FEDERAL COURT OF AUSTRALIA Cassidy, in the matter of Pattrupp Holdings Pty Ltd v Pattrupp Holdings Pty Ltd [2011] FCA 929 Citation: Cassidy, in the matter of Pattrupp Holdings Pty Ltd v Pattrupp Holdings Pty Ltd [2011] FCA 929 Parties: BARBARA MOLLY CASSIDY v PATTRUPP HOLDINGS PTY LTD ACN 094 797 010 (FORMERLY EDSONIC PTY LTD) and RUMMINN HOLDINGS PTY LTD ACN 101 545 206 (FORMERLY EDSONIC AUSTRALIA PTY LTD) File number(s): ACD 38 of 2011 Judge: JAGOT J Date of judgment: 28 July 2011 Catchwords: CORPORATIONS – application for appointment of provisional liquidator Legislation: Corporations Act 2001 (Cth) ss 461, 472, 482 Date of hearing: 28 July 2011 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 6 Counsel for the Plaintiff: Mr J A Larkings Solicitor for the Plaintiff: Williams Love & Nicol Counsel for the First Defendant: The first defendant did not appear Counsel for the Second Defendant: The second defendant did not appear IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISION ACD 38 of 2011 IN THE MATTER OF PATTRUPP HOLDINGS PTY LTD ACN 094 797 010 AND RUMMINN HOLDINGS PTY LTD ACN 101 545 206 BETWEEN: BARBARA MOLLY CASSIDY Plaintiff AND: PATTRUPP HOLDINGS PTY LTD ACN 094 797 010 (FORMERLY EDSONIC PTY LTD) First Defendant RUMMINN HOLDINGS PTY LTD ACN 101 545 206 (FORMERLY EDSONIC AUSTRALIA PTY LTD) Second Defendant JUDGE: JAGOT J DATE OF ORDER: 28 JULY 2011 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Mr Henry Joseph Kazar be appointed as the provisional liquidator of the company Pattrupp Holdings Pty Ltd ACN 094 797 010. 2. Mr Henry Joseph Kazar be appointed as the provisional liquidator of the company Rumminn Holdings Pty Ltd ACN 101 545 206. 3. The costs of this application be part of the costs, charges and expenses of the winding-up pursuant to s 482(4) of the Corporations Act 2001 (Cth). Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISION ACD 38 of 2011 IN THE MATTER OF PATTRUPP HOLDINGS PTY LTD ACN 094 797 010 AND RUMMINN HOLDINGS PTY LTD ACN 101 545 206 BETWEEN: BARBARA MOLLY CASSIDY Plaintiff AND: PATTRUPP HOLDINGS PTY LTD ACN 094 797 010 (FORMERLY EDSONIC PTY LTD) First Defendant RUMMINN HOLDINGS PTY LTD ACN 101 545 206 (FORMERLY EDSONIC AUSTRALIA PTY LTD) Second Defendant JUDGE: JAGOT J DATE: 28 JULY 2011 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an application under s 472(2) of the Corporations Act 2001 (Cth) (the Corporations Act) for the appointment of a provisional liquidator to the first and second defendants (the defendant companies). The grounds on which the application is made are set out in the interlocutory process filed on 21 July 2011 as follows: (a) since 27 January 2011, the sole director of the defendant companies has been bankrupt and on 13 May 2011 joint trustees were appointed to his estate; (b) the defendant companies are jointly and severally liable for judgment debts and are subject to judgment orders that may not be met; and (c) the creditor, being the plaintiff Barbara Molly Cassidy, believes that the assets of the defendant companies have been transferred out of either or both of the defendant companies. 2 The evidence in support of the application includes the consent of Henry Joseph Kazar, an official liquidator, to be appointed by the Court to act as the provisional liquidator of the defendant companies, as well as his consent to act as a liquidator of those companies. There is also evidence from the plaintiff, Ms Cassidy. That evidence annexes orders made by Moore J in this Court on 31 May 2011 in proceeding no. NSD 517 of 2009 (the May orders). The May orders, amongst other things, required the cross-respondents to that proceeding (being the defendant companies in the present proceeding, known at the time as EdSonic Pty Ltd and EdSonic Australia Pty Ltd respectively) to pay the amount of $165,000 (plus interest) to Ms Cassidy on or before 24 July 2011. 3 The May orders also required the defendant companies to pay Ms Cassidy's costs of the proceeding on and from 12 November 2010. In her affidavit of 27 July 2011, Ms Cassidy explains that she has not received the money to be paid to her pursuant to the May orders. The appointment of a provisional liquidator to the defendant companies is associated with the application made by Ms Cassidy, also filed on 21 July 2011, for the defendant companies to be wound up under s 461(1) of the Corporations Act on the ground that it is just and equitable to do so. I understand that the application for the winding-up of the defendant companies has been listed for directions or hearing on 31 August 2011. 4 The appointment of the provisional liquidator is sought on the basis that there is sufficient urgency to warrant such appointment. The circumstances as established by the evidence are summarised in the submissions for Ms Cassidy as follows: (a) the defendant companies continue to have no director and are rudderless; (b) the defendant companies cannot comply with an order of the Court by reason of the fact that they are not subject to any corporate control; (c) the plaintiff is without any recourse against the defendant companies to obtain her full entitlements; (d) the plaintiff is not in a position to determine whether the defendant companies have any assets or continue to hold any of the materials in which she was found to own copyright because they have failed to produce documents in accordance with the orders of the Court made on 12 November 2010; (e) the EdSonic business (being the business previously conducted by the defendant companies) is likely to have been transferred from one or both of the defendant companies to another EdSonic entity; and (f) the operation of the EdSonic business, albeit through another entity or entities, is possibly perpetrating ongoing breaches of the plaintiff's copyright in circumstances where none of the entities now operating the EdSonic business has a commercial relationship to the plaintiff. 5 When the interlocutory process came on for hearing this morning, there was no appearance by either of the defendant companies. The companies were called to appear but no appearance was entered either in Canberra, where the plaintiff is located, or in Sydney, where I am located. This non-appearance is in the face of service of the Court documents on the companies and other interested parties as set out in the affidavits of Laura Charlotte Scotton, sworn 27 July 2011, and Grace Prudence Lynn, sworn 22 July 2011. In the circumstances I am satisfied by the evidence that has been put before me by the plaintiff and the submissions on her behalf as summarised above that there is an appropriate basis on which an order should be made for the appointment of a provisional liquidator to both of the defendant companies. 6 For those reasons, I propose to make orders in accordance with the interlocutory process filed on 21 July 2011. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. Associate: Dated: 28 July 2011