Emanuele, Rocco & Anor v Australian Securities Commission & Ors [1995] FCA 1068

CATCHWORDS

Corporations - appeal - companies under deeds of company arrangement - allegations of material non-disclosure to administrator and creditors - winding up order made on application of Australian Securities Commission - whether order should have been made - whether appropriate to dispense with advertising and other notifications - whether appropriate to declare deeds void without reference back to the creditors - whether orders appointing provisional liquidators to related companies justified on the evidence. Practice & Procedure - appeal - whether company directors have standing to appeal against order winding up company under deed of company arrangement. Practice & Procedure - failure to obtain leave to apply to wind up a company - whether application brought without leave a nullity - whether a procedural irregularity - whether order can be made nunc pro tunc granting leave.

Corporations Law, ss 435C, 436A, 444E, 444G, 445D, 445G, 459A, 459P, 465A, 467, 472, 1322 Federal Court of Australia Act 1976, ss 24, 28 Federal Court Rules, O 6 r 8, O 35 r 7(3), O 52 r 14 Matter No. SG64 of 1995 ROCCO EMANUELE AND LINTON EMANUELE v AUSTRALIAN SECURITIES COMMISSION and ADDSTONE PTY LTD (in provisional liquidation (ANC 010 764 977) AND OTHERS SPENDER, von DOUSSA & HILL JJ ADELAIDE 15 DECEMBER 1995

IN THE FEDERAL COURT OF AUSTRALIA ) ) SOUTH AUSTRALIA DISTRICT REGISTRY) No. SG64 of 1995 ) GENERAL DIVISION ) ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: ROCCO EMANUELE AND LINTON EMANUELE Appellants AND: AUSTRALIAN SECURITIES COMMISSION First Respondent AND: ADDSTONE PTY LTD (in provisional liquidation) (ANC 010 764 977) AND OTHERS Second Respondent MINUTES OF ORDER JUDGES MAKING ORDER : SPENDER, von DOUSSA and HILL JJ. WHERE MADE : ADELAIDE DATE OF ORDER : 15 DECEMBER 1995 THE COURT ORDERS THAT: 1. Objections to competency raised by the notices of motion filed by the Australian Securities Commission directed to the appeal and application for leave to appeal be dismissed. 2. The order of the primary judge made on 30 August 1995 be amended by adding thereto as paragraph numbered 7 an order that the Australian Securities Commission have leave nunc pro tunc pursuant to s.459P(2) of the Corporations Law to apply to wind up in insolvency the