Multi-Core Aerators Pty Ltd v Dye & Rennie [1999] VSC 205

41. At the meeting, Mr Mulcahy stated that it was the belief of Multi-Core Aerators Limited that moneys paid to Mr Banks by Deere were received by Mr Banks in a trust capacity. Mr Mulcahy stated, further, at the meeting that it had been the intention of Multi-Core Aerators Limited to have Mr Banks examined by a court in order to investigate the matter and, in addition, that Mr Mulcahy had served a statutory demand and in the ordinary course would have issued winding up proceedings on 10 July 1998 save that Mr Banks had entered into voluntary administration. Mr Mulcahy stated at the meeting that Mr Banks adopted that course because he believed that the administrator would be more lenient in pressing any claims against him. Mr Mulcahy moved a motion that the administrators be removed and the motion was lost, Mr Mulcahy on behalf of the applicant, Multi-Core Aerators Limited being the only vote in favour of the motion.

44. After the meeting Mr Mulcahy was informed by one David Newman, the solicitor for the directors of the company that details of payments by Deere and the surrounding circumstances were privileged information. Mr Newman allegedly informed Mr Mulcahy that there would not be any discovery of documents relating to that transaction as part of the administration. Subsequently, Mr Mulcahy telephoned a number of the creditors expressing his concern that they had given a proxy to Mr Dye. Mr Mulcahy formed the view that few of those creditors would press the administrators in any way contrary to the course of action they proposed.

47. At a second creditors' meeting on 27 July 1998 Mr Mulcahy was present again. He read out an extract of the judgment of Mandie, J in the other proceeding where the learned judge was allegedly critical of the arrangements made by Mr Banks with Deere. After reading the extract from the judgment, Mr Mulcahy suggested to Mr Banks at the meeting that the real reason for the failure of the company was the fact that it had nothing to sell once the Deere transaction was made. Mr Banks allegedly refused to answer any questions. Mr Mulcahy put to Mr Banks a question directed at ascertaining ownership of certain intellectual property rights disposed of to Deere. Mr Banks allegedly refused to answer the question. Mr Mulcahy enquired then as to how much money was paid for those rights. Mr Banks allegedly did not reveal the amount. Discussions ensued at that point between the parties present at the meeting as to the administrators' remuneration it being proposed that the company would be placed in liquidation pursuant to s.439C of the Corporations Law and the present administrators would become joint and several liquidators. After some further discussion and agreement Mr Dye closed the meeting.

50. By letter dated 29 July 1998 the liquidators informed Mr Mulcahy that their next report would not be before 29 November 1998. As a result, Mr Mulcahy wrote to the liquidators on 12 August 1998 expressing concern at the proposed delay until November 1998 for further report and, further, enquiring as to the steps to be taken by the liquidators with respect to the Deere transaction. Mr Mulcahy did not receive a response and, consequently, sent reminder letters and faxes throughout the month of August 1998.

53. In the interim, Mr Mulcahy ascertained that four days before the appointment of the administrators, that is, 29 June 1998 the company assigned its rights in the trade mark, "Multi-core" (the "trade mark"), Multi-core Aerators (Aust) Pty Ltd, a company formed on 26 June 1998. Mr Mulcahy drew these matters to the attention of the liquidators in his August 1998 correspondence. Eventually, a response was received from Mr Dye by letter dated 3 September 1998 in which he stated that he would deal with the matters raised by Mr Mulcahy during the course of his investigations into the affairs of the company. On 21 October 1998 Mr Mulcahy wrote to Mr Dye expressing his concern as to whether the liquidators proposed to seek legal advice in relation to the Deere transaction including the sale of the trade mark, enquired as to what further steps Mr Dye proposed to take in relation to those matters and whether those transactions gave rights to claims against third parties. Prior to the institution of these proceedings, Mr Mulcahy did not receive a specific response to his letter of 21 October 1998. However, a circular letter was sent by the liquidators to the creditors dated 29 December 1998 indicating that legal advice would be sought with respect to possible claims against third parties.

56. As a result of the alleged failure of the liquidators to investigate the affairs of the company, in particular, pursue the Deere transaction and the sale of the trade mark the present application was instituted on the basis that the liquidators are not acting in the best interest of creditors and ought, therefore be removed. The application was issued on 28 January 1999.

59. After the issue of the application Mr Dye filed an affidavit in opposition. In addition to the matters set out already, he explained the delay in the completion of the investigation of the company on two grounds, firstly, the lack of co-operation of the company's former accountant and general difficulties in completing the investigation.

62. In the affidavit, Mr Dye described the realisation of the assets of the company, the unsecured creditors, his investigations of the Deere transaction and the assignment of the trade mark, his future intentions with respect to the pursuit of those matters and the overall progress of the liquidation of the company on the basis of his experience as a liquidator.

67. Mr Dye described that since their appointment, the liquidators have sold plant and equipment to the value of $46,705 and which sum was achieved as the result of the co-operation of Mr Banks. The sale of the plant and equipment was made difficult by the fact that it was located at other premises and the landlord initially refused to release that plant and equipment. So far as the book debts of the company are concerned they had a value of $20,475. Mr Dye deposed on affidavit that it took him until 21 October 1998 to realise the book debts as they mostly comprised small debtors. He deposed that he received extensive assistance from the directors of the company and believed that the recovery of book debts had been as successful as it has as a result of the assistance of the directors of the company. Mr Dye deposed, further, that he has sold stock on hand and yielded the amount of $1,520. He identified a bond paid by the company with its landlord of a value of $19,604 of which Mr Dye has realised $4,604 and requested the landlord to account to him for the balance of the bond. Mr Dye ascertained that the only remaining assets of the company are any claims which it may have against some or all of its directors, the company Multi-Core Aerators (Aust) Pty Ltd and any other third party.

72. Mr Dye deposed that the liabilities of the company have been identified to the amount of $12,036 being for outstanding wages, holiday pay, long service leave and superannuation, amounts owed to the Australian Taxation Office for the superannuation guarantee charge of the company and wages owed by the company to directors and family members.

75. He deposed that the unsecured creditors of the company are and have been dealt with, as follows:

(1) The sum of $131,929.23 owed to the ANZ bank; Mr Banks paid the bank on behalf of the company and took a formal assignment of the ANZ claim and provided a personal guarantee to that bank; (2) The sum of $63,807.06 owed to the Commonwealth Bank of Australia and which amount has been paid by Mr Banks and who has taken a formal assignment from the Commonwealth Bank of its claim against the company; (3) Mr Banks has paid the sum of $3,843.60 to the former solicitors for the company, Rossi Ryan and Raingi; (4) There was a further amount of about $3,500 owed by the company to its accountant. Apparently Mr Banks has paid this amount also. (5) There is a sum of $2,626.90 outstanding to the Australian Tax Office by way of group tax. (6) The sum of $402,208.45 owing to the applicant pursuant to the judgment of Mandie J delivered on 15 May 1998. (7) The sum of $14,593 is owed to Mrs Banks as an employee. (8) Mr Banks, on the basis of accounts paid on behalf of the company is shown on the company records as a creditor in the sum of $724,817.84. Mr Banks has a joint and several liability with the company for the applicant's costs in the other proceeding in the sum of $203,127.14. Discussions have occurred between the applicant and Mr Banks whereby Mr Banks has offered to settle the claim for costs. The amount that Mr Banks ultimately pays with respect to costs will be added to his claim as a creditor of the company.

3. The liquidators' investigations of possible claims

81. Mr Dye has deposed that he has investigated the applicant's claims against the company and formed the view that matters were not as clear cut as suggested by Mr Mulcahy in his affidavit and correspondence with Mr Dye. Mr Dye deposed that he intended to investigate all sources prior to making any recommendations to creditors about the prospects of success, recovery or the amount of funding required to pursue any claims. In addition, Mr Banks has informed Mr Dye of legal advice that Mr Banks and the company may have claims against the applicant.

84. With respect to the complaints of Mr Mulcahy concerning the trade mark, Mr Dye has investigated this matter by way of making enquiries of Mr Banks. The position is that there is a dispute between the applicant and the company with respect to the trade mark including proceedings pending in the United Kingdom.

87. On balance, Mr Dye deposes that as presently informed the applicant as a substantial creditor of the company urges the liquidators to pursue a claim against the directors of the company. On the other hand the directors of the company are urging the liquidators to pursue a claim against the applicant.

4. The liquidators' planned action in the future

92. Mr Dye deposed that he has conducted thousands of liquidations. On the basis of his experience the proper course is to realise the realisable assets of a company and pay priority creditors' claims and thereafter to review the funds at the liquidators' disposal before considering other claims. It had taken Mr Dye at the time of the commencement of this proceeding approximately six months to realise the realisable assets and finalise the priority claims of priority creditors. On the basis of his experience, Mr Dye considers that such a period is not unreasonable. He deposed that other than the claims between the applicant and the company and vice versa the outstanding matters in the liquidation are settlement of the remainder of the bond due to the company from its landlord and the finalisation of claims against the company by employees, the Australian Tax Office, Mr Banks and the applicant. He deposed that as matters stand and if such contingent claims were not pursued, Mr Dye could finalise the liquidation and pay a dividend of approximately $0.02 in the dollar to creditors. If this situation were to eventuate the liquidators would have an obligation under s.533(1)(c) of the Corporations Law to lodge a report with ASIC.

95. Mr Dye deposed, further, that he has completed the reports which he is obliged to complete under the Corporations Law and interviewed the directors of the company several times. At all times such directors have been co-operative. He deposed that he circulated a letter to creditors on 29 December 1998 wherein it was contemplated that the liquidators would expend the funds available to seek legal advice as to whether the company had any prospects of claim against any parties. As matters stand Mr Dye does not consider there would be any point in holding a further meeting of creditors due to difficulties in personalities between creditors. However, he deposes that if such a meeting was requested he would accede to such request.

98. Significantly, Mr Dye was not challenged as to any of the matters in his affidavit.

101. It is apparent from the affidavits of Mr Mulcahy and Mr Dye that the area of contention between the liquidators and the applicant is the issue of the investigation by the liquidators of the Deere transaction, the sale of the trade mark and the role of Mr Banks in these matters. The other significant matter to arise from the affidavits is that the applicant and Mr Banks are the two major creditors of the company: the applicant in the sum of over $400,000 and Mr Banks in the sum of over $700,000.

104. Insofar as it is suggested that the liquidators did not take any steps or any genuine steps in the liquidation until the present application was issued, I note that in an affidavit sworn by Geraldine Dann, the solicitor for the respondents in the present application, she deposed that a course of correspondence was exchanged between the applicant's solicitors and the respondent's solicitors. It is apparent from that correspondence that the liquidators made a number of genuine attempts to appease the concerns of the applicant and to resolve the matter in a prompt, expeditious and economical way. In this respect, as early as 18 February 1999, the solicitors for the respondents offered to hold a creditors' meeting as soon as practicable to ascertain creditors' attitudes to the taking of further steps in the liquidation, including the conduct of public examinations under the Corporations Law, the pursuit of claims which may be open to the company and the consideration of the provision of indemnities to the liquidators by creditors in the pursuit of such claims. The offer of the liquidators was greeted by a refusal and an assertion that the potential claims against Mr Banks and Multi-Core Aerators (Aust.) Pty. Ltd. were "obvious".

107. However, the liquidators did not acquiesce, rather, they instructed solicitors, Cornwall Stodart, to provide advice to them concerning possible claims available to the company. As a consequence, those solicitors wrote on 17 March 1999 to the applicant's solicitors requesting a copy of any memorandum of legal advice that the applicant had received and which would support the pursuit of claims on behalf of the company. The applicant responded by proposing a public examination of Mr Banks and other persons associated with Multi-Core Aerators Pty. Ltd. by counsel nominated by the applicant and that the applicant have effective practical control of that examination. The applicant offered to fund the public examination and any subsequent action by the company against its former directors or entities. By letter dated 14 April 1999 the solicitors for the respondents rejected the proposal. They pointed out that the liquidators considered themselves to have an obligation to act impartially in the conduct of the winding up of the company's affairs and that to do otherwise would not fulfil that duty. Further, the solicitors pointed out that the substantial creditors of the company were the applicant and the directors. Arising from the reasons for judgment of Mandie J, the correspondence between the parties and events observed by the liquidators at the creditors' meeting it is apparent that there is and has been for some time substantial hostility between the two camps. The solicitors advised that after a comprehensive review of the material before them they had recommended to the liquidators that subject to funding, the liquidators publicly examine Mr Banks, the company's accountant and the patent attorneys responsible for lodging patent applications. The solicitors pointed out that the cost of such examination would be beyond the funds available to the liquidators. Furthermore, it was pointed out that the defence of the present applicant has been and would continue to be a substantial drain on the resources available to the liquidators. It was further stated in the solicitors' letter that in the event that the public examinations yielded information that supported the institution of possible proceedings against directors the estimated cost of such litigation would be at least $100,000 together with an additional contingent liability for costs in the event of losing such proceeding in the order of $70,000. As a consequence, on behalf of the liquidators it was put that they were prepared to examine Mr Banks provided funding was received from the applicant but without the attachment of conditions. It was clearly stated in correspondence that in the absence of the applicant agreeing to fund the cost of the examination the liquidators would have no funds to conduct a public examination of Mr Banks.

110. In the correspondence, attention was drawn to the reasons delivered by Mandie, J on 15 May 1998 in the other proceeding. It was suggested on behalf of the liquidators that the matters concluded by Mandie, J in his reasons prima facie demonstrated that the applicant was selling spare parts not obtained from the company in breach of the distributorship agreement found to exist in the other proceeding between the company and the applicant. The liquidators sought an explanation from the applicant as to this apparent breach of the term of the distributorship agreement. In a letter dated 19 April 1999 the applicant's solicitor attempted to explain the position with respect to the sale of spare parts. Whilst it could not be said on its face to contribute substantially to the dispute between the parties it was a further factor that the liquidators took into account in defending this proceeding.

113. I turn now to apply the relevant legal principles to the facts before me.

116. Section 503 of the Corporations Law provides that upon cause being shown the court may remove a liquidator and appoint another liquidator. It is a well established principle that orders are made under s.503 where it is considered in the best interest of the liquidation to do so (see Commissioner for Corporate Affairs v Harvey [1980] VicRp 64; (1980) VR 669, 696; [1980] VicRp 64; (1979) 4 ACLR 259 and City & Suburban Pty Ltd v. Smith as liq. of Compac (Aust) Pty Ltd (in liq) [1998] FCA 822; (1998) 28 ACSR 328 at 336.) Personal misconduct or unfitness does not have to be shown. Bowen, L.J. in Re Adam Eyton Ltd.; Ex parte Charlesworth (1987) 36 Ch.D. 299 at 306, said:

"... fair play to the liquidator himself is not to be left out of sight, but the measure of due cause is the substantial and real interest on the liquidation."

120. O'Donovan in The Law of Company Liquidation, 3rd ed., at 229 states:

"Those who assert that the liquidator should be removed are under a duty to establish at least a prima facie case that this is for the general advantage of the persons interested in the winding up, and the onus of proof will not be easy to discharge if the liquidator has become well acquainted with the business and affairs of the company, or the process of winding up has almost reached completion".

124. The requirement is that the liquidator be and be seen to be independent and impartial: see Re Allebart Pty. Ltd. (1971) 1 NSWLR 24 at 28 where Street, J held that there was a need for a liquidator to not yield to "partisan consideration" and to be on guard so as not to "compromise his position of independence and impartiality in all respects in the discharge of his functions as an officer of the court administering the winding up of a company." The observations of Street, J are applicable to a liquidator in a creditors' voluntary winding up. (See Ultra Tune Australia Pty. Ltd. v. McCann & Anor. [1999] VSC 58; (1999) 30 ACSR 651, 672).

127. In Commissioner for Corporate Affairs v. Harvey, supra, at 696, Marks, J observed:

"When a winding up occurs, the financial outcome for creditors and contributories is dependent, amongst other things, on honest administration. It is trust which those persons are obliged to place in the liquidator to preserve the assets and act faithfully and fairly that defines the weight of the duties owed and the strictness with which his conduct must be considered by the court."

131. Turning to the first ground of the application, the applicant complains that the liquidators took from July until October to complete the realisation of the assets of the company and thereafter from October 1998 until late January/early February 1997 took no or virtually no other steps in the liquidation until this proceeding was instituted. In essence, the applicant complains that it was the commencement of this proceeding that geared the liquidators into action.

134. Mr Dye on behalf of the liquidators refutes the allegation. He states on the basis of many years of experience involving many liquidations that there has been nothing particularly unusual, untoward or delayed with respect to the conduct of the liquidation to date. Whilst it might be said that there was some delay of a few weeks between the appointment of the liquidators in July 1998 and the completion of the realisation of assets in October 1998 part of that delay can be explained by way of the lack of assistance and co-operation from the former accountant of the company. On the basis of the evidence before me it cannot be said that the liquidator was dilatory in the conduct of the liquidation up until the end of October 1998. I move next to the issue of whether there was any delay during the period between October 1998 and the present. This consideration involves, in particular, consideration of whether it was in fact the institution of this application that geared the liquidators into action. Mr Dye has stated in his affidavit that it is usual in his experience for a liquidator to realise the assets of the company before proceeding to prosecute claims on behalf of the company. In any event, prosecution of claims involves an analysis of the alleged claim, consideration of the prospects of success of such a claim if instituted, the location or ascertainment of funds to support the commencement of litigation. I am satisfied on the basis of Mr Dye's affidavit that he has embarked on this course. It is apparent from the description of the potential claims referred to by Mr Mulcahy in his affidavit on behalf of the applicant and as further described by Mr Dye in his affidavit that the disputes relating to the Deere transactions are complex. There is a further complex issue namely, the sale and utilisation of the trademark. On the basis of the evidence before me, in particular, the affidavit of Mr Dye it is apparent that the liquidators have had to investigate complex factual circumstances, obtain legal advice and consider their position. The position of the liquidators has been exacerbated by the fact that funds of the company have to a large extent been taken up with the defence of the present application.

137. Having considered the published reasons of the learned judge in the other proceeding together with a description of the events relating to the Deere transaction as described by Mr Mulcahy I am satisfied that it was reasonable for the liquidators to not rush into the institution of any claims against the directors or any other third party on behalf of the company. It follows that I am satisfied that there has been nothing unreasonable or untoward in the conduct of the liquidators of the liquidation of the company with respect to the investigation of the possible claims concerning the Deere transaction and the sale of the trademark.

140. On the basis of the evidence before me I cannot be satisfied that the applicant has made out a prima facie case that the liquidators have failed to properly investigate the Deere transaction and the trademark issue. I am satisfied that they have taken the matter as far as they can and insofar as there may have been any delay such delay has largely been brought about by the distraction caused to the liquidators by this application itself. There is the further significant issue that the two protagonists in potential claims are the two remaining substantial creditors of the company, namely, the applicant and Mr Banks. The liquidator has properly approached all the circumstances of the matters relating to the company in such a way as not to yield or appear to yield to partisan considerations in accordance with the warning issued by Street, J in Re Allebart Pty. Ltd., supra, 28. Furthermore, in accordance with the observations of Marks, J in Commissioner for Corporate Affairs v. Harvey, supra, 696 the liquidators in the present matter have thus far conducted their administration and liquidation on an honest basis. They have done so in a manner such as to realise and preserve the assets of the company and acted faithfully and fairly given the interests of the two camps. There has been no suggestion throughout the conduct of the application before me of personal misconduct, bias or unfitness on the part of the liquidators.

143. Ultimately, the matter upon which I must be satisfied is that it would be in the best interests of the liquidation of the company to order the removal of the liquidators. As matters stand I am not so satisfied. Furthermore, I form the view that on the basis of the evidence before me it would be potentially damaging to the conduct of the liquidation if the liquidators were removed. They have resisted the urgings of the applicant to adopt a particular stance. The course of correspondence between the solicitors for both parties since the commencement of this proceeding bears out in my view the responsible and objective position that the liquidators have endeavoured to maintain. Clearly there has been acrimony between the applicant on the one hand and the company and the directors on the other hand. So much is borne out by the time that matters concerning the company have occupied this Court, in particular, in the other proceeding. I cannot be satisfied that the applicant has shown that there is any real risk that the liquidators would be unable to act impartially or objectively in relation to the affairs of the company including any conduct by the liquidators themselves in their capacity as either administrators or liquidators. (See Tracker Software International Inc. v. Smith (1997) 24 ACSR 644.)

146. In Re National Safety Council of Australia, Victorian Division [1990] VicRp 2; [1990] VR 29, the Full Court, at 34, cited with approval the observation in McPherson on Company Liquidations, 3rd ed., 209 that the guiding principle in the appointment of a liquidator is "that he must be independent, and must be seen to be independent". The Full Court went on to observe that circumstances can arise such that the relationship between the parties at a critical time might be such that a liquidator could be put in a position where his independence might be open to challenge and that a liquidator should not placed in such a position. The Full Court observed, at 35, that the liquidator must "be seen to be independent of any matter which his duties as liquidator may require him to investigate ... the point is that the liquidator must necessarily be free to investigate the relationship just as he would be able to investigate any other relationship between consultants to the company and the company". In Advance Housing Pty. Ltd. (In Liq.) v. Newcastle Classic Developments Pty. Ltd. (1994) 14 ACSR 230 Santow, J observed (at 234):

"In my judgment, the correct balance is struck by permitting a liquidator to act as such even if there be a prior involvement with the company in liquidation, provided that involvement is not likely to impede or inhibit the liquidator from acting impartially in the interests of all creditors or be such as would give rise to a reasonable apprehension on the part of a creditor that the liquidator might be so impeded or inhibited. In short the question should be whether there would be a reasonable apprehension by any creditor of lack of impartiality on the liquidators' part in the circumstances, by reason of prior association with the company or those associated with it, including creditors, or indeed any other circumstance."

150. I am satisfied in the present matter that the conduct of the liquidators during their time as administrators and since their appointment as liquidators of the company cannot be subject to the attack of an allegation of impartiality. However, there is the remaining factor described by Santow, J in Advance Housing of "any other circumstance".

153. In some respects, a similar basis or ground was contemplated by Mandie, J in Tracker Software (at 649) where the learned judge observed:

"Whatever one might infer or suspect about the motives of the plaintiff in bringing this application, it seems to me that the actual material produced raises a case for investigation, and puts the defendant in an impossible situation. It seems to me that he cannot, having regard to these allegations, be expected to act or at least appear to act objectively and impartially as liquidator, and the creditors of this company are entitled to nothing less. I ask myself that harm can be done, in any event, if another person is appointed as liquidator. No doubt, there will be some costs involved to the company and to creditors in another person familiarising himself with the affairs of the company. But that, I do not think, is a factor which should outweigh the other matters to which I have referred. Apart from that, if the defendant has acted properly., and if his commercial judgment was reasonable, then he has nothing to fear from another registered liquidator being appointed as liquidator of this company. That liquidator should be, I think, a person named by the Prothonotary, rather than any person selected by the plaintiff in order to ensure that the choice is above reproach and on a random basis from the Prothonotary's list. In my view, in the interests of creditors the liquidator ought to be removed. There is obviously a great deal of feeling and rancour between these parties, and I think that provides all the more reason why there should be a person appointed as liquidator of this company who has none of the baggage of past disputes, who has no complaint one way or other about the costs and the time and the trouble and the worry that has been incurred by his predecessors in previous litigation, and simply takes on the task afresh of looking at the affairs of this company and deciding what ought to be done."

157. Whilst it might be said that in the present matter there would be little harm done if another person was appointed as liquidator there would be costs involved for the company and to the creditors in another person taking over the liquidation. As observed by Mandie, J in Tracker Software, such a factor should not outweigh concerns of lack of objectivity and impartiality. However, unlike the circumstances in Tracker Software no case has been made out by the applicant to support an assertion that there is a case for investigation against the liquidators. I observe that the conduct of the liquidation to date, essentially because of the conduct of the applicant, has been difficult. As was the case in Tracker Software, (see the observation at 649), there is a great deal of feeling and rancour between the parties but the ill feeling and rancour to the extent that it does exist has emanated from the applicant. Nevertheless, that reason alone together with all the circumstances of this matter do not lead me to be satisfied that it falls within the category referred to by Santow, J in Advance Housing of "any other circumstance". It might be said that the other circumstance is the extent of feeling and rancour between the applicant and the liquidators (although largely at the making of the applicant) so that the liquidators bear the "baggage of past disputes" referred to by Mandie, J in Tracker Software, at 649. However, in my view it is not sufficient that a court remove a liquidator merely because of levels of feeling and rancour between parties especially where the hostility has at all times emanated from the party seeking the removal of the liquidator. To do so would provide a creditor with an opportunity to manipulate the liquidation of the company. In my view to accede to the application of the applicant in the present matter would be to disregard the principle that the onus of proof borne by an applicant will not be easily discharged if the liquidator has become well acquainted with the business and affairs of the company and/or the process of winding up has almost reached completion (see Advance Housing, supra, 233; also, McPherson, Law of Company Liquidation, ibid 227-8).

160. The facts before me do not establish a prima facie case for the removal of the liquidators and, further, do not discharge the onus of proof borne by the applicant such as to warrant the removal of the respondents as liquidators of the company. It follows that the application fails.