Van der Velde v Estate of Sweeney

IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 197 of 2013

AND: THE ESTATE OF THE LATE PAUL DESMOND SWEENEY

JUDGE: LOGAN J DATE: 31 MAY 2013 PLACE: BRISBANE

REASONS FOR JUDGMENT 1 The late Paul Desmond Sweeney died on 25 September 2012. Mr Sweeney was a registered official liquidator, and in terms of repute known to me, a respected one at that. He also held appointments under the Bankruptcy Act 1966 (Cth) as a trustee. Today's application relates to various appointments which he held prior to his death under the Corporations Act 2001 (Cth) (Corporations Act). Mr Sweeney's executor is his widow, Mrs Larraine Kay Sweeney. I am satisfied that the application made today by those with whom Mr Sweeney previously practiced have been drawn to the attention of Mrs Sweeney and that she is aware of the nature of the application and has no objection to it. 2 I am further satisfied that the applicants have complied with orders which I made on 10 May 2013 dispensing with service of the application and its supporting affidavits upon each of the companies listed in annexure B to the application. The orders made on 10 May 2013 were, materially, also directed to a public notification of the hearing of the application today. There has been no appearance by or on behalf of any of the creditors of any of the companies listed in annexure B or any other person, save for the solicitor for the applicants today. I am also satisfied that the Australian Securities and Investments Commission (ASIC) has not only been notified of the proceeding but has also responded to the solicitors for the applicants, advising that it does not propose to appear today and does not oppose the application. 3 Prior to his death, Mr Sweeney and the applicants practiced together under the firm name SV Partners. As might be expected, the staff at that practice had the day to day conduct of the various company administrations and types of administration under the supervision of both the applicants and, prior to his ceasing work because of a sadly fatal illness, Mr Sweeney. Mr Sweeney's illness, on the evidence, came on the sudden with a related, unexpected death. 4 The long and the short of the case is that the repository of expertise in relation to the various company administrations lies with those who remain in SV Partners. In that respect, the position is similar to that which confronted Lindgren J in Condon v Watson [2009] FCA 11. In that case, the person concerned had not died unexpectedly, as opposed to leaving the firm concerned. There, the remaining appointee applied for very similar relief to that sought today. In granting that relief, Lindgren J observed, materially, that it would be wasteful and inconvenient for the various groups of creditors to be consulted. That is equally applicable in the present case. The public notification and the absence of response is also eloquent as to at least an indifference on the part of creditors as to the making of orders of the kind sought today. 5 The other consideration, as I have observed already, is that there is an existing repository of expertise in SV Partners. It would also be wasteful and inconvenient for the various groups of creditors, in my opinion, for others outside of SV Partners to have to assume the burden of the various corporate administrations. There is no disqualifying conduct or cause for concern about orders which would see a continuum, in effect, of administration. That being the case, it is then necessary to make a range of orders that will address the delayed lodgement of accounts with the ASIC, which was an understandable sequel to Mr Sweeney's sudden and unexpected death. 6 It is also necessary to provide for Mr Sweeney's replacement in various administrations. That is necessary particularly because, even where there was provision by various orders or appointments for joint and several administration, Mr Sweeney was the sole Queensland-based appointee. It is desirable in respect of the various company administrations that there be a Queensland-based insolvency practitioner. Mr van der Velde will suitably fulfil that role. 7 It is also necessary to correct the register of liquidators, which is maintained by the ASIC. In that regard, one of the requirements of the Corporations Act is that a liquidator must give notice to ASIC when they cease to act as liquidator, or rather when they cease to practice as a liquidator: s 1287(2)(a). A maxim lex non cogit ad impossibilia applies to that obligation in relation to Mr Sweeney personally discharging that duty. Provision must nonetheless be made for the correction and updating of the register. That will be achieved by authorising one of the applicants to sign the requisite form. 8 For these reasons, I make orders in terms of the draft. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.