Chief Commissioner of State Revenue v Rafferty's Resort Management Pty Ltd [2008] NSWSC 452 | Case summary

4625/07 COMMISSIONER OF STATE REVENUE V RAFFERTY'S RESORT MANAGEMENT PTY LTD (IN LIQ) JUDGMENT 1 HIS HONOUR: The Chief Commissioner of State Revenue, a creditor of Rafferty's Resort Management Pty Ltd ("the Company"), brought proceedings for winding up the Company, by originating process filed on 20 September 2007. There was then considerable delay in bringing the application on for hearing, including an application that another creditor be substituted as plaintiff. On 29 January 2008 the directors of the Company appointed voluntary administrators. On 8 February 2008, at the first meeting of creditors of the Company conducted under s 436E of the Corporations Act, the creditors resolved that those voluntary administrators be removed and that Neil Cussen and Paul Weston be appointed in their place. 2 Mr Cussen and Mr Weston prepared a report to creditors dated 25 February 2008, and convened the second meeting of creditors under s 439A. They noted in the report that no proposal for a deed of company arrangement had been received and that the Company's operations were under the control of a receiver and manager. They expressed the opinion that the Company was clearly insolvent (unsecured creditors amount to about $3.315 million) and they recommended that it was in the creditors' best interests for the company to be wound up. They informed creditors that the winding up proceedings brought by the Chief Commissioner were due to return to the Court on 29 February 2008, and they expressed the view that it was likely that the company would be placed into liquidation by the Court. 3 When the winding up proceedings returned to the Court on 29 February 2008, Mr Cussen and Mr Weston as applicants obtained leave to file an interlocutory process that sought (inter alia): "1. Order pursuant to s 447A(1) of the Corporations Act 2001 (Cth) ('the Act') that: (a) the administration be terminated forthwith; (b) the Defendant be wound up in insolvency, or alternatively, pursuant to the provisions of s 459A of the Act, the Defendant be wound up in insolvency; (c) the section 513C day in relation to the administration is the day on which the Originating Process was filed." 4 The application was dealt with by Barrett J on that day. I have consulted the transcript of the hearing before his Honour. He ordered that the Company be wound up and that Mr Cussen and Mr Weston be appointed its liquidators. He dealt with another part of the interlocutory process dealing with remuneration, and stood over the application for relief in para 1(c) of the interlocutory process to be dealt with by the Corporations Judge at a later date, and so that part of the application subsequently came before me for hearing. It is plain from the transcript of the hearing that the purpose of the adjournment was to permit affected persons to have notice of the application and to be heard. Counsel for the applicants asked the Court to make a winding up order so as to remove the need for the administrators to incur the cost of conduct of the second meeting of creditors, which had been convened for 4 March. 5 The Court has a statutory obligation to adjourn the hearing of a winding up application if the company is under administration and the Court is satisfied that it is in the interests of the company's creditors for the company to continue under administration rather than be wound up (s 440A). An adjournment order had been made at an earlier time, up to 29 February, but plainly on that day Barrett J reached the conclusion that no further adjournment was appropriate in the interests of creditors. 6 The transcript of the hearing on 29 February suggests, though not conclusively, that the winding up order was made in insolvency under s 459A and not in reliance on s 447A(1), in spite of the wording of the interlocutory process. At page 8 of the transcript, Barrett J obtained confirmation from counsel for the applicants that the winding up application was before the court, that the plaintiff appeared, that the supporting creditor supported the making of a winding up order, and that the administrators did not oppose the order. These remarks imply that his Honour intended to make the order on the plaintiff's application in the originating process rather than on the administrators' application in the interlocutory process. 7 Counsel for the applicants, who was present in court on 29 February, contended to the contrary, saying that the winding up order was made under s 447A(1) on the application of his clients by the interlocutory process, but in my view in light of the transcript counsel's recollection must be faulty. Counsel informed me that the legal representative for the plaintiff appeared on 29 February but did not press for orders to be made under the originating process; instead he merely did not oppose the orders sought in the applicants' interlocutory process. But that is inconsistent with the transcript, page 8, where Barrett J confirmed that the winding up application was before the Court and the plaintiff was present. Further, the evidence before his Honour included the report of Mr Cussen and Mr Weston, which provided ample evidence of the insolvency ground upon which the originating process for winding up was based. 8 Additionally, in my opinion s 447A(1) does not authorise the Court to make a winding up order in any circumstances, and so the only basis upon which the order could have been made on the facts before his Honour (which included clear evidence of insolvency) was under s 459A. 9 This last sentence needs further explanation. It is made expressly clear by s 447A(2) that an order terminating an administration is authorised by s 447A(1), and therefore it must be an order about how Part 5.3A is to operate in relation to the company under administration. That appears to be so on the basis that Part 5.3A is to operate in relation to the company by ceasing to apply to it, when the administration is terminated. One might think that some different kind of order having the effect of terminating the administration would, for the same reason, be an order about how Part 5.3A is to operate in relation to the relevant company. An order winding up the company causes the administration to come to an end under s 435C(3)(g), and so it might appear that such an order is authorised by s 447A(1). On the other hand, it is not easy to characterise a winding up order as an order about how Part 5.3A (as opposed to Parts 5.4, 5.4A and 5.4B) is to operate, even though it incidentally brings the administration to an end. It is an order akin to the kinds of orders held by Santow J, in Re Switch Telecommunications Pty Ltd (in liq); ex parte Sherman (2000) 35 ACSR 172, not to be authorised by the section: "for example, an order dispensing with Part 5.3A altogether and declaring that some different regime is to operate" (see also Gibbons v LibertyOne Ltd (in liq) (2002) 41 ACSR 442 at [40]-[45]). 10 Moreover, in my opinion it would be inconsistent with the structure of the administration and winding up provisions of the Corporations Act to treat s 447A(1) as a source of the Court's power to wind up a company. The discretion given to the Court by s 447A(1) is very broad and there are no stated criteria, whereas the grounds for winding up a company in insolvency under Part 5.4 and on other grounds under Part 5.4A are comprehensively set out in the legislation. When, therefore, s 435C(3)(g) says that the administration of a company ends if the Court orders that the company be wound up, it assumes that the winding up order will be made on a ground stated in Part 5.4 or Part 5.4A. Finally, in circumstances where the Court is expressly authorised by ss 447A(2) and 435C(3)(a) to bring the administration to an end, it is implausible to construe s 447A(1) as authorising the making of an order under another part of the Act simply because it has the incidental effect of terminating the administration. 11 Counsel for the applicants also submitted that the interlocutory process was brought before the Court with a view to avoiding an abuse of process of the type that attracts jurisdiction under s 447A (citing Blacktown City Council v Macarthur Telecommunications Pty Ltd (admin apptd) (2003) 47 ACSR 391 at [16] per Barrett J). As Barrett J made plain in the passage cited by counsel, abuse of Part 5.3A is expressly mentioned in s 447A(2)(b) as a ground for ordering that the administration should end. That implies that abuse of process was relied on to support an order terminating the administration, not to support a winding up order. 12 Para 1(a) of the interlocutory process sought an order under s 447A terminating the administration. But it appears from the transcript (page 10) that counsel for the applicants told Barrett J that it was unnecessary for the Court to make an order terminating the administration, because that would just happen under s 435C(3)(g) if the winding up order was made. Consequently no order was made terminating the administration. The fact that there was no termination order and so the company was indubitably under administration "immediately before" the making of the winding up has some significance, for reasons explained below. 13 The purpose of the liquidators' application in para 1(c) of the interlocutory process is to permit them to challenge transactions as voidable transactions over a longer period of time than would otherwise be permissible. Section 588FE deals with the circumstances in which an unfair preference (s 588FA), an uncommercial transaction (s 588FB), an insolvent transaction (s 588FC), an unfair loan to a company (s 588FD), and an unreasonable director-related transaction (s 588FDA), become voidable transactions capable of being dealt with by the Court under s 588FF. Under s 588FE a transaction is not a voidable transaction unless it took place, or an act was done for the purpose of giving effect to it, during a stated period of time ending on the "relation-back day", the period of time varying depending on the kind of transaction involved. 14 The "relation-back day" is defined in s 9 as follows: "(a) if, because of Division 1A of Part 5.6, the winding up is taken to have begun on the day when an order that the company or body be wound up was made - the day on which the application for the order was filed; or (b) otherwise - the day on which the winding up is taken because of Division IA of Part 5.6 to have begun." 15 Section 513A, which is in Part 5.6 Division 1A, provides relevantly as follows: "If the Court orders under section … 459A … that the company be wound up, the winding up is taken to have begun or commenced: (a) … (b) if, immediately before the order was made, the company was under administration - on the section 513C day in relation to the administration; or ... (e) otherwise - on the day when the order was made." 16 In this case the Court made an order under s 459A that the Company be wound up, and immediately before the order was made, the Company was under administration. Therefore under s 513A(b) the winding up is taken to have commenced on the section 513C day in relation to the administration. 17 Section 513C provides: "The section 513C day in relation to the administration of a company is: (a) if, when the administration began, a winding up of the company was in progress - the day on which the winding up is taken because of this Division to have begun; or (b) otherwise - the day on which the administration began." 18 When the administration began, on 29 January 2008, there was no winding up in progress, although there was a pending application to wind up. In those circumstances the section 513C day is 29 January 2008, the day on which the administration began. Under s 513A, that is the day on which the winding up is taken to have begun. Therefore para (b) of the definition of "relation-back day" applies, and so the relation-back day is 29 January 2008. That means, for example, that the liquidators may challenge a transaction as an unfair preference only if was entered into, or an act was done for the purpose of giving effect to it, during the period beginning on 29 July 2007. 19 The present case is on all fours with Olsen v Nodcad Pty Ltd (1999) 32 ACSR 118, where the commencement of winding up proceedings was followed by the appointment of an administrator, and subsequently a winding up order was made by consent without any prior order for the termination of the administration. In that case I held that the relation-back day was the day on which the administrator was appointed rather than the day on which the winding up proceedings were commenced (at [17]; see also St Leonards Property Pty Ltd v Ambridge Investments Pty Ltd (admins apptd) (2004) 50 ACSR 443 at [9]). 20 What the liquidators want to achieve is for the relation-back day to be 20 September 2007, the date of filing of the originating process for winding up, with the result that they can attack transactions entered into or effectuated during the period beginning 20 March 2007 rather than 29 July 2007. The evidence reveals that there are good reasons for the liquidators to seek to establish the earlier relation-back day. In their report to creditors dated 25 February 2008, Mr Cussen and Mr Weston said they had identified a number of potential unfair preference payments totalling $840,836 during the relation back period, which they identified as the period from 29 July 2007 to 29 January 2008. They said that the relation-back period would be extended back to 20 March 2007 if the application for winding up made by the Chief Commissioner of State Revenue were to be successful and the administration were to be terminated. They said that their review of the Company's limited records in their possession had identified further potential unfair preference payments totalling $646,388 during the period from 20 March to 28 July 2007. 21 In his affidavit made on 28 February 2008 Mr Cussen confirmed the figures contained in the report and expressed his opinion that if the Court were to exercise its discretion to achieve the result that the relation-back day was 20 September 2007, there would be a better return for creditors of the Company because otherwise, the potential preference payments during the period from March to September 2007 would not be recoverable in the liquidation. In his further affidavit made on 2 May 2008, Mr Cussen updated the figures he had earlier presented and set out details of the possible preference payments during the March-September period. It appears that the total amount of payments from 20 March to 29 September 2007, identified by Mr Cussen as potential unfair preference payments, is about $728,000. 22 There is evidence before me that the solicitors for Mr Cussen and Mr Weston sent letters to persons who might be affected by making the relation-back day 20 September 2007. I am satisfied that adequate attempts have been made to notify all the affected persons. At the hearing before me on 5 May 2008 only one affected person sought leave to appear, namely Gary Cassim, a solicitor practising as Gary Cassim & Associates. He was a creditor of the Company who received payments during the period from March to September 2007, and is identified by Mr Cussen as a potential defendant in unfair preference proceedings. Leave was granted to Mr Cassim under the para 2.13 of the Supreme Court (Corporations) Rules 1999 and he appeared, represented by counsel, and submitted that the Court does not have the power to make the order contemplated by para 1(c). 23 Counsel for the applicants submitted that the Court should infer that the directors of the Company, Louise Jourdan and Leonard Reynolds, endeavoured to delay the making of a winding up order and caused the appointment of administrators so as to obtain a later relation-back day than would have been the case if a winding up order had been made promptly after the application for winding up was filed. In my opinion the evidence provides an adequate foundation for such an inference, and so I accept the submission. I take into account the period of delay of about four months from the time of filing the winding up application to the time of appointment of the administrators, and the fact that during the administration the directors did not put forward any deed proposal and did not supply a report as to affairs. Further, amongst the creditors to whom payments were made during the period from March to September 2007 were the following: · Ms Jourdan, one of the two directors, who received $79,209.32 during that period, and · Roussi & Associates, which received $92,974.99, the principal of that firm being the financial officer of the Company. 24 In my view it is an abuse of process for directors to use the voluntary administration procedure for the purpose of deferring the relation-back day and therefore potential recovery of unfair preferences, particularly when a director or officer of the company concerned stands to benefit from that deferral (see Blacktown City Council v McArthur Telecommunications, cited above, at [17]-[19]). The case is similar in some respects to St Leonards Property v Ambridge Investments, cited above. One of the objects of Part 5.3A, namely to produce a better return for the company's creditors and members than would result from immediate winding up, is thwarted by such conduct if it is successful. I am therefore persuaded of the desirability of achieving the outcome sought by the liquidators. The key question is whether I have the power to do so. 25 Two ways of achieving the outcome desired by the liquidators have been advanced, namely by order under s 447A(1), and by order under rule 36.17 of the Uniform Civil Procedure Rules (2005) ("the slip rule") vacating and replacing Barrett J 's orders. 26 The only provision relied on by counsel for the applicants as an authorisation for the order sought was s 447A. I have considered whether, in the alternative, s 1322 might be invoked but it seems to me inapplicable in its terms. There was no application to vacate or amend Barrett J's orders under the slip rule, but the matter was later raised with the parties by my Associate on my instructions, in the circumstances explained later. Section 447A(1) 27 Section 447A(4) authorises the application to be made, inter alios, by the company and any other interested person. In my view the liquidators of a company are interested persons for the purposes of making such an application, given their interest on behalf of creditors in seeking to pursue unfair preferences that would not be open to attack unless the relief is granted. 28 The liquidators seek an order under s 447A(1) affecting the definition of the section 513C day, or in the alternative, an order having the effect that the administration is taken to have commenced on the day of filing of the originating process for winding up. There are three problems with invoking s 447A(1) in those circumstances. 29 First, it is difficult to characterise the order sought as an order about how Part 5.3A (as opposed to Part 5.6) is to operate in relation to the Companies. The real difficulty for the liquidators in this case lies in the operation of ss 513A(b) and 513C, which are in Division 1A of Part 5.6 rather than in Part 5.3A. The real point of the application is to adjust the operation of those provisions. As far as I have been able to discover, Australasian Memory Pty Ltd v Brien (2000) 200 CLR 270 and the cases that have followed it have all been about some adjustment to the effect of a provision or provisions of Part 5.3A, rather than some other provision of the Corporations Act. Even in Gibbons v LibertyOne, cited above, where the effect of the orders was to relieve a liquidator of the obligation to convene a creditors' meeting under s 508, the orders themselves were about how a provision of Part 5.3A, namely s 446A, was to operate in relation to the particular company. 30 The alternative form of order proposed by the liquidators, namely an order deeming the administration to have commenced at the date of filing of the originating process for winding up, would not succeed in specifying precisely how Part 5.3A is to operate in relation to the Company. It would be an order creating the fiction that the directors had resolved to appoint administrators at a time some months before they in fact did so. Creating such a fictional event is different from adjusting the statutory provisions governing what has in fact occurred, and in my view is not authorised by s 447A(1). 31 Secondly, as I said in Gibbons v LibertyOne, cited above (at [35]-[37]), some observations of the High Court in Australasian Memory imply that s 447A(1) should not be used to alter accrued rights. The question addressed in the High Court was whether the section can be used to reinstate an administration, where to do so would interfere with rights that have accrued because the administration has previously come to an end, but the remarks of their Honours suggest a wider principle (at CLR 282). Here the making of a winding up order by Barrett J on 29 February 2008 had the effect of making those persons who had the benefit of unfair preference payments in the period from 20 March to 29 July 2007 immune from challenge by the liquidators under the voidable transactions provisions. An order made now, having the effect of backdating the relation-back day, would deprive those persons of their immunity. They have been given notice of the application for the order but even so, the High Court's observations suggest that the section should not be invoked to interfere with those vested immunities. 32 Thirdly, an order altering the section 513C day or the day of commencement of the administration is on its face applicable to past events, rather than how Part 5.3A is to operate in future. In Australasian Memory Pty Ltd v Brien, at 282, the High Court made observations to the effect that while the expression "how this Part is to operate" is an expression that looks to the future rather than the past, the temporal requirement is satisfied if the orders that are made have effect only from the time of their making; that is, they are orders with future effect, in respect of past matters or events. Applying those observations, I held in Gibbons v LibertyOne, cited above (at [34]), that it is permissible under s 447A(1) to make an order operating from the time it is made and having the effect of exonerating the plaintiff from the obligation to take action in the future (the obligation being the obligation of a liquidator to hold meetings of creditors under s 508). But in that case the order was forward-looking. An order that seeks to backdate the relation-back day, either directly or by deeming the administration to have begun earlier, is wholly backward-looking. It seeks to alter historical events, or the legal effect of those events. In my opinion that is not authorised by s 447A(1) because it is not an order about how Part 5.3A is to operate in relation to the Company. 33 For these reasons I have concluded that s 447A(1) is not available to the liquidators to achieve their objectives in the present case. The slip rule 34 After hearing argument it occurred to me that Barrett J's making of a winding up order, without first making an order terminating the administration, might be a "slip" which the Court can now rectify by vacation and replacement of his orders, in circumstances where: (i) para 1(a) of the interlocutory process sought an order, to be made prior to the winding up order, for termination of the administration under s 447A; (ii) there is (and was, on 29 February 2008) evidence before the Court justifying the making of such an order under s 447A(2)(b); (iii) Barrett J made orders having the effect of terminating the administration but he did not make the order sought in para 1(a); (v) had he made an order terminating the administration before ordering the winding up of the company, the company would not have been under administration "immediately before the [winding up] order was made", and therefore by virtue of s 513A(e) the winding up would be taken to have begun on the day when the winding up order was made, and therefore the relation-back day under para (a) of the definition would be 20 September 2007; (vi) Barrett J's purpose in adjourning determination of para 1(c) of the interlocutory process was to give the liquidators the opportunity to notify interested persons of their application, implying that when he made the adjournment order, Barrett J regarded the question whether the relation-back day was 29 January 2008 or 20 September 2007 as an open question still to be determined; (vii) however, by making the winding up order without first terminating the administration, he inadvertently determined, then and there, that the relation-back day was 29 January rather than 20 September. 35 On my instructions, my Associate wrote to the parties summarising the issue and inviting them to make submissions on these matters. Counsel for the liquidators informed me that his clients neither consented to nor opposed the making of orders under the slip rule and did not wish to be heard. Counsel for Mr Cassim informed me that after the hearing, his client had resolved all issues in discussions with the liquidators, and accordingly did not wish to make further submissions. 36 Having given the matter further consideration, without the assistance of submissions, I have reached the conclusion that there is no occasion for making an order under the slip rule. This is because para (v) above is incorrect, so that the position would not have been relevantly different if Barrett J had made an order terminating the administration before making an order for winding up. 37 In Commissioner of Taxation v Macquarie Health Corporation Ltd (1999) 17 ACLC 171, winding up proceedings were commenced and some months later, administrators were appointed to the company. Later the Court ordered both that the administration of the company end and that the company be wound up, but those orders were stayed until 10 March 1997. An issue was raised by the liquidator about the application of s 468, which applies to dispositions made after the commencement of the winding up. The question was about identifying the commencement of the winding up rather than about the relation-back day. The liquidator argued that the winding up commenced under s 513A(b) on the date of appointment of administrators, rather than the later date of the winding up order. The case was easy to determine on the facts, because the orders were stayed, and consequently at the time of making of the winding up order the company was still under administration because the order terminating the administration had not become operative (at 191 per Emmett J). 38 In obiter dicta, Emmett J considered the meaning of the words "immediately before" in s 513A(b), and also in ss 513A(c)(ii) and 513A(d). He contrasted the use of the words "immediately before" with the use of the term "when", which appears in ss 513A(a) and 513A(c)(i), inferring that "when" must be taken to mean something different from "immediately before" (at 189). He said that the contrast "confirms that the drafter of the Law was intending to recognise that the term 'immediately before' could permit an interval between the existence of a state of affairs and the making of a winding up order" (at 190). Later he said that s 513A(d) "clearly contemplates that there may be such an interval" and therefore the use of the same expression in s 513A(b) "would permit of there being some interval between administration ending and a winding up order being made", although it was unnecessary for him to decide how long an interval would be sufficient to preclude the operation of s 513A(b) (at 191). He said that if there had been no stay of the orders and the order for the termination of the administration had been pronounced before the winding up order, he would still have concluded that the company was under administration "immediately before" the winding up order was made (at 191). 39 Although these observations are obiter, they are considered pronouncements by a highly experienced judge in a corporations matter, where consistency and uniformity of interpretation are particularly important. Even though some steps in the reasoning may be open to further contention, my view is that another judge at first instance should follow and apply those remarks, and so I shall do so. Therefore if Barrett J had made an order terminating the administration before making an order winding up the Company, s 513A(b) would still have applied and so the relation-back day would still have been 29 January 2008. For the purposes of the issue I have to consider, the absence of an order terminating the administration is of no consequence. There is no occasion for applying the slip rule. Conclusion 40 I have reluctantly reached the conclusion that the relation-back day is 29 January 2008 rather than 20 September 2007, and the Court has no power to alter it. I say "reluctantly" because: · this conclusion will prevent the liquidators from seeking recovery, for the benefit of creditors, of payments of about $728,000 as unfair preferences; · out of this total amount, a substantial portion was paid to a director and a firm associated with the finance officer of the Company; · the evidence supports the inference that the directors of the Company used the voluntary administration procedure for the purpose of delaying winding up and deferring the relation-back period, and my decision means that they have achieved their purpose even though it was an abuse of process. 41 The facts of this case point to a need for law reform, in my view. There are at least two problems. First, s 513A(b) achieves the sensible result of "backdating" the time of the commencement of winding up, and hence the relation-back day, to the date of appointment of voluntary administrators, in a case where a company goes into administration but then later there are winding up proceedings and a winding up order is made. But that provision has an unfortunate application where the originating process for the winding up proceedings is filed before the administrators are appointed, for in such a case the relation-back day is only backdated to the time of appointment of the administrators, whereas if there were no intervening administration the relation-back day would be the date of filing of the originating process. Since the administration has ended once the winding up order has been made, the correct result in terms of policy should be that the relation-back day is determined by the commencement of the winding up proceedings rather than by the commencement of the administration. The anomalous outcome prevents the liquidators of the company from recovering, for the benefit of the creditors, in respect of unfair preferences and other voidable transactions that have taken place during the six months prior to the filing of the originating process for winding up but not during the six months prior to the appointment of the administrators. 42 Secondly, the present facts, when read in conjunction with Commissioner of Taxation v Macquarie Health Corporation, cited above, demonstrate another anomaly. Suppose a case where administrators are appointed after the filing of an originating process for winding up, and later a winding up order is made. Suppose also that there is a disposition of company property after the appointment of the administrators and before the winding up order, and that the disposition would be capable of being set aside under s 468 if it was made after "the commencement of the winding up". If s 513A(b) applies, so that the winding up is taken to have commenced on the day when the administrators were appointed, then the disposition can be set aside. But if s 513A(b) does not apply, the winding up will have commenced on the day when the winding up order was made, by virtue of s 513A(e), and the disposition will have taken place before the commencement of the winding up. Now suppose that, on the same facts, there have also been unfair preference payments within the six months prior to the filing of the originating process for winding up, but outside the six months prior to the date of appointment of the administrators. Those unfair preferences will not be recoverable by the liquidators if s 513A(b) applies, but they will be recoverable (by virtue of s 513A(e) and the definition of "relation-back day") if s 513A(b) does not apply. Thus, the application of s 513A(b) permits the recovery of the disposition of property but excludes the recovery of unfair preferences, and the position is reversed if s 513A(b) does not apply. It is hard to see any rationale for these outcomes. 43 I shall ask the Registrar to draw these anomalous results to the attention of the Commonwealth Treasury so that consideration can be given to the question whether legislative amendments are needed. 44 Finally, I note that counsel for Mr Cassim drew attention to s 532(2) of the Corporations Act, according to which a person must not, except with the leave of the Court, seek to be appointed or act as liquidator of a company if (inter alia) the person is a creditor of the company in an amount exceeding $5,000, or is an officer of the company (a term defined to include an administrator). He raised the question whether the liquidators needed the Court's leave under that provision in view of the fact that they previously acted as administrators. He informed the Court that Mr Cassim would not oppose the granting of leave nunc pro tunc, were it to be sought. I am not in a position to determine whether the provision applies, but if leave was considered necessary solely because of liquidators' prior role as administrators, and consequently an application was made to me, I would be disposed to grant it. **********

Chief Commissioner of State Revenue v Rafferty's Resort Management Pty Ltd

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