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[2010] NSWSC 1079
Supreme Court of NSW
2010-09-17
Barrett J
Original judgment source is linked above.
Background 1 On 16 September 2010, I made orders set out at in the appendix, indicating that I would give brief reasons at a later time, as I now do. 2 The need for the orders arose from the circumstance that Mr Free, a partner of Lawler Partners Limited Partnership, had given notice of his resignation from the firm while holding several insolvency appointments, in particular, appointments as liquidator in court-ordered windings up, appointments as administrator of deeds of company arrangement and appointments as liquidator in creditors voluntary windings up. 3 In each court-ordered winding up, Mr Free was the sole liquidator. In the deed of company arrangement and creditors voluntary winding up cases, he was one of two concurrent appointees. 4 In consequence of his resignation, Mr Free wished to relinquish the several appointments and to see other persons installed in his place. It was Mr Free's opinion that, because the work in the several administrations had been done within Lawler Partners and firm personnel other than himself were therefore familiar with them and the issues they involve, it was desirable that his replacement be a qualified person within Lawler Partners. The proposal 5 The proposal brought to the court was that (a) in each case in which Mr Free was liquidator in a winding up by the court, he should resign and the court should appoint Mr Tolcher of Lawler Partners in his place; and (b) in each case of deed of company arrangement or creditors voluntary winding up in which Mr Free was administrator or liquidator together with another member of the firm, matters should be re-arranged so that Mr Tolcher and Mr Tonks of Lawler Partners became the ongoing office holders. 6 The court had no reservation of principle about these proposals. There is a clear benefit to the respective administrations in ensuring continuity within the one firm: see Condon v Watson [2009] FCA 11; (2009) 174 FCR 314; Re A & C Supplies Ltd [1998] BCC 708. In cases of joint and several appointment, there is a clear benefit in having another member of the firm join with Mr Free's co-appointee whose appointment will continue. From a cost point of view, it is beneficial that what is essentially an administrative re-arrangement necessitated by Mr Free's retirement from the firm be effected through a short application to the court, even though some of the charges might have been effected through resolutions of creditors. 7 It was, however, necessary to give attention to some mechanical matters. Appointment as sole liquidator by the court 8 In the cases of sole appointment of Mr Free as liquidator in windings up by the court, the liquidator's ability to resign comes from s 473(1) of the Corporations Act 2001 (Cth): "A liquidator appointed by the Court may resign or, on cause shown, be removed by the Court." 9 The timing of the resignation is governed by rule 7.1 of the Supreme Court (Corporations) Rules 1999: "(1) A liquidator appointed by the Court who wishes to resign office must file with the Registrar, and lodge with ASIC, a memorandum of resignation.
(2) The resignation takes effect on the filing and lodging of the memorandum." 10 It is thus clear that the vacancy arising from resignation does not occur until the relevant notice has been filed with the regulator of the court and lodged with ASIC. Only then is there a "vacancy" as referred to in s 473(7): "A vacancy in the office of a liquidator appointed by the Court must be filled by the Court." 11 Mr Free had already signed the necessary memoranda of resignation when the matter came before the court. Each was dated 14 September 2010. On the basis of Mr Free's statement of his own position in his affidavit (that is, that he intended to complete his separation) and having regard to the approach taken to s 473(7) in decided cases (see, in particular, Re Wily [2003] NSWSC 1260; (2003) 49 ACSR 94; Re Vouris [2004] NSWSC 384; (2004) 49 ACSR 543; Re McGrath [2005] NSWSC 506; (2005) 54 ACSR 55; Dean-Willcocks; re Militto's Transport Pty Ltd [2006] FCA 1792; (2006) 61 ACSR 356; Emerton v Referral Marketing Services Pty Ltd [2009] NSWSC 738), it was seen as appropriate to make an order having immediate effect but expressed to fill the vacancy to arise upon completion of the rule 7.1 steps. Appointment as one of two administrators of a deed of company arrangement 12 I turn next to the deed or company arrangement cases. In each of those, as I have said, Mr Free held office as administrator of the deed together with Mr Tolcher. 13 As Lindgren J pointed out in Condon v Watson (above) at [96], s 449D(1) permits one of multiple administrators of a deed of company arrangement to resign and, upon such resignation, the remaining administrator or administrators will continue in office and may function accordingly. 14 Lindgren J was not required to address the question of replacing one of several deed administrators. Nor, it seems to me, does any provision of the Act deal with that matter. Section 449D(2) confers a power of appointment on the court where "no administrator of the deed is acting". That, of course, is not the case where one of several resigns leaving at least one other still in office. 15 I considered but rejected the possibility that s 449D(2) shows an intention that, where several persons are appointed as deed administrators and one later resigns, the other or others should carry on without being joined by anyone else so that, for example, if, as here, there were originally two and one resigns, the second is then forced to act alone. 16 Multiple appointments have practical advantages. Appointees able to act severally can divide tasks between them. A multiple appointment also takes care of unavoidable absences and can be the source of checks and balances that are beneficial to prudent administration. 17 I was therefore persuaded that the court should, through resort to s 447A, create an express power for it to replace Mr Free with Mr Tonks in the cases in question (so that Mr Tolcher and Mr Tonks were together deed administrators) and, having thus created the necessary machinery, exercise the power by appointing Mr Tonks in place of Mr Free. Appointment as one of two liquidators in a creditors voluntary winding up 18 In each of these cases, Mr Free was originally appointed together with another member of the firm (most often Mr Tolcher or Mr Tonks). The proposal brought to the court was that Mr Free should, in each case, be replaced by one of Mr Tolcher and Mr Tonks. 19 In each of these cases, the second original appointee would continue following any resignation by Mr Free. This, as Lindgren J pointed out in Condon v Watson (above), at [74] to [76], is the effect of s 530 of the Corporations Act as amended by the Corporations Amendment (Insolvency) Act 2007 (Cth). 20 There then remained, however, a question about how a second liquidator would be installed. Section 502 allows the court to make an appointment only where "no liquidator is acting". The problem was thus the same as that arising under s 449D(2) (see paragraph [14] above). 21 The solution was to proceed along the lines indicated in Re Vouris (above) by removing both existing liquidators under s 503 and appointing Mr Tolcher and Mr Tonks under the same section. This was on the basis that Mr Tolcher and Mr Tonks should be regarded as "another liquidator" when compared with, say, Mr Free plus Mr Tonks (the comparison is never with Mr Tolcher plus Mr Tonks); and that sufficient "cause shown" arises from the benefits and efficiencies outlined at paragraph [16] above. Compliance with s 539(1) 22 Section 539(1) requires a liquidator to lodge with ASIC accounts and a statement relating to the position in the winding up. The requirement applies regardless of the type of winding up: see s 513. The lodgement is to be made at intervals s 539(1) prescribes. 23 A person who ceases to act as liquidator must make a s 539(1) lodgment within one month after ceasing to act. In the case of a newly appointed liquidator, there must be a lodgment within one month after six months have elapsed from appointment. 24 In the cases of replacement of joint and several liquidators (paragraphs [18] to [21] above), application was made for a variation of the time for compliance with s 539(1). There was no like application in the cases in which Mr Free was sole liquidator. 25 The application for an order changing the timing requirements in the joint liquidator cases was made under s 1322(4)(d) of the Corporations Act. The application was on the footing that Mr Free and the original co-liquidator should not have to make a lodgment within one month after their removal but, rather, at the time at which their lodgment would have been due had they not been removed; also that the newly appointed liquidators (that is, Mr Tolcher and Mr Tonks) should be subject to that same deadline, rather than having to wait for six months from appointment and then lodge within the following period of one month. 26 The first aspect entails, in s 1322(4)(d) terms, "extending the period for doing any act, matter or thing … under this Act"; the second involves "abridging the period for doing such an act matter or thing". Power for the court to make the adjustments was therefore seen to be exercisable, subject to s 1322(6)(c) that requires the court to be satisfied that the extension or abridgment of time sought will not claim substantial injustice to any person. 27 Because in the vast majority of cases the second of the original liquidators will continue despite Mr Free's departure, there can be reasonable assurance of on-going attention to the matters relevant to s 539(1) compliance. This is emphasised by the fact that all office holders have been part of the one firm. For the original liquidators to be required to make a lodgment within one month after ceasing to hold office and for the new appointees (of whom one is, in reality, a continuing liquidator in all but a very few cases) to go on to a six monthly cycle different from that already applying will involve unnecessary work for no apparent benefit. 28 The desirable course was seen to be that the existing cycle be maintained, with all of Mr Free, the existing co-liquidator and the new appointee reporting at the end of the six months period now current and the two new liquidators then continuing on the six monthly cycle from that point. 29 There is no basis on which this can be seen to entail "substantial injustice" to anyone. Appendix
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Condon
Watson
Condon v Watson [2009] FCA 11; (2009) 174 FCR 314 Dean-Willcocks; re Militto's Transport Pty Ltd [2006] FCA 1792; (2006) 61 ACSR 356 Emerton v Referral Marketing Services Pty Ltd [2009] NSWSC 738 CASES CITED : Re A & C Supplies Ltd [1998] BCC 708 Re McGrath [2005] NSWSC 506; (2005) 54 ACSR 55 Re Vouris [2004] NSWSC 384; (204) 49 ACSR 543 Re Wily [2003] NSWSC 1260; (2003) 49 ACSR 94
(2009) 174 FCR 314