Plaintiff v Defendant

1. This judgment was delivered on an ex tempore basis on 27 June 2025 and has been edited to correct infelicities of language and to include headings, complete references and citations. The substance of what was said has not been changed.
2. The plaintiff, Laura Jean Treloar, is the executor of the deceased estate of Thomas Stanbury Raymond ('deceased'). The deceased was the sole director and shareholder of Sun Sign Pty Ltd ('company'). The plaintiff seeks to wind up the company pursuant to s 461(1)(a) of the Corporations Act 2001 (Cth) ('Act') on the basis that the company has by special resolution resolved that it be wound up by the Court or, alternatively, pursuant to s 461(1)(k) of the Act on the just and equitable ground. However, under s 462(2) of the Act, only certain persons may bring such an application, including the company, a creditor or a contributory. Does the plaintiff executor have standing to apply for the company's winding up?

1. The company was incorporated on 9 May 1981 and carried on the business of providing signwriting retail services. On or around 22 September 2022, the late Mr Raymond sold the assets, but not the shares, of the company pursuant to a written agreement. The deceased then died on 8 January 2023. He left a will dated 14 November 2017 which does not specifically deal with any bequest of the shares in the company. On 11 December 2023, the plaintiff was granted probate of the deceased's will.
2. There is no current director of the company and the company no longer trades. However, the deceased is still recorded in an extract from the Australian Securities and Investments Commission ('ASIC') as the company's sole director and holder of all 1226 ordinary shares in the company.
3. In performing her duties as executor, the plaintiff has corresponded with the former accountant of both the company and the deceased to discuss aspects of the deceased's estate. In doing so she has obtained a copy of the company's constitution ('constitution') and the company's financial statements for the year ending 30 June 2022 (which were apparently the last set of financial statements prepared for the company). The financial statements show the company incurred a net loss of $32,521 and had a net deficit of assets of $29,365 for the 2022 financial year. A copy of the company's draft tax return for the 2022 financial year also recorded a loss of $31,098. The plaintiff has also obtained a copy of a bank statement for the company in respect of an overdraft facility with the National Australia Bank, which shows a $24,037.18 debit as at 30 August 2024. The plaintiff's solicitor has attempted to contact the former accountant of the company to discuss its affairs and to inquire as to the status of any outstanding tax returns, but has not received a response.
4. In light of these matters, the plaintiff has formed the view that the company may be insolvent. She wishes to take steps to wind up the affairs of the company. However, because she is unable to definitively determine whether or not the company is solvent, she is not prepared to be appointed as director of the company to convene a general meeting of members under cl 19.1 of the constitution in order to appoint a liquidator of the company pursuant to s 495 of the Act. Accordingly, on 7 June 2025, she purported to pass a resolution as sole shareholder of the company, pursuant to s 249B of the Act, that the company be wound up by the Court and the Court appoint a liquidator ('purported resolution').

1. The plaintiff made her application by originating process filed on 11 June 2025. Her application is supported by her affidavit affirmed on 11 June 2025 and written submissions of the same date. On 25 and 26 June 2025, Matthews J made orders pursuant to r 77.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) and r 16.1(3) of the Supreme Court (Corporations) Rules 2023 (Vic), that the proceeding be referred to an Associate Justice for hearing and determination. Earlier today the plaintiff obtained a consent to act as liquidator from Kylie Maree Wright.
2. During the hearing, the plaintiff sought to amend her originating process seeking ancillary relief, including under ss 1072E and 175 of the Act (provisions to which I return).

Standing to make winding up application under s 462(2) of the Act

The Court may order the winding up of a company if:

(a) the company has by special resolution resolved that it be wound up by the Court; or

(k) the Court is of opinion that it is just and equitable that the company be wound up.

(2) Subject to this section, any one or more of the following may apply for an order to wind up a company:

(a) the company; or

(b) a creditor (including a contingent or prospective creditor) of the company; or

(c) a contributory;

(d) the liquidator of the company;

(5) Except as permitted by this section, a person is not entitled to apply for an order to wind up a company.

1. The plaintiff submits she has standing to make the winding up application on two bases. First, she submits that while she is not a director of the company, as executor of the deceased's estate, she nevertheless has standing under s 462(2)(a) to bring an application in the name of, and on behalf of the company. In this regard, the plaintiff relies on the case of Hassan v Image Nominees Pty Ltd (in liq),[1] in which Beach J recognised provisional liquidators could bring a winding up application under s 461(1)(k) in the name of, and on behalf of, the companies of which they were provisional liquidators.[2]
2. I do not accept the plaintiff has standing under s 462(2)(a). A provisional liquidator is a liquidator appointed with a temporal qualification[3] but is nevertheless given authority as an external administrator and officer of the company. Under Div 2 of Pt 5.4B of the Act, the powers of a provisional liquidator are derived from various sources, such as the legislation itself (including Schedule 2, being the Insolvency Practice Schedule (Corporations)), the Corporations Regulations 2001 (Cth), the rules of the Court that appointed him/her, and the order of appointment. Those powers include the power to carry on the company's business (see s 472(4)(a) of the Act). By contrast, an executor of a deceased estate does not have broad authority to act in the name of, or on behalf of, a company in respect of which the deceased was a director and/or shareholder. Section 201F(2)(a) of the Act essentially provides that if a company's sole director and shareholder dies, then the deceased person's personal representative or trustee can appoint a person as director of the company. Under s 201F(4) of the Act, the personal representative or trustee can appoint themselves as a director. Here, the plaintiff has deliberately not taken the step of appointing herself as the new director of the company. Unless and until she does so, she cannot act in the name of, and on behalf of, the company, including by bringing the present application.
3. Second, the plaintiff contends that she has standing under s 462(2)(c) as a contributory. The term 'contributory' finds definition in s 9 of the Act and includes, in relation to a company (other than a no liability company), 'a person liable as a member or past member to contribute to the property of the company if it is wound up'. In addition, s 231 of the Act essentially provides that a person is a member of a company if they are a member of the company on its registration or agree to become a member of the company after its registration and their name is entered on the register of members.
4. There is no question the deceased was a contributory within the meaning of the legislation. The real issue is whether the plaintiff now stands in his shoes. In this regard, the plaintiff refers to s 528 of the Act which is in the following terms:

If a contributory dies, whether before or after being placed on the list of contributories:

(a) his or her personal representatives are liable in due course of administration to contribute to the company's property in discharge of his or her liability to contribute and are contributories accordingly; and

(b) if his or her personal representatives default in paying any money that they are ordered to pay - proceedings may be taken for administering his or her estate and for compelling payment, out of the assets of that estate, of the money due.

1. The plaintiff says s 528 affords her standing to bring the application under s 462(2)(c). In support of that contention, the plaintiff relies on the cases of Re Meyer Douglas Pty Ltd ('Re Meyer')[4] and Melluish v Underwood Development Pty Ltd ('Melluish').[5] In Re Meyer, Gowans J held that the statutory analogue to s 528 of the Act (being s 220 of the Companies Act 1961 (Vic)) was sufficient to justify the conclusion that an executor of a deceased shareholder's estate had standing as a contributory under s 221(1)(c) of that earlier legislation to bring an application to wind up a company, including on the just and equitable ground found in s 222(1)(h), notwithstanding that they were not actually registered as a member.[6] In Melluish, Barrett J (as his Honour then was) applied the reasoning in Re Meyer in finding that s 529 of the current Act (the sister provision to s 528 in the case of an insolvent contributory under administration) gave a trustee in bankruptcy the necessary standing under s 462(2)(c).[7] A later decision in Warner v Shulamite Pty Ltd, in the matter of Shulamite Pty Ltd ('Shulamite')[8] stands for the same proposition.[9] However, I am hesitant to follow this approach.
2. Sections 528 and 529 are located within Div 2 of Pt 5.6 of the Act and, by force of s 514 only apply 'where a company is wound up'. Here, the company has not been wound up. Further, s 462(2) is located in a different part of the Act - Pt 5.4A. In Treadtel International Pty Ltd v Cocco,[10] the New South Wales Court of Appeal observed by way of obiter dictum that the location of the relevant provisions, suggests the extension of contributory status to legal personal representatives and trustees in bankruptcy is relevant to matters such as liability to contribute and rights to participate in dividends, but irrelevant to questions of standing to apply for a winding up order.[11] On this basis, the Court doubted the application of Re Meyer and the reasoning in Melluish and Shulamite.[12]
3. I also note that, in contrast to the respective locations of ss 528, 529 and s 462(2) of the current Act, ss 220, 221(1) and 222(1)(h) of the Companies Act 1961 (Vic) under consideration in Re Meyer were all located in Part X of that legislation. Further, s 220 (being the equivalent of the current s 528) was ostensibly not qualified by a provision similar to s 514 of the Act.[13] Re Meyer is therefore distinguishable because it was decided in a different statutory context and concerned a different statutory scheme.
4. For these reasons, I consider that ss 528 and 529 of the Act cannot provide a plaintiff with a solid foundation to establish standing under s 462(2)(c). I respectfully decline to follow Melluish and Shulamite in that regard. During the course of the hearing, the plaintiff's solicitor accepted that her client did not presently have standing under s 462(2)(c) for the reasons identified.
5. Where does this leave the present application?
6. It is clear that upon the grant of probate, and pursuant to s 13 of the Administration and Probate Act 1958 (Vic), the deceased's property, including his shares in the company, vested in the plaintiff as executor.[14] In the hands of the plaintiff, the deceased's property represents assets for the payment of all liabilities of the deceased in the ordinary course of administration.[15] However, the plaintiff will not have standing as a contributory under s 462(2)(c) of the Act unless and until she is formally registered as the holder of the deceased's shares.[16] Accordingly, it is necessary to mention some additional provisions of the Act.
7. So far as is relevant, ss 1070A(1) and (2) state:

Nature of shares and certain other interests in a company or registered scheme

(1) A share, other interest of a member in a company or interest of a person in a registered scheme:

(a) is personal property; and

(b) is transferable or transmissible as provided by:

(c) is capable of devolution by will or by operation of law.

(i) the company's constitution (if any); and

(ii) any replaceable rules that apply to the company;

1. Section 1072E of the Act is also apposite. It relevantly states:

Trustee etc. may be registered as owner of shares

(1) In this section:

share, in relation to a body corporate, means a share in the body that is registered in a register kept in this jurisdiction.

(2) A trustee, executor or administrator of the estate of a dead person who was the registered holder of a share in a corporation may be registered as the holder of that share as trustee, executor or administrator of that estate.

1. Section 1072C essentially grants the same rights to a trustee in bankruptcy in relation to shares as the bankrupt would have been entitled to if he or she was not a bankrupt. Those rights include the right to be registered as the holder of such shares.[17]
2. Turning then to the constitution of the company, cl 12 of the constitution deals with transmission of the company's shares on the death of a member. Clause 12.1 states that '[i]f a member who does not own shares jointly dies, the Company will recognise only the personal representative of the deceased member as being entitled to the deceased member's interest in the shares'. Clause 12.2 of the constitution relevantly provides that:

If the personal representative gives the directors the information they reasonably require to establish the representative's entitlement to be registered as holder of the shares:

(a) the personal representative may:

(i) by giving a written and signed notice to the Company, elect to be registered as the holder of the shares;...and

(b) the personal representative is entitled, whether or not registered as the holder of the shares, to the same rights as the deceased member.

1. Clause 12.3 of the constitution says that on receiving an election in accordance with the above process, the company must register the personal representative as the holder of the shares.
2. The obvious difficulty here is that there are no directors of the company to give effect to any election by the plaintiff to be registered as the holder of the company's shares, whether under the constitution, or the provisions of the Act I have mentioned, or both. In this situation, it is appropriate that the plaintiff apply to the Court to be registered as the holder of the relevant shares.
3. Section 175(1) of the Act states:

A company or registered scheme or a person aggrieved may apply to the Court to have a register kept by the company or scheme under this Part corrected.

1. The power to correct a share register is discretionary and the relief equitable in nature.[18] It appears the Court has the power to order the creation of a register of shares in circumstances where the register cannot be located.[19]
2. In Taylor (as trustee of the bankrupt estate of Kwok) v Goldana Investments Pty Ltd (receivers and managers appointed) (No 2) ('Taylor v Goldana'),[20] Wigney J granted an application of a trustee in bankruptcy to be registered as the holder of the bankrupt's shares in a company so as to provide the trustee with standing to apply for the winding up of the company on the just and equitable ground. Specific orders were made under s 1072C entitling the trustee to be registered as the holder of the relevant shares and correcting the record of the register of members of the relevant company pursuant to s 175 of the Act. A similar course was adopted by Delany J in Re Ingram Enterprises ('Re Ingram Enterprises'),[21] a case relied upon by the plaintiff. There, the sole director and shareholder of a proprietary company passed away and the executor of his estate made application to, among other things, wind up the company on the just and equitable ground. Recognising that the executor did not have standing to make such an application, his Honour made orders, including that the executor be registered as the holder of the relevant shares in the company pursuant to s 1072E(2) of the Act and that the register of members be corrected under s 175, before winding the company up pursuant to s461(1)(k) of the Act.
3. I consider that the same approach should be adopted in this case to deal with the question of the plaintiff's standing and I will grant her leave to amend her originating process to include relief under ss 1072E(2) and 175 of the Act. In my view, it is appropriate to make a declaration that the plaintiff be entitled to be registered as the holder of all 1226 ordinary shares in the company pursuant to s 1072E(2) of the Act. In the exercise of my discretion, I also order that the share register of the company should be corrected accordingly. The plaintiff is a 'person aggrieved' for the purpose of s 175 because she is entitled to be recorded in the register of members of the company as a holder of the deceased's shares by devolution under the will and by the operation of s 1072E of the Act, but she is unable to achieve this as there is no one in control of the company to give effect to the transfer of shares to her. The Court is informed the plaintiff has been unable to locate any share register. It is therefore appropriate to also order its creation.

Winding up of the company under s 461(1)(a) and/or s 461(1)(k) of the Act

1. It is necessary then to consider the substantive relief sought in the application.
2. I am disinclined to make a winding up order under s 461(1)(a) of the Act on the basis the company has by special resolution resolved that it be wound up by the Court. That is because at the time the plaintiff made the purported resolution she was not a shareholder of the company. Although the order correcting the share register could be framed in such a way to give it retrospective effect,[22] I am unconvinced it is appropriate to do so in the present circumstances.
3. I will then consider the remaining ground of winding up under s 461(1)(k). The categories of circumstances which trigger the just and equitable jurisdiction are not closed or rigid.[23] The Court must evaluate the factual matrix of the dispute in order to be satisfied whether sufficient reason exists to wind the company up.[24] A company may be wound up on the just and equitable ground if it has no directors and there is no likelihood of any being appointed.[25] Similarly, it may be just and equitable to wind up a company that is in a state of corporate paralysis.[26]
4. The Court will consider the financial position of the relevant company and the availability of any alternative and less drastic remedy.[27]
5. As Sifris J (as his Honour then was) said in Exton v Extons:[28]

Courts are "extremely reluctant to wind up a solvent company"[29].... As the Court of Appeal has observed, "[i]t is well accepted that the winding up of a solvent and flourishing company should be a last resort".[30] Courts will consider whether any other relief would be preferable to a winding up order.[31]

1. Relatedly, s 467(4) of the Act is in these terms:

(4) Where the application is made by members as contributories on the ground that it is just and equitable that the company should be wound up or that the directors have acted in a manner that appears to be unfair or unjust to other members, the Court, if it is of the opinion that:

(a) the applicants are entitled to relief either by winding up the company or by some other means; and

(b) in the absence of any other remedy it would be just and equitable that the company should be wound up;

must make a winding up order unless it is also of the opinion that some other remedy is available to the applicants and that they are acting unreasonably in seeking to have the company wound up instead of pursuing that other remedy.

1. Having regard to the underlying factual matrix of the proceeding, the Court's discretion should, in my view, be exercised in favour of the winding up on the just and equitable ground under s 461(1)(k). The company has no directors and there is no likelihood of any being appointed, noting of course the plaintiff herself is reluctant to step into that role. For all intents and purposes, the company is in a state of corporate paralysis and there is no one able to manage its affairs. Further, it no longer carries on any business or performs any function. Its assets were sold prior to the deceased passing away.
2. In light of the financial position of the company as disclosed by the limited documentation available to the plaintiff, the Court cannot confidently conclude that the company is solvent. Instead, the position suggests the company may well be balance-sheet insolvent. It is certainly not flourishing. It follows that the financial position of the company should not be a restraint on the making of a winding up order. Moreover, there appears to be no alternative or less drastic remedy than the winding up of the company.
3. In winding up the company under s 461(1)(k) of the Act, I will appoint Kylie Maree Wright as liquidator. It is also appropriate to dispense with the requirement for publication of a notice of the application pursuant to r 5.6 of the Supreme Court (Corporations) Rules 2023 (Vic) and to extend the period of time for lodgement with ASIC of notice of the filing of the proceeding.

1. I will make the declarations and orders set out in the Annexure to these reasons.

1. Pursuant to s 1072E(2) of the Corporations Act 2001 (Cth) ('Act'), the plaintiff be entitled to be registered as the holder of all 1,226 ordinary shares in the defendant.

1. The plaintiff has leave to amend the Originating Process to seek additional relief under ss 1072E(2) and 175 of the Act.
2. The requirement for filing and serving the Amended Originating Process is dispensed with.
3. The plaintiff cause the defendant to create a register of members of the defendant in lieu of the register which cannot be located.
4. Pursuant to s 175 of the Act, the register of members of the defendant be corrected to record that the shares presently registered in the name of the deceased are registered in the name of the plaintiff (as executor of the estate of the deceased).
5. The requirement that the plaintiff publish notice of the application pursuant to r 5.6 of the Supreme Court (Corporations) Rules 2023 (Vic) be dispensed with.
6. The time for lodgement with the Commission of the notice of the filing of the proceeding is extended to 11:14am on 27 June 2025.
7. The defendant, Sun Sign Pty Ltd (ACN 005 821 447), be wound up under s 461(1)(k) of the Act.
8. Ms Kylie Maree Wright be appointed liquidator for the purpose of the winding up.

9. The plaintiff's costs are costs in the winding up.

[1] [2023] FCA 1645.

[4] [1965] VicRp 83; [1965] VR 638 ('Re Meyer').

[5] [2004] NSWSC 429 ('Melluish').

[8] [2012] FCA 863 ('Shulamite').

[10] [2016] NSWCA 360; (2016) 117 ACSR 176 ('Treadtel').

[11] Ibid fn 9 (Barrett AJA, with whom Gleeson and Leeming JA agreed).

[13] Section 217 of the Companies Act 1961 (Vic) simply stated that 'provisions of this Part [X] relating to the remedies against the property of the company, the priorities of debts and the effect of an arrangement with creditors shall bind the Crown'.

[14] See also Wood v Inglis [2008] NSWSC 1147; (2008) 68 ACSR 420, 426 (Barrett J); Re Ingram Enterprises [2024] VSC 395 [15] (Delany J) ('Re Ingram Enterprises').

[15] Administration and Probate Act 1958 (Vic) s 37.

[16] See Treadtel, 198-200 where the New South Wales Court of Appeal held that an arguable claim to be entitled to shareholding was insufficient to establish standing as a contributory for the purpose of s 462(2). See also s 231 of the Act.

[17] Taylor (as trustee of the bankrupt estate of Kwok) v Goldana Investments Pty Ltd (receivers and managers appointed) (No 2) [2015] FCA 947; (2015) 236 FCR 298, 300 (Wigney J) ('Taylor v Goldana').

[18] LDY Pty Ltd & Anor v GE & L International Investment Pty Ltd & Ors (No 4) [2024] VSC 677 [494] (Cosgrave J) and the authorities cited there.

[20] [2015] FCA 947; (2015) 236 FCR 298.

[21] [2024] VSC 395.

[22] See Taylor v Goldana [19]-[20] and Re Ingram Enterprises [1], [24].

[23] Ebrahimi v Westbourne Galleries Ltd [1973] AC 360, 379 (Lord Wilberforce). See also Australian Securities and Investment Commission v Storm Financial Ltd (recs & mgrs apptd) (admin apptd) & Ors [2009] FCA 269; (2009) 71 ACSR 81, 109 (Logan J); ASIC v Letten (No 10) [2011] FCA 498, [12] (Gordon J) ('ASIC v Letten').

[25] CIC Insurance Ltd (prov liq apptd) v Hannan & Co Pty Ltd [2001] NSWSC 437; (2001) 38 ACSR 245, 248 [13] (Barrett J) ('CIC Insurance'); Official Trustee in Bankruptcy v Buffier [2005] NSWSC 839; (2005) 54 ACSR 767, 778-779 (Campbell J); Phelan v Ambridge Corp Pty Ltd [2005] NSWSC 875; (2005) 55 ACSR 136, 140-141 (Brereton J); Re Ingram Enterprises [20]; Camphin Boston, in the matter of Aether X Pty Ltd v Aether X Pty Ltd [2023] FCA 1087 (Markovic J).

[26] Re Vision Image (Aust) Pty Ltd; Cheng v Yeo [1998] WASC 38; CIC Insurance, 248 [13]; Great Australian Resources Pty Ltd; Re Platinum Mining Ventures Ltd [2011] FCA 1472 [18] (Barker J); Re Admiral Cove Pty Ltd [2023] VSC 537 [46]-[50], [57] (Hetyey AsJ).

[27] See Exton & Anor v Extons Pty Ltd [2017] VSC 14; (2017) 53 VR 520, 545 (Sifris J) ('Exton v Extons'); Re Wyndham Park Estate Pty Ltd [2019] VSC 92, [40]-[42] (Sifris J).

[29] International Hospitality Concepts Pty Ltd v National Marketing Concepts Inc (No 2) (1994) 13 ACSR 368, 372 (Young J).

[30] _French v Smit_h [2004] VSCA 207, [122] (Charles and Chernov JJA and Harper AJA); Sassine v Ray & Sons Construction Pty Ltd [2012] NSWSC 307, [21] (Black J).

[31] Turner v Ulicorp Pty Ltd [2007] NSWSC 206 [24] (Barrett J); Host-Plus Pty Ltd v Australian Hotels Association [2003] VSC 145, [67] (Hansen J).