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[2017] FCA 313
Federal Court of Australia
2017-03-24
Yates J
Original judgment source is linked above.
THE COURT ORDERS THAT:
YATES J: 1 On 21 February 2017, I made orders that Simon John Thorn and Bradley John Tonks be appointed as provisional liquidators of the plaintiff, with the powers of a liquidator under s 477 of the Corporations Act 2001 (Cth) (the Act). At the same time, I granted leave to any person showing sufficient interest to move to discharge that order on 24 hours' notice: Kreab Gavin Anderson (Australia) Ltd, in the matter of Kreab Gavin Anderson (Australia) Ltd [2017] FCA 300 (my earlier reasons). That leave has not been exercised. 2 When the matter came back before me for a case management hearing on 20 March 2017, the plaintiff indicated that it wished to move for orders that day that it be wound up on the ground of insolvency (see s 583(c)(i) of the Act) and that Mr Thorn and Mr Tonks be appointed as liquidators. I adjourned the proceeding to 21 March 2017 to hear the application for those orders. On 21 March 2017, after receiving some evidence and the plaintiff's submissions, I adjourned the proceeding to today to enable the plaintiff to adduce further evidence dealing with the notification of creditors of the orders made on 21 February 2017 and of the plaintiff's intention to seek orders that it be wound up and that Mr Thorn and Mr Tonks be appointed as liquidators. 3 The following affidavits have been read in support of that relief: Bradley John Tonks, 16 February 2017; Simon John Thorn, 16 March 2017; Rhys Robert Graham, 16 March 2017; Simon John Thorn, 23 March 2017; and Dianne Maree Gray, 23 March 2017. 4 I also note that Mr Thorn and Mr Tonks have filed consents to act. 5 I am satisfied that it is now appropriate to make the orders that are sought. As I stated in my earlier reasons at [16], there is a clear case of insolvency. Moreover, the plaintiff has ceased to carry on business in Australia. This fact provides an independent ground on which a winding up order can be made in respect of the plaintiff as a Part 5.7 body. 6 The evidence establishes to my satisfaction that, on about 8 March 2017, the plaintiff's solicitors delivered a letter to the Australian Securities and Investments Commission (ASIC) which explained the background to the present winding up application, including the invalid appointment of Mr Thorn and Mr Tonks as administrators of the plaintiff, and then as liquidators of the plaintiff in a creditors' voluntary winding up. The letter enclosed a copy of the Originating Process and Mr Tonks' affidavit made on 16 February 2017 (including its exhibit) which had been read at the hearing on 21 February 2017. On 16 March 2017, ASIC replied by stating that it considered the matter as one properly left for the determination of the Court. It confirmed that it did not propose to intervene in the proceeding or to seek leave to appear at the case management hearing that had been appointed for 20 March 2017. 7 A similar letter, dated 7 March 2017, which enclosed a copy of the Court's orders made on 21 February 2017, was sent by Mr Thorn on his and Mr Tonks' behalf as joint and several provisional liquidators, to each creditor of the plaintiff known to them. The letter advised that the plaintiff would seek to be wound up on 20 March 2017 and "to ratify our appointment". There is evidence before me as to the steps taken to send that letter to the creditors and of the fact that no creditor has indicated an intention to appear. I should record that, when the matter was called outside the Court on 20 March 2017 and 21 March 2017, and today, there was no appearance by any creditor or other person seeking to intervene. 8 In light of the particular circumstances of this matter, I propose to dispense with the requirements of the rules in Div 5 of the Federal Court (Corporations) Rules 2000 (Cth) to the extent that those rules have not been complied with in the present case. I am satisfied that sufficient notice of the present application has been given to creditors who, as I noted in my earlier reasons, have already voted (albeit ineffectively) to appoint Mr Thorn and Mr Tonks as joint and several liquidators of the plaintiff. 9 Orders will be made accordingly. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates.