here; the first concerns the failure to give notice of the meeting to Ms Browne-Kerr qua director; the second concerns the fact that the shareholder who voted qua sole shareholder in favour of the resolution that the company be placed into liquidation was not, on the evidence before me, a shareholder in the company.

The former irregularity is clearly procedural. Had Mr Browne-Kerr in fact been the sole shareholder in TTC and his shares had as a consequence vested in the Trustee in Bankruptcy, the irregularity would have been of little moment. Ms Browne-Kerr as the director would have been given notice, but she would have been powerless to do anything to prevent the Trustee in Bankruptcy voting the shares in favour of the resolution and appointing the Liquidator. However, the relevant counterfactual is that Ms Browne-Kerr would have attended and at, or prior to the meeting, would have informed the Trustee in Bankruptcy that she, not he, was the sole shareholder in TTC. Had that taken place, one would expect that TTC would not have gone into liquidation, at least until Ms Browne-Kerr’s assertion as to her status as the sole shareholder had been confirmed (or otherwise).

As such, in relation to the failure to give notice, the question becomes whether substantial injustice has arisen or is likely to arise. The Liquidator submits that it has not, as whatever the circumstances which led to TTC being placed into liquidation, it is insolvent and as such there is no injustice in allowing TTC to remain in liquidation, regardless of the circumstances which led to it attaining that status. The Liquidator puts this forward as an impediment to the termination of the winding up sought pursuant to s 482 of the Corporations Act. It is convenient therefore to consider this issue in the context of the application to terminate the winding up.

The second irregularity is plainly substantive. On the evidence before me, TTC should not have gone into liquidation. The purported members resolution to that effect was passed by a person who was not a shareholder, much less the sole shareholder in the company. The consequences of that circumstance are also, at least in the first instance, conveniently addressed in the context of the application to terminate the winding up.

Should the Court exercise its discretion under s 482 to terminate the winding up of TTC?
Submissions of each party

Ms Browne-Kerr has applied for orders terminating the winding up of TTC pursuant to an exercise of s 482 of the Corporations Act.

Ms Browne-Kerr’s case rests on the injustice of the liquidation arising without Ms Browne-Kerr’s knowledge, and by the resolution of a person claiming to be, but who was not in fact, a shareholder. She submits that the particular circumstances of this liquidation and the way in which it arose warrant the making of orders under s 482 terminating the winding up.

Besides contesting the irregularity of the appointment of its appointment, the Liquidator raises two obstacles to the application. First, the Liquidator submits that there is an onus on an applicant under s 482, even in circumstances of voluntary liquidation, to prove the solvency of the relevant company. Second, the Liquidator submits that owing to the extraordinary and unexplained delay by Ms Browne-Kerr, and the irreparable harm the company’s creditors will suffer if the winding up is terminated, the interests of justice demand that the application be refused.

The Liquidator submits that it is relevant to note that the Judicial Registrar, in dismissing Ms Browne-Kerr’s original application, had regard to her inability to discharge the onus of proving TTC’s solvency. The Liquidator contends that while this appeal is to be determined without being fettered by the Judicial Registrar’s decision, the court should give such weight to his judgment as appears proper.[46]
[46]Southern Motors Pty Ltd v Australian Guarantee Corporation Ltd [1980] VR 187, 190 (Starke, Murphy and Brooking JJ)

By way of response, Ms Browne-Kerr submits that:

(a) As the company was not wound up on the grounds of solvency, there is no onus on Ms Browne-Kerr to establish the solvency of TTC. She argues that there is no authority that supports the imposition of an evidentiary onus to prove solvency in relation to a voluntary liquidation entered into on other grounds. She submits that in those circumstances, the authorities relied on by the Liquidator are distinguishable.

(b) The Liquidator has not produced any reports to creditors or proofs of debt to support its claim that some $224,090.14 is owed by TTC.

(c) The debt owed by TTC to Stubbs Superannuation does not take account of monies spent by Ms Browne-Kerr in upkeep, maintenance, and improvement that have increased the value of the Property. As the beneficiaries of Stubbs Superannuation, through Stubbs Investment, are the half owners of the Property that debt should be set off against the debt.

(d) Repayment of the debt owed by TTC to Stubbs Superannuation has not been pressed by that creditor.

Further, Ms Browne-Kerr submits that TTC is a non-trading entity whose sole purpose was to hold a half share of the Property. In those circumstances, she contends that the Court should not be concerned as to any public interest implications of terminating the winding up, as there is no risk that TTC would trade in insolvency and thereby pose a danger to members of the public.

General principles – Von Risefer and Spartan

As noted above, s 482(1) of the Corporations Act provides:

Power to stay or terminate winding up
(1) At any time during the winding up of a company, the Court may, on application, make an order staying the winding up either indefinitely or for a limited time or terminating the winding up on a day specified in the order.

A non-exhaustive list of principles applicable to an application under s 482 was endorsed by Ashley JA and Beach AJA in the Court of Appeal of this Court in Von Risefer v Mainfreight International Pty Ltd (‘Von Risefer’).[47] In that case, a company had been wound up in insolvency arising from non-compliance with a statutory demand, based on a default judgment. The applicant contended that the statutory demand relied upon in the default judgment had been incorrectly served, and sought to set aside the winding up under s 482. Their Honours stated:[48]
[47](2009) 25 VR 366.
[48]Ibid 376–8 (Ashley JA).

A long line of authorities establishes the framework within which an application to terminate or stay a winding-up will be considered. In Re Warbler Pty Ltd, Master Lee QC of the Queensland Supreme Court said this:^[49]
[49](1982) 6 ACLR 526, 533.
1. The granting of a stay is a discretionary matter, and there is a clear onus on the applicant to make out a positive case for a stay.[50]
[50]Re Calgary & Edmonton Land Co Ltd (in liq) [1975] 1 WLR 355, 358–9 (Megarry J).
2. There must be service of notice of the application for a stay on all creditors and contributories, and proof of this.[51]
[51]Re South Barrule Slate Quarry Co (1869) LR 8 Eq 688; Re Bank of Queensland Ltd (1870) 2 QSCR 113.
3. The nature and extent of the creditors must be shown, and whether or not all debts have been [or will be] discharged.[52]
[52]Krextile Holdings Pty Ltd v Widdows [1974] VR 689; Re Data Homes Pty Ltd [1972] 2 NSWLR 22, 26 (Mason AJA).
4. The attitude of creditors, contributories and the liquidator is a relevant consideration.[53]
[53]Re Calgary and Edmonton Land Co Ltd (n 50).
5. The current trading position and general solvency of the company should be demonstrated. Solvency is of significance when a stay of proceedings in the winding up is sought.[54]
[54]Re a Private Company [1935] NZLR 120; Re Mascot Home Furnishers Pty Ltd [1970] VR 593, 598 (Gillard J).
6. If there has been non-compliance by directors with their statutory duties as to the giving of information or furnishing a statement of affairs, a full explanation of the reasons and circumstances should be given.[55]
[55]Re Telescriptor Syndicate Ltd [1963] 2 Ch 174.
7. The general background and circumstances which led to the winding up order should be explained.[56]
[56]Krextile Holdings Pty Ltd v Widdows (n 52).

8. The nature of the business carried on by the company should be demonstrated, and whether or not the conduct of the company was in any way contrary to ‘commercial morality’ or the ‘public interest’.[57]
[57]Krextile Holdings Pty Ltd v Widdows (n 52); Re Data Homes Pty Ltd (n 52).

This list has been often cited. But, as Master Lee himself stated, it was not intended to be exhaustive, and should not be regarded as a series of rigid principles.[58] Nor does it follow that all items on the list carry equal weight. Solvency or otherwise of the company will loom large where the company was wound up because of inability to pay its debts as they fell due. Thus, in Anderson v Palmer, Barrett J said:[59]
[58]Dubolo Pty Ltd v Codrington Investment Corporation Pty Ltd (1998) 26 ACSR 723, 725 (Santow J).
[59][2002] NSWSC 192, [6].
In a case such as this where the company was wound up because of inability to pay its debts as they fell due, the whole focus has moved to a system of administration presided over by the liquidator in the interests of creditors, with the interests of members relegated to a subordinate position. It cannot be expected that restoration of control of the company's destiny to its shareholders and directors (or, in this case, its sole shareholder and director) will be allowed by the court in the exercise of its discretion unless it can be seen that the debts of the existing creditors have been or will be paid and that there is a sufficient degree of additional financial strength and stability to promote confidence in the company’s ability to continue without any appreciable risk of reverting to liquidation. It would not be an appropriate or prudent exercise of the court's discretion to re-launch a company which, while for the moment technically solvent, was in such a border line position that it might well succumb again to compulsory winding up in the short term. As Street J said in Re Data Homes Pty Ltd,[60] the court will not exercise its discretions in a way which has ‘the consequence of permitting an insolvent company to go forth again into the community’. The same applies to a company which is technically solvent but likely to become insolvent.
[60]Re Data Homes Pty Ltd (n 52).

The importance of an applicant demonstrating the solvency of a company, and of the Court having regard to the public interest – and to the interrelated issue of commercial morality – has often been emphasised. In recent times, Hammerschlag J said this in Gematech Pty Ltd v Bardi Investments Pty Ltd:[61]
[61][2008] NSWSC 196, [24]–[31].
The approach to be taken by the Court to applications such as the present, and the factors to which the Court may and should have regard, have been the subject of consideration in the authorities.[62]
[62]See Re Telescriptor Syndicate Ltd (n 55); Re Mascot Home Furnishers Pty Ltd (n 54); Re Data Homes Pty Ltd (n 52); Re Warbler Pty Ltd (n 49); Dubolo Pty Ltd v Codrington Investment Corporation Pty (n 58); Re Intag International Ltd (in Liq); Westpac Banking Corp v Intag International Ltd [1999] NSWSC 645; Mercy & Sons Pty Ltd v Wanari Pty Ltd (2000) 35 ACSR 70; Anderson v Palmer (n 59); Re Nardell Coal Corporation Pty Ltd (2004) 49 ACSR 110; Deputy Commissioner of Taxation v Biosolids Management Pty Ltd [2004] NSWSC 272; Metledge v Bambakit Pty Ltd (in liq) [2005] NSWSC 160; McConnochie v Lopez [2006] WASC 206; Deputy Commissioner of Taxation v Giumar Pty Ltd (in liq) [2006] FCA 101; Re The King & I Pty Ltd [2007] FCA 2085.
Relevantly, for present purposes, two things are clear.
Firstly, the solvency of the Company is to be demonstrated by the applicants who bear the onus to do so by leading the ‘fullest and best’ evidence of the company’s financial position.[63] Proper verification of assets and liabilities is critical to rebut the presumption of insolvency. Unaudited accounts and unverified claims of ownership or valuation are not ordinarily probative of insolvency.[64]
[63]Commonwealth Bank of Australia v Begonia (1993) 11 ACSR 609.
[64]Expile Pty Ltd v Jabb’s Excavations Pty Ltd (2003) 45 ACSR 711.
In QBE Workers’ Compensation Pty Ltd v P Russell Enterprises Pty Ltd White J restated the correct approach as follows:[65]
[65][2005] NSWSC 1128, [26].
… the Court is unlikely to be persuaded to act on the evidence of a single director/shareholder without external confirmation. That confirmation is typically obtained either from the liquidator of the company, if he has carried out sufficient investigations so as to put himself in a position to express an informed opinion, or from the evidence of an external accountant.

Secondly, in considering the application, the Court is to have regard not merely to the interests of creditors but to the public interest, including whether granting the order would be detrimental to commercial morality.[66]
In the context of public interest and commercial morality Buckley J Re Telescriptor Syndicate Ltd required to be satisfied that the trading operations of the company had been ‘fair and above board’ and that there was not ‘an ugly side to the picture’, see also Krextile Holdings Pty Ltd v Widdows.[67] [1974] VR 689 at 694.
However, the concepts of commercial morality and public interest are not narrow.
In Re Data Homes Pty Ltd (which concerned the equivalent section in the Companies Act 1961 to s 482) Mason JA said:[68]
But it should not be assumed that there is any sharp dividing line between considerations which are detrimental to commercial morality and those which are opposed to the public interest. They clearly overlap. Nor should it be assumed, as the appellant would have it, that each is a narrow concept for in truth they are designed to give expression to the very broad discretion which s 243 confers upon the court.
There is as little reason for confining considerations of commercial morality to the investigation of misconduct in the affairs of the company as there is for restricting the public interest to the pecuniary interests of existing and future creditors …

(underline added; citations reformatted)

[66]Re Telescriptor Syndicate Ltd (n 55); Re Mascot Home Furnishers Pty Ltd (n 54); Re Data Homes Pty Ltd (n 52); Re Warbler Pty Ltd (n 49).

[67]Krextile Holdings Pty Ltd v Widdows (n 52) 694 (Gillard J).

[68]Re Data Homes Pty Ltd (n 52) 26-7 (Mason JA).

Since Von Risefer was decided, a number of trial decisions in the Federal Court and Supreme Court of New South Wales have again summarised the principles applicable to s 482 of the Corporations Act.[69] Most recently, Black J of the Supreme Court of New South Wales provided a helpful list of principles in Re Spartan Pastoral Company Pty Ltd (in liq):[70]
[69]See Re 311 Hume Highway Liverpool Fund Pty Ltd (in liq) (2013) 93 ACSR 683; Re Glass Recycling Pty Ltd(in liq) [2014] NSWSC 439, [15]ff (Brereton J); Inverell Shire Council v Australian Gemstone Resources Pty Ltd (in liq) (2018) 130 ACSR 351; [2018] NSWSC 1470, [34]–[37] (Rees J); Re Rainbow Carlingford One Pty Ltd (in liq) [2019] NSWSC 971 [42]ff (Rees J); Perera v ASIC [2019] FCA 2015, [66] (Markovic J).
[70][2020] NSWSC 1218, [25]–[31]; see also Re Golden Prosperity Pty Ltd (in liq) [2021] VSC 13, [13] (Irving JR).

I turn now to the applicable legal principles, which are well established, and I have drawn on my judgment in Re MWM Sydney Pty Ltd (in liq) [2016] NSWSC 688 for my summary of those principles. The Court’s power to make an order terminating a winding up under s 482 of the Corporations Act is discretionary, as the case law has noted, and a person who seeks such an order must establish that the order is appropriate. The factors relevant to whether a winding up should be stayed or terminated were summarised by Master Lee QC of the Supreme Court of Queensland in Re Warbler Pty Ltd:[71]
[71]The list cited here is the same list in Von Risefer (n 48) 376 (Ashley JA), citing Re Warbler (n 49) 533.

…
Master Lee noted that this list was not intended to be exhaustive and should not be regarded as a series of rigid principles, and that proposition has subsequently been endorsed in later case law.[72]
[72]Dubolo Pty Ltd v Codrington Investment Corporation Pty Ltd (n 58) 724 (Santow J), Metledge v Bambakit Pty Ltd (in liq) [2005] NSWSC 160, [5] (Barrett J); Von Risefer (n 48); Re 311 Hume Highway Liverpool Fund Pty Ltd (in liq) [2013] 93 ACSR 683, 684–5 [4] (Black J).
In Mercy & Sons Pty Ltd v Wanari Pty Ltd, Austin J in turn observed that:[73]
[73](2000) 157 FLR 107, 117 [47]–[51].
In considering an application to stay or terminate a court-ordered winding up under s 482, the court has regard to various categories of interests. First, the court considers the interests of creditors, taking into account whether they object to the proposed termination. But even if all the existing creditors agree, the court may take the view that the proposed termination puts at risk the interests of future creditors. For example, the court is likely to be concerned where the proposal preserves the existing debts but defers their payment, particularly if the deferment has no enforceable status: see the remarks of Street J at first instance in Re Data Homes Pty Ltd.[74] Similarly, if the proposal is that the principal shareholder/creditor will pay out all the other creditors and seek recovery of his debt by instalments, the court is unlikely to permit the company to start trading again and thereby incur additional debts, since if the company fails again, recovery by the new creditors may be prejudiced by the existing debt. However, if the principal shareholder/creditor capitalises his debt, the court may well take a different view.[75]
[74]Re Data Homes Pty Ltd (n 52) 341.
[75]Collins v G Collins & Sons Pty Ltd (1984) 9 ACLR 58.
The cases concerning the interests of creditors do not, in my opinion, establish inflexible rules. Specifically, I do not believe that there is any absolute rule that a winding up cannot be terminated as long as one or more debts remains undischarged. Instead, the cases identify the range of concerns which the court is likely to have in exercising its discretion when an application is made, and therefore give guidance as to the matters upon which the court will need to be satisfied.
Second, the court considers the interests of the liquidator, particularly with respect to costs. …
Third, the court considers the interests of contributories. Generally a stay or termination will not be granted unless each member of the company either consents or is otherwise bound not to object to it, or his or her rights are properly secured.[76] …
[76]Re Calgary and Edmonton Land Co Ltd (in liq) (n 50).
Finally, the court considers the public interest, including matters of commercial morality, taking the initial approach that insolvent companies should be wound up.[77]
[77]Re Data Homes Pty Ltd (n 52).

His Honour there also noted (at [53]) that the factors relevant to the exercise of that discretion were not ‘absolute rules’ but ‘identify the range of discretionary concerns which the court will need to address.
Relevant factors were in turn identified by Austin J in Vero Workers Compensation (NSW) Ltd v Ferretti Pty Ltd[78] as including the interests of the company’s creditors, including future creditors; the interests of the liquidator, particularly with regard to costs; the interests of contributories and the interests of the public, including the public interest in matters of commercial morality, and the public interest that insolvent companies should be wound up.
[78](2006) 57 ACSR 103, 107 [17].
In Modena Imports Pty Ltd (in liq), Re Leveraged Capital Pty Ltd (recs and mgrs apptd) (in liq) v Modena Imports Pty Ltd (in liq),[79] Palmer J identified other relevant considerations, including that the applicant must make out a positive case for the favourable exercise of the Court’s discretion and must show the nature and extent of the creditors, and whether all debts have been discharged; the attitude of creditors, contributories and the liquidator; the current trading position and general solvency of the company; a full explanation by the applicant of any non-compliance by the directors with their statutory duties; the general background and circumstances leading to the winding up order; and the nature of the company’s business and whether the conduct of the company was in any way contrary to ‘commercial morality’ or ‘the public interest’. The identification of these considerations were approved by Gleeson JA in Re CNL Transport Pty Ltd (in liq) Hunt v Smith.[80]
[79][2010] NSWSC 739, [13].
[80][2017] NSWSC 291, [22].
In Re Glass Recycling Pty Ltd,[81] Brereton J summarised the relevant principles and observed (omitting citations) that:
[81]Re Glass Recycling Pty Ltd (n 69) [15]–[19].
Essentially, on such an application, the court must be satisfied, first, that the state of affairs that required that the company be wound up no longer exists. Where the winding up was on grounds of insolvency, it will be necessary for the applicant to demonstrate that the company is not, or is no longer, insolvent. This is usually the most significant consideration … Thus it has been said that an order terminating the winding up would usually be made if all the creditors are paid out, the liquidators’ costs and expenses are covered, and the members agree …
However, the factors to which the cases refer demonstrate that more is necessary than merely establishing that the state of affairs that required the company to be wound up no longer exists. This appears from, inter alia, the references to ‘commercial morality’ as a relevant consideration, and also from references to the interests of future as well as extant creditors. These factors illustrate that the second broad consideration that informs the exercise of the court’s discretion — once satisfied that the state of affairs that originally required winding up no longer exists — is that it would be reasonable to entrust the affairs of the company, once again, to the directors under whose management it previously failed.

(underline added)
In Re Glass Recycling Pty Ltd,[82] Brereton J also referred to the observations of Bergin CJ in Eq in Re SNL Group Pty Ltd (in liq),[83] which emphasised the importance of solvency in determining such an application. Her Honour there noted that:[84]
The other considerations, such as the extent of the creditors, the status of the debts and the nature of the company’s business will be taken into account in determining whether the company has returned to, or will be returned to solvency.

His Honour also referred to Apostolou v VA Corporation of Australia Pty Ltd[85] where Finkelstein J noted that an order terminating a winding up would usually be made if all the creditors are paid out, the liquidator’s costs and expenses are covered and the members agree, although his Honour also recognised that there may be exceptional circumstances where that would not occur despite a company’s solvency.
(underline added; citations reformatted)

[82]Ibid.

[83][2010] NSWSC 797.

[84]Ibid [24].

[85](2010) 77 ACSR 84, 96 [58].

It should be evident from these two summaries that the authorities place significant weight on the solvency of the company whose winding up is to be terminated. Whilst the significance of solvency is evidently greater where the company has been wound up in insolvency, there is a clear public interest in a Court not allowing an insolvent company to trade, regardless of the circumstances which led to that company being placed into liquidation.

The present case is similar to a thread of cases where Courts have set aside irregular liquidations that arose from a Court order, despite equivocal evidence of solvency.

In Von Risefer,[86] the Court of Appeal considered the case of Double Bay Newspapers Pty Ltd v The Fitness Lounge Pty Ltd (‘Double Bay’).[87] In that case, the applicant had filed an originating process seeking to wind up a company in insolvency on the basis that it had not complied with a statutory demand. Following the service of the originating process, the applicant and the company had entered into a repayment agreement, the terms of which required the company to make two payments prior to 16 March 2016 and further payments after that date. The company made the two payments. The originating process was returnable on 17 March 2016. The company did not appear. Due to a communication breakdown between the applicant’s solicitor and its credit manager, the applicant sought and obtained the winding up order on 17 March 2016, notwithstanding the agreement.
[86]Von Risefer (n 47) 378–9.
[87](2006) 57 ACSR 131.

Before White J, the applicant sought an order under s 482 that the winding up be terminated. In the result, the applicant abandoned its reliance on s 482 in light of the principle, averred to by the White J in his judgment, that a court will not terminate a winding up pursuant to s 482 unless it is satisfied as to the company’s solvency.[88] Nonetheless, White J set aside the winding up order on the basis that there was a fundamental irregularity in obtaining the order and that accordingly the company was entitled to have the order set aside notwithstanding the absence of evidence establishing solvency.[89] His Honour considered that orders obtained through a fundamental irregularity should be set aside as of right and not as a matter of discretion, in order to protect the integrity of court processes.[90]
[88]Ibid 134 [16].
[89]Ibid 137 [36].
[90]Ibid 137 [37].

The principle from Double Bay, whereby a winding up order was set aside due to a fundamental irregularity and without reliance on s 482, was subsequently considered by Black J in Re Smithfield Cellarbrations:[91]

The Court’s power to make an order terminating a winding up under s 482 of the Corporations Act is discretionary and a person who seeks such an order must establish that the order is appropriate even when the liquidator consents to that order. Relevant factors include the attitude and interests of creditors including future creditors whose interest might be prejudiced if the Company were released from winding up; whether all the Company’s debts have been discharged; the Company’s current trading position and general solvency; and any explanation for any non-compliance by directors with their statutory duties and of the circumstances leading to the winding up…
Proof of solvency is necessary in an application under s 482 of the Corporations Act even where there has been an irregularity in obtaining the winding up order.[92]
There is, however, an alternative basis to set aside a winding up order which is obtained through a fundamental irregularity, for example where a default judgment was entered in a party’s absence and without fault on its part.[93] In that situation, the court has jurisdiction to set aside a winding up order under UCPR r 36.15, which allows it to set aside a judgment or order of the court if it was made, inter alia, irregularly, and jurisdiction under UCPR r 36.16 to set aside a judgment or order after it has been entered if the judgment or order was made in the absence of a party, whether or not the absent party had notice of the relevant hearing or the application for the judgment or order. These provisions are directed to protecting the fundamental right of a party to proceedings before the court to be heard … Where a judgment is obtained through a fundamental irregularity it should be set aside ex debito justitiae, in order to protect the integrity of the court’s processes. I agree with, and would follow the view expressed by White J in Double Bay that such an order can and should be set aside without requiring proof of solvency in that situation. On the other hand, where an order was regularly obtained, although in the absence of an appearance by the company, it should only be set aside on proof of solvency.[94]

[91][2012] NSWSC 1085, [3]–[5].

[92]Double Bay (n 87) 134 [16].

[93]Double Bay (n 87).

[94]Labraga v Pomfret [2005] NSWSC 654, [44] (McDougall J); Workers’ Compensation Nominal Insurer v Teca Pty Ltd [2011] NSWSC 686.

Ms Browne-Kerr submits that there is no onus to prove solvency in the context of a voluntary winding up entered into on the grounds other than insolvency. Notwithstanding that in the present case the winding up arose pursuant to a purported members resolution, the member passing the resolution (here, the Trustee in Bankruptcy) did not make any declaration of solvency as provided for by s 494 of the Corporations Act. The absence of a declaration of solvency raises further issues in this case. Thus, the Liquidator argued that the winding up has taken effect as a creditors voluntary winding up;[95] submitting that s 9 of the Corporations Act provides that any voluntary liquidation where no declaration of solvency is lodged is to be treated as a creditors’ winding up.
[95] Section 494 of the Corporations Act provides that:

There is a long line of cases to the effect that s 482 of the Corporations Act does not apply directly to a company that has been wound up voluntarily,[96] but must instead be deployed in conjunction with the now-repealed s 511 of the Corporations Act.[97]
[96]See, eg, Re Wine National Pty Ltd [2014] NSWSC 507, [11] (Black J); Re Annabel Victoria Pty Ltd [2012] NSWSC 375 [3] (Black J); Re St George Bank [2007] NSWSC 134, [4] (Barrett J); McKern v Pacific Edge Corporation Pty Ltd (in liq) (2004) 51 ACSR 602, 602 [2] (Barrett J); Dean-Willcocks v Payce (Buildings) Pty Ltd (Supreme Court of New South Wales, Young J, 1 September 1994).
[97]Before its repeal, s 511 of the Corporations Act allowed a court to exercise, in a voluntary winding up, any power that it could exercise if the company were being wound up by the court.

It now appears to be the case that s 90-15 of the IPS is to be used in the manner of s 511 of the Corporations Act. In Hughes, Vah Newco No 2 Pty Ltd (in liq) (No 2),[98] Middleton J said:

The Court has the power to terminate a winding up under s 482(1) of the Corporations Act 2001 (Cth) (the ‘Corporations Act’) and s 90–15 of the Insolvency Practice Schedule (Corporations) (the ‘IPS’). Section 90–15 of the IPS is relied on because each of the Companies’ winding up remains a members’ voluntary winding up: see with respect to the predecessor provision, McKern v Pacific Edge Corporation Pty Ltd (in liq)[99] and Re Annabel Victoria Pty Ltd.[100]

[98][2020] FCA 1436.

[99]McKern v Pacific Edge Corporation Pty Ltd (in liq) (n 96) 602 [2]–[3].

[100]Re Annabel Victoria Pty Ltd (n 96) [3].

In the context of applications to terminate the winding up of a company wound up voluntarily, Ms Browne-Kerr’ referred to Milicevic v Capital Scaffolding Pty Ltd (‘Milecivic’).[101] In that case, a company with two shareholders was in a deadlock. The shareholders resolved to wind up the company voluntarily, lodging a declaration of solvency pursuant to s 494 of the Corporations Act. The shareholders had not understood that a winding up order would require the company to immediately cease carrying on its business; it had outstanding contracts and liabilities, and the two shareholders came to the conclusion that the winding up order had been premature. Moreover, at the date of the hearing of the application, they had resolved the deadlock. The shareholders brought an application to terminate the winding up, relying on a combination of ss 482 and 513 of the Corporations Act. The liquidators neither consented to nor opposed the application. Graham J made orders terminating the winding up and for the company to pay the costs and remuneration of the liquidators.
[101](2007) 65 ACSR 71.

In Milecivic, unlike the present case, the application was not opposed and there was evidence that the company was solvent.[102]
[102]Ibid 74 [21] (Graham J).

The evidence as to solvency

The Liquidator submits that Ms Browne-Kerr has not discharged (the disputed) evidentiary onus to establish that TTC is solvent. He objects to Ms Browne-Kerr’s lay opinion evidence as to the value of the TTC’s only asset, the Property,[103] and in any event points to ‘known creditors’ totalling $224,090.14 (that is, Stubbs Superannuation to $153,730.50l; ANZ Bank to $69,397.36; and the State Revenue Office to $962,28). In addition, the Liquidator refers to its own unbilled remuneration of $71,551.50 and unbilled disbursements (excluding counsel’s fees) of $77,723. The total of the known creditors’ claims and the unpaid Liquidator’s remuneration and disbursements is $373,364.64, which exceeds the value of TTC’s assets, even if Ms Browne-Kerr’s evidence were accepted and the higher value of her estimate was used.
[103]$650,000–$750,000 which would equate to TCC’s half share being $325,000–$375,000.

Ms Browne-Kerr argued that TTC does not owe a debt to Stubbs Superannuation; rather, she contends that any interest arising from the funding of the acquisition of the TTC half share of the Property is a proprietary interest of Stubbs Investment, such as that arising under some form of resulting or constructive trust, and that further it is subject to an offsetting claim arising from improvements later made to the Property and funded by Ms Browne Kerr or TCC. On the evidence before me, there is a debt is owing to Stubbs Superannuation; Mr Stubbs has sworn an affidavit which exhibits a signed loan agreement.[104] It is not at all clear to me how the fact that Ms Browne-Kerr or TTC paid for some improvements to the Property of which Stubbs Investment, as opposed to Stubbs Superannuation, owns a half share, gives rise to an offsetting claim. On the other hand, the fact that Stubbs Superannuation never sought to press its claim for repayment is not without significance.
[104]As mentioned above, the principal of the loan is $95,000; with 10% interest per annum accruing monthly. The significant accrual of interest appears to account for the $153,730.50 owed.

Ms Browne-Kerr’s opinion evidence as to the value of the Property is inadmissible. It is evidence as to an opinion relied upon to prove the existence of a fact about which the opinion is expressed, given by a person who does not have specialised knowledge that the relevant opinion is based on.[105] It is not uncommon for lay persons to express opinions about the value of their own home, but here Ms Browne-Kerr’s evidence does not even pretend to advance any basis for her belief. Moreover, she was put on notice that the evidence was the subject of objection and I made directions permitting her to adduce further evidence on the question of solvency of which she did not take advantage. However, there is some evidence of the value of the Property:
[105]Evidence Act 2008 (Vic), ss 76, 78.

(a) it was acquired in 2009 for $250,000;

(b) $150,000 has been spent on improvements; and

(c) there have been negotiations in respect of the sale of a half share for between $300,000 and $350,000.

Nevertheless, Ms Browne-Kerr is not able to establish that TTC is solvent, particularly when one has regard to the Liquidator’s fees and disbursements which are priority payments under s 556 of the Corporations Act.

Should relief be granted?

If Ms Browne-Kerr is required to establish solvency as a pre-condition to the exercise of the discretion to stay or terminate the winding up, her claim must be dismissed.

However, in my view it is not a prerequisite to the exercise of the discretion that solvency be established. As the authorities make clear, the power under s 482 is discretionary. The list of relevant factors is just that - a list where the particular significance of each factor is a matter of judgement, to be made in the particular circumstances under consideration. That solvency is not a precondition is entirely consistent with the quotation from Master Lee QC in Re Warbler Pty Ltd,[106] as cited by Ashley AJA in Von Risefer:[107] Master Lee noted that ‘solvency is of significance when a stay of proceedings is sought’, before continuing that ‘the solvency or otherwise of a company will loom large where the company was wound up because of inability to pay its debts as they fell due.’
[106]Re Warbler (n 49) 533.
[107]Von Risefer (n 47) 376.

TTC was not wound up because of an inability to pay its debts as they fell due. Rather, on the evidence before me it was wound up when it should not have been, as a result of a non-shareholder (the Trustee in Bankruptcy) voting as if it was the sole shareholder. That circumstance was, however, in part the fault of Ms Browne-Kerr and Mr Browne-Kerr, who as directors should have ensured that the ASIC register was updated to reflect the new share ownership position. It was also the product of the Trustee in Bankruptcy’s failure to give notice of the meeting of shareholders to all directors, including Ms Browne-Kerr, contrary to s 491 of the Corporations Act.[108] I do not therefore accept that my discretion to grant relief under s 482 of the Corporations Act does not arise by reason of Ms Browne-Kerr’s failure to establish that TTC is solvent. I do however accept that TTC’s financial position is a relevant matter to which regard is to be had in the exercise of my discretion.
[108]Of course, the Trustee in Bankruptcy had no way of knowing that Ms Browne Kerr was the sole shareholder; given that lack of knowledge, his failure to give notice of the meeting to Ms Browne Kerr as a director, would not, in the ordinary course of things, have mattered much.

The case therefore bears some analogy with Double Bay, where a liquidation by court order arose as a result of a fundamental irregularity. The analogy is not perfect, as in that case the right to have the Court’s winding up order set arose because of the need to protect the integrity of the Court’s processes. That is not the case here. Therefore, I do not accept that Ms Browne-Kerr is entitled to have the winding up terminated as of right, but I do consider that the fact that TCC should not have been wound up at all is a relevant discretionary factor that weighs very strongly in favour of the application to terminate the winding up.

The authorities establish that the attitude of the creditors to the termination of the winding up is important. Further, in Re Warbler,[109] as cited in Von Risefer,[110] service of the application to terminate the winding up was noted as an important factor.
[109]Re Warbler (n 49) 533.
[110]Von Risefer (n 47) 376.

Unhelpfully, Ms Browne-Kerr did not serve the application to terminate the winding up on the creditors. The Liquidator did not raise this omission before the Judicial Registrar, or on the appeal[111]. After the hearing, my chambers made enquiry of the solicitors for Ms Browne-Kerr and for the Liquidator as to whether the creditors had been given notice of the application, and whether any failure to do so had been raised. The solicitors for Ms Browne-Kerr did not respond; the Liquidator’s solicitors advised that the creditors had not been served and that the Liquidator had not raised the absence of service before the Judicial Registrar, but noted that Stubbs Superannuation was aware of the application.
[111]Had that occurred it may have been appropriate to adjourn the application and make orders for service on the creditors.

It is a factor of some significance that Stubbs Superannuation is aware of the application and that, despite it having provided the solicitors for the Liquidator with an affidavit for the purposes of the County Court Proceedings, it has not communicated its opposition to this application either directly or indirectly. Such a position is consistent with the position taken by Stubbs Investment in the County Court Proceedings,[112] and is also consistent with the rather generous approach taken by Stubbs Investment to recovery of the loan prior to the company being placed in liquidation.
[112]Stubbs Investments was named as a defendant essentially for reasons of conformity, but played no part in the proceeding and indicated it would abide the outcome of the proceeding.

Another discretionary factor of significance is the nature of TTC. TTC does not trade; its sole purpose is to hold the half share in the Property in which Ms Browne-Kerr, Mr Browne-Kerr and their children reside. The termination of TTC’s winding up, in circumstances where it should not have been wound up, yet where it has not been established that it is solvent, does not raise the same public interest considerations as it would if TTC were a trading entity and a consequence of terminating its winding up would be allowing an insolvent company to trade.

Although I am sympathetic to Ms Browne-Kerr’s position, she has to some extent been the architect of her own troubles. In addition to the deficiencies in maintaining accurate records with ASIC, there has been a regrettable failure to prosecute this application in a timely fashion. Although Ms Browne-Kerr raised the irregularities of the winding up resolution with the Liquidator in November 2018, she did not do anything more about them until 29 April 2021. Whilst I am sympathetic to her explanation that she lacked the resources to prosecute her claim, Ms Browne-Kerr would have been better advised to have prosecuted this proceeding earlier, rather than persisting with the doomed defence of the County Court Proceedings. There are regrettable consequences of that delay, including the fact that the Liquidator has continued to discharge his statutory responsibilities and thus become entitled to remuneration in the intervening period.

In Re Buddies Investments Pty Ltd,[113] Thomas J terminated a liquidation under s 482 of the Corporations Act where the winding up order had been obtained as a result of the service of the winding up application on a company at an address which was not the address of the company’s registered office. Due to an error by ASIC, the publicly available records showed the wrong address for the company’s registered office. The Court terminated the winding up, but only after the Liquidator’s costs were paid or payment of them was otherwise secured.[114] To similar effect, in Nationwide News Pty Ltd v Almona Pty Ltd,[115] Young J considered that in normal circumstances it would not be right to stay a winding up until the Liquidator was paid or payment of remuneration was secured, recognising that the Liquidator is a priority creditor by reason of s 556 of the Corporations Act. It is plain from the context that his Honour was referring to a permanent stay akin to termination.[116]
[113](1997) 2 Qd R 453.
[114]Ibid, 456–7.
[115](1988) 6 ACLC 84, 84.
[116]Ibid, 84.

Whilst the Liquidator was on notice of Ms Browne-Kerr’s allegations of irregularity, he was entitled to be sceptical of them, and in any event they were not pressed for some two and a half years until Ms Browne-Kerr verified them on oath in this belated application. In the meantime, the Liquidator was obliged to discharge his statutory responsibilities.

The Liquidator submits that the lengthy delay of itself justifies dismissal of the application. I do not agree, but I do consider that any termination of the Liquidation should be on terms that the Liquidator’s remuneration and disbursements be discharged.

This in turn gives rise to practical problems as to how the Liquidator’s remuneration and disbursements can be discharged or appropriately secured. Even on a good day, the value of TTC’s assets is unlikely to exceed the sum of its debts to creditors and the Liquidator’s entitlements. I am also concerned about another debt claimed against TTC, albeit not recognised by the Liquidator: the debt claimed by the accountant Mr Long, who lodged a caveat against the Property pursuant to a charge securing an advance allegedly made to TCC by Mr Long.[117] The presence of Mr Long’s caveat adds to the difficulties that confront TTC in any need to discharge the Liquidator’s priority entitlements.
[117]As mentioned above, Mr Long’s caveat was lodged on 18 May 2018 claiming an interest which arose pursuant to an agreement made on 22 November 2012.

The existence of that priority debt, even putting aside the debt to Stubbs Superannuation, gives rise to an obvious risk that, notwithstanding that it should not have occurred, any termination of the winding up might be futile.

That said, in the unusual circumstances of this case and given the irregularity which attended to the winding up to begin with, I consider that any risk of futility is not such that I should refuse the application to terminate the winding up, provided that Ms Browne-Kerr ensures that the Liquidator’s remuneration and expenses are paid. That these amounts will be higher than they would have been is the product of her delayed application. The payment or securing of the Liquidator’s remuneration and expenses will be necessary before the winding up is terminated. If it cannot be achieved, the winding up will not be terminated. In all practicality, the long term survival of TCC will also require a continued accommodation with Stubbs Superannuation and the other creditors. That these matters may be difficult to achieve however does not mean that Ms Browne-Kerr should be denied the opportunity to attempt to do so, given the unfortunate events which led to TTC being wound up.

In the circumstances I propose to stay the winding up until further order. If the Liquidators’ remuneration and expenses can be secured or paid, the winding up will be terminated. If they cannot, then the stay will be lifted and TTC will remain in liquidation. I shall allow the appeal against the orders of the Judicial Registrar dismissing the application. I shall dismiss the Liquidator’s application for an order pursuant to s 1322 of the Corporations Act regularising the application pursuant to s 90-15 of the IPS.

Subject to hearing from the parties as to the costs of the appeal and the hearing before the Judicial Registrar and as to the period referred to in sub-paragraph (4) below the orders that I propose to make are:

(1) Allow the appeal against the orders of the Judicial Registrar made 7 June 2021 dismissing the plaintiff’s application by originating process dated 29 April 2021 for orders pursuant to s 482 of the Corporations Act 2001 (Cth) (‘the Act’) terminating the winding up of The Thoroughbred Consultants Pty Ltd (the ‘Company’);

(2) Conditional upon the plaintiff or the Company paying or securing the remuneration and expenses of the Liquidator of the Company incurred or payable until the date of this order (and subject to further order excluding the remuneration and expenses of and incidental to the plaintiff’s application to terminate the winding up or any costs that the Liquidator may be ordered to pay to the plaintiff), the winding up of the Company shall be terminated;

(3) Pending the satisfaction of the condition referred to in paragraph 2 hereof, the winding up of the Company shall be stayed until further order;

(4) In the event that the condition referred to in paragraph 2 hereof is not satisfied by such further period as to be determined, the originating process shall be dismissed;

(5) The defendant’s claim pursuant to s 1322 of the Act and s 90-15 of the IPS is dismissed;

(6) List the matter for further hearing on a date to be determined;

(7) Liberty to apply.

(1) Where it is proposed to wind up a company voluntarily, a majority of the directors may, before the date on which the notices of the meeting at which the resolution for the winding up of the company is to be proposed are sent out, make a written declaration to the effect that they have made an inquiry into the affairs of the company and that, at a meeting of directors, they have formed the opinion that the company will be able to pay its debts in full within a period not exceeding 12 months after the commencement of the winding up.

Section 9 of the Corporations Act defines any winding up where a s 494 declaration is filed as a members’ voluntary winding up; any winding up where no such declaration is filed is considered a creditors’ voluntary winding up.

[2021] VSC 627

1 October 2021