Parker, in the matter of Strongest Link Pty Ltd ACN 097 973 254 (in liq) [2008] FCA 1007

FEDERAL COURT OF AUSTRALIA

Parker, in the matter of Strongest Link Pty Ltd ACN 097 973 254 (in liq) [2008] FCA 1007

CORPORATIONS – where plaintiff appointed administrator of the company on 29 November 2005 – where deed of company arrangement (DOCA) executed on 31 December 2005 – where plaintiff also appointed liquidator of company on 5 October 2007 when company wound up – where two deed creditors remain unpaid – where no deed creditor sought to have the DOCA terminated at creditor's meeting – where administration fund established under the DOCA but not distributed prior to liquidation still contains monies – where DOCA does not provide it should be terminated upon the company being wound up – whether in the absence of termination of the DOCA the fund should be administered in accordance with the DOCA or whether it should be applied and distributed in the course of the winding up in accordance with statutory provisions relating to a liquidation – whether by reason of execution of the DOCA, the plaintiff holds the fund on trust either for the company or for the deed creditors – no such trust created by the DOCA – plaintiff as liquidator must distribute monies held in the fund in accordance with his obligations as liquidator – order that the DOCA be terminated.

Corporations Act 2001 (Cth) ss 445C, 445D, 447D, 471A Re G B Nathan and Co Pty Ltd (In Liq) (1991) 24 NSWLR 674 cited Octavo Investments Pty Ltd v Knight (1979) 144 CLR 360 cited Mineral & Chemical Traders Pty Ltd v T Tymczyszyn Pty Ltd (in liq) (1994) 15 ACSR 398 cited Commissioner of Taxation of the Commonwealth of Australia v Linter Textiles Australia Ltd (in liquidation) (2005) 220 CLR 592 cited Franklin's Selfserve Pty Ltd v Federal Commissioner of Taxation (1970) 125 CLR 52 discussed Dean-Willcocks v ACG Engineering Pty Ltd (in liq) (2003) 45 ACSR 290 distinguished Shepard v Sports Mondial of Australia Pty Ltd (in liq) (2005) 53 ACSR 746 distinguished Lombe v Wagga Leagues Club Ltd (2006) 56 ACSR 387 followed Federal Commissioner of Taxation v All Suburbs Car Repairs Pty Ltd (1994) 14 ACSR 753 followed Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567 cited Purchas v Estore Pty Ltd (in liq) (2006) 154 FCR 246 cited Registrar of the Accident Compensation Tribunal v Federal Commissioner of Taxation (1993) 178 CLR 145 cited Emanuele v Australian Securities Commission (1995) 63 FCR 54 cited ROBERT COLIN PARKER IN HIS CAPACITY AS DEED ADMINISTRATOR AND LIQUIDATOR OF STRONGEST LINK PTY LTD ACN 097 973 254 (IN LIQ) (SUBJECT TO A DEED OF COMPANY ADMINISTRATION)