Williams v CD Protective Services - [2010] QSC 32

SUPREME COURT OF QUEENSLAND

CITATION:

Williams v CD Protective Services [2010] QSC 32

PARTIES:

JULIE WILLIAMS AS OFFICIAL LIQUIDATOR OF C & D GLOBAL PROTECTION PTY LTD (IN LIQUIDATION)
(plaintiff)
v
C D PROTECTIVE SERVICES PTY LTD
(first defendant)
WHELAN, Craig Robert
(second defendant)
HELFERT, Joseph Aaron

(third defendant)

FILE NO/S:

SC No 8075 of 2009

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

14 January 2010

DELIVERED AT:

Supreme Court, Brisbane

HEARING DATE:

14 January 2010 (delivered ex tempore)

JUDGE:

Margaret Wilson J

ORDER:

1. that the agreement be approved;

2. that the agreement be placed in an envelope and sealed and marked “not to be opened without an order of the Court”.

CATCHWORDS:

CORPORATIONS – WINDING UP – LIQUIDATORS – RIGHTS AND POWERS – IN WINDING UP BY COURT – PROCEEDINGS BY LIQUIDATOR – where plaintiff/liquidator applies pursuant to s 477(2B) of the Corporations Act 2001 (Cth) for the Court’s approval of an agreement between her and the Deputy Commissioner of Taxation with respect to the funding of litigation – whether agreement should be approved

Corporations Act 2001 (Cth), 477(2B), 477(2)(c), s 556(1)(a)

Re Imobridge Pty Ltd in Liquidation No 2 [2000] 2 Qd R 280, referred to
Re ACN 076 673 875 Ltd (Bendeich as liquidator Greatorex and others intervening) (2002) 42 ACSR 296, referred to

Re Addstone Pty Ltd in Liquidation (1998) 83 FCR 883, referred to

COUNSEL:

C A Johnstone for the plaintiff.

D Rangiah SC for the defendants.

SOLICITORS:

Minter Ellison Lawyers for the plaintiff.
Piper Alderman Lawyers for the defendants.

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

MARGARET WILSON J

No 8075 of 2009

WILLIAMS AND ANOR	Plaintiffs
and
CD PROTECTIVE SERVICES PTY LTD AND ORS	Defendants

BRISBANE

..DATE 14/01/2010

ORDER

HER HONOUR: This is an application by the plaintiff/liquidator pursuant to section 477(2B) of the Corporations Act for the Court's approval of an agreement between her and the Deputy Commissioner of Taxation with respect to the funding of the litigation.

The application is brought pursuant to that section because both the litigation and the liquidation are expected to extend beyond three months.

The liquidator has deposed that she does not otherwise have sufficient funds in the liquidation to run the litigation, and that she believes by entering into this agreement the interests of the general body of creditors will best be served.

It is relevant to note that the creditors are alleged to amount to approximately $1.68 million in value. Of that amount the largest creditor is the Australian Taxation Office which is allegedly owed $1.42 million. The other creditors are L E Hawkins and Associates $11,200, WorkCover Queensland $101,899 and the Office of State Revenue $148,882.

None of the other creditors has been willing to provide any indemnity in respect of the costs of this proceeding. The other creditors are aware that the Deputy Commissioner of Taxation was approached by the liquidator to provide funding. However, they have not seen the agreement which has now been…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Williams v CD Protective Services

Details

AGLC: Williams v CD Protective Services [2010] QSC 32
Case: [2010] QSC 32
Decision Date: 14 January 2010

CaseChat Overview and Summary

Williams, the liquidator of a company, applied to the court for approval of an agreement made with the Deputy Commissioner of Taxation concerning the funding of litigation. The company was in liquidation, and the liquidator sought to ensure that the litigation could proceed despite the company's insolvent status. The legal issues before the court were whether the agreement was in the best interests of the creditors and members of the company and whether the liquidator had acted appropriately in entering into the agreement.

The court considered the nature of the agreement and its implications for the creditors and members of the company. It examined whether the agreement provided a fair and reasonable outcome for all parties involved and whether the liquidator had acted within her powers and in accordance with the best interests of the company. The court also assessed whether the agreement was necessary for the effective administration of the company's estate and the efficient resolution of the litigation. Ultimately, the court found that the agreement was in the best interests of the creditors and members and that the liquidator had acted appropriately in entering into the agreement.

Consequently, the court approved the agreement and ordered that it be placed in an envelope, sealed, and marked “not to be opened without an order of the Court”. This decision ensures that the litigation can proceed while protecting the interests of the creditors and members of the company. The liquidator's actions were deemed to be in the best interests of the company and its stakeholders, and the agreement was considered necessary for the effective administration of the company's estate.

Orders

Orders of the court

1. that the agreement be approved;

2. that the agreement be placed in an envelope and sealed and marked “not to be opened without an order of the Court”.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Williams v CD Protective Services [2010] QSC 32
PARTIES:	JULIE WILLIAMS AS OFFICIAL LIQUIDATOR OF C & D GLOBAL PROTECTION PTY LTD (IN LIQUIDATION) (plaintiff) v C D PROTECTIVE SERVICES PTY LTD (first defendant) WHELAN, Craig Robert (second defendant) HELFERT, Joseph Aaron (third defendant)
FILE NO/S:	SC No 8075 of 2009
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court, Brisbane
DELIVERED ON:	14 January 2010
DELIVERED AT:	Supreme Court, Brisbane
HEARING DATE:	14 January 2010 (delivered ex tempore)
JUDGE:	Margaret Wilson J
ORDER:	1. that the agreement be approved; 2. that the agreement be placed in an envelope and sealed and marked “not to be opened without an order of the Court”.
CATCHWORDS:	CORPORATIONS – WINDING UP – LIQUIDATORS – RIGHTS AND POWERS – IN WINDING UP BY COURT – PROCEEDINGS BY LIQUIDATOR – where plaintiff/liquidator applies pursuant to s 477(2B) of the Corporations Act 2001 (Cth) for the Court’s approval of an agreement between her and the Deputy Commissioner of Taxation with respect to the funding of litigation – whether agreement should be approved Corporations Act 2001 (Cth), 477(2B), 477(2)(c), s 556(1)(a) Re Imobridge Pty Ltd in Liquidation No 2 [2000] 2 Qd R 280, referred to Re ACN 076 673 875 Ltd (Bendeich as liquidator Greatorex and others intervening) (2002) 42 ACSR 296, referred to Re Addstone Pty Ltd in Liquidation (1998) 83 FCR 883, referred to
COUNSEL:	C A Johnstone for the plaintiff. D Rangiah SC for the defendants.
SOLICITORS:	Minter Ellison Lawyers for the plaintiff. Piper Alderman Lawyers for the defendants.