Spooner, in the matter of Wengen Pty Ltd (in liquidation) (No 2) [2023] FCA 32

Judgment (7 paragraphs)

[1]

Pursuant to section 480(d) of the Corporations Act 2001 (Cth), the applicants as joint and several Liquidators of Wengen Pty Ltd (in liquidation), be released and the Australian Securities and Investment Commission deregister that company. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

[2]

MCEVOY J: 1 By interlocutory process filed 9 November 2022, the applicants seek orders pursuant to s 480 of the Corporations Act 2001 (Cth) to be released as joint and several liquidators of Wengen Pty Ltd (ACN 005 341 846) (in liquidation) (the Company) and that the Australian Securities and Investments Commission (ASIC) deregister the Company. 2 On 22 July 2022, orders were made which, amongst other things, granted the applicants leave to distribute the surplus funds in the liquidation of Wengen Pty Ltd pursuant to s 488(2) of the Corporations Act to Jodie Maree Robison and Emma Jane Robison in their capacity as beneficiaries of the Robison Family Trust (the Trust). 3 The present interlocutory process seeking orders pursuant to s 480 of the Corporations Act was served on 16 November 2022 by prepaid post on each creditor, and on 16 November 2022 by hand delivery to ASIC. The liquidator has not received objections from either ASIC, or the shareholders or creditors of the Company in response to the interlocutory application. 4 In support of the application the applicants rely upon the following affidavits: (a) affidavit of Glenn John Spooner affirmed 9 November 2022 (Spooner Affidavit); (b) affidavit of service of Makenzee Emily Braddy affirmed 17 November 2022 (Braddy Affidavit); and (c) affidavit of Meghan Louise Sullivan sworn 20 December 2022 (Sullivan Affidavit). 5 On 21 December 2022 the applicants filed comprehensive written submissions in support of the application. I have drawn from these submissions in the preparation of these reasons. In all the circumstances the application has been dealt with without an oral hearing pursuant to s 20A of the Federal Court of Australia Act 1976 (Cth). 6 For the reasons which follow, there will be orders substantially in the form sought by the applicants.

Section 480 of the Corporations Act 9 Section 480 of the Act relevantly provides: When the liquidator: (a) has realised all the property of the company or so much of that property as can in his or her opinion be realised without needlessly protracting the winding up, and has distributed a final dividend (if any) to the creditors and adjusted the rights of the contributories among themselves and made a final return (if any) to the contributories; … he or she may apply to the Court: … (d) for an order that he or she be released and that ASIC deregister the company. 10 Rule 7.5 of the Federal Court (Corporations) Rules 2000 (Cth) (Corporations Rules) sets out requirements in connection with an application pursuant to section 480 of the Corporations Act. To comply with the requirements of r 7.5(3) of the Corporations Rules, the liquidators must provide details of the following matters in a supporting affidavit: (a) whether the whole of the company's property has been realised or whether so much of the company's property has been realised as, in the liquidator's opinion, can be realised without needlessly protracting the winding up; (b) any calls made on contributories in the course of the winding up; (c) any dividends paid in the course of the winding up; (d) whether the committee of inspection (if any) has passed a resolution approving the liquidator's release; (e) whether ASIC has caused books in relation to the company to be audited under section 70-15 of the Insolvency Practice Schedule (Corporations); (f) whether the Court has ordered a report on the accounts of the liquidator to be prepared; (g) whether any objection to the release of the liquidator has been received by the liquidator from - (i) an auditor appointed by the ASIC or by the Court; or (ii) any creditor, contributors or other interested person; (h) whether any report has been submitted by the liquidator to the ASIC under section 533 of the Corporations Act; (i) whether the liquidator considers it necessary to report on the affairs of the company or any of its officers; (j) any property disclaimed in the course of the winding up; (k) any remuneration paid or payable to the liquidator and how such remuneration was determined; (l) any costs, charges or expenses payable by the liquidator if the Court grants the liquidator's release; and (m) if the application is made under section 480(c) of the Corporations Act - the facts and circumstances by reason of which it is submitted that the company should not be deregistered. 11 These matters have been addressed by the applicants in paragraphs [6] to [20] of the Spooner Affidavit. 12 Rule 7.5(4) of the Corporations Rules provides that certain attestations concerning the administration of the affairs of the company must be included in the supporting affidavit to an application under s 480(d). Mr Spooner has deposed as required by r 7.5(4) in paragraphs [21] to [22] of his affidavit. 13 Rule 7.5(5) of the Corporations Rules requires the liquidator to file with, or annex to, the supporting affidavit: (a) a statement of the financial position of the company at the date when the interlocutory process seeking release was filed; and (b) a summary of the liquidator's receipts and payments in winding up the company. 14 A statement of the financial position of the Company as at 9 November 2022 records that there are no assets or liabilities of the Company. Similarly, a statement of the receipts and payments of the Company for the period 17 June 2016 to 12 October 2022 have been reconciled. Both statements were annexed to the Spooner Affidavit filed with the interlocutory process dated 9 November 2022 filed by the applicants. 15 On the evidence which has been filed I am satisfied that the requirements of s 480(d) of the Corporations Act have been met. 16 By s 481(3) of the Corporations Act, a release order discharges the liquidator from all liability in respect of any of his or her acts or defaults in the administration of the company or in relation to his or her conduct as liquidator. 17 In Re RR Impex Pty Ltd (in liq) [2013] NSWSC 1667 at [3], Black J described the effects of such an order as follows: The effect of such an order has been described as to "wipe the slate clean", subject to the limited exceptions set out in s 481(3): Singer v Trustee of the Property of Munro [1981] 3 All ER 215 at 219 (dealing with the corresponding English provisions in respect of a trustee in bankruptcy); Re Wayland as Liquidator of ABC Containerline NV (in liq) [2005] NSWSC 1; (2005) 52 ACSR 750 at [27]. The notification provisions in respect of such an application allow such an application to be the forum at which any claim that the liquidator has been deficient in performing his or her role should be advanced: Deputy Commissioner of Taxation v Tideturn Pty Ltd [2001] NSWSC 217; (2001) 37 ACSR 152; Re ABC Containerline above at [28]. It appears to be implicit in the structure of the sections and those notification requirements that, if the Court is satisfied that the relevant notifications have been given, no creditors have objected to the release of the liquidator or raised any concern as to the performance of his or her duties and the other evidence contemplated by the appropriate rules is placed before the Court, then the Court would ordinarily make an order releasing the liquidator, unless any reason emerges why it should not do so: Re Adellos Pty Limited (in liq) [2013] NSWSC 747 at [2]-[3]. 18 The "appropriate rules" referred to by Black J in RR Impex that are relevant in this instance are rr 2.8 and 7.5 of the Corporations Rules.

Service of the interlocutory application 19 Rule 2.8 of the Corporations Rules requires that in relation to certain proceedings, particular documents are to be served on ASIC or notice of particular matters are to be given to ASIC. In particular, r 2.8(3) requires that for an application under s 480 of the Corporations Act the applicant must serve on ASIC, a reasonable time before the hearing of the application, a copy of the originating process, or interlocutory process, and supporting affidavit in respect of the application. The interlocutory process and the supporting Spooner Affidavit was served on ASIC by hand on 16 November 2022 (see Braddy Affidavit, paragraph 4). 20 In accordance with r 7.5(6) of the Corporations Rules, on 16 November 2022 the interlocutory process and Spooner Affidavit were served by prepaid post on each creditor who has proved a debt in the course of the winding up. 21 The two shares in the Company were owed by Alan John Robison and therefore form part of his deceased estate. Accordingly, there are no contributories for the purposes of r 7.5(6). In any event, the interlocutory process and Spooner Affidavit were served on Lorraine Jones, being the executor of Mr Robison's deceased estate, and Emma Robison, Jodie Robison and Joan Robison. 22 Rule 7.5(2) provides that the interlocutory process relating to s 480(d) must include: (a) a notice stating that any objection to the release of the liquidator must be made by filing and serving a notice of objection, in the prescribed form, within 21 days after the date of service of the interlocutory process; and (b) a statement setting out the terms of subsection 481 (3) of the Corporations Act. The interlocutory process dated 9 November 2022 contained both the prescribed notice and the statement regarding s 481(3) of the Corporations Act, in accordance with r 7.5(2). 23 More than 21 days have passed since the interlocutory process and supporting affidavit was served on ASIC and the creditors. In that time, no person has given notice of any objection to the release of the liquidator.

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Judgment (7 paragraphs)

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