FEDERAL COURT OF AUSTRALIA Deputy Commissioner of Taxation, in the matter of Petle Pty Ltd (in liq) v Petle Pty Ltd (in liq) [2016] FCA 573 File number(s): WAD 109 of 2010 Judge(s): SIOPIS J Date of judgment: 20 April 2016 Catchwords: CORPORATIONS – application to be released as liquidator of a company and for the company to be deregistered – application for a direction for the destruction of the company's books. Legislation: Corporations Act 2001 (Cth) ss 480(a), 480(b), 480(d), 542(3)(a) Corporations Rules 2001 (Cth) rr 2.8(3), 7.5, 7.5(3), 7.5(6) Date of hearing: 20 April 2016 Registry: Western Australia Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: Catchwords Number of paragraphs: 13 Counsel for Mr Mervyn Jonathan Kitay: Mr C Terren Solicitor for Mr Mervyn Jonathan Kitay: Roe Legal Services ORDERS WAD 109 of 2010 IN THE MATTER OF PETLE PTY LTD (ACN 126 489 834) (IN LIQUIDATION) BETWEEN: DEPUTY COMMISSIONER OF TAXATION Plaintiff AND: PETLE PTY LTD (ACN 126 489 834) (IN LIQUIDATION) Defendant JUDGE: SIOPIS J DATE OF ORDER: 20 APRIL 2016 THE COURT ORDERS THAT: 1. Mervyn Jonathan Kitay is released as liquidator of Petle Pty Ltd (ACN 126 489 834). 2. The Australian Securities and Investments Commission deregister Petle Pty Ltd (ACN 126 489 834). 3. All books of Petle Pty Ltd (ACN 126 489 834), and of the liquidator in relation to Petle Pty Ltd (ACN 126 489 834), may be destroyed after six months of the date of this order. 4. Costs of this application be costs in the winding up of Petle Pty Ltd (ACN 126 489 834). Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT SIOPIS J: 1 This is an application by Mr Mervyn Jonathan Kitay, the liquidator of a company, Petle Pty Ltd (In Liquidation) (the company). The company previously traded under the name of RMF Electrical Services. On 2 March 2011, the company was wound up on the application of the Deputy Commissioner of Taxation. Mr Kitay was appointed as the liquidator of the company. Mr Kitay now applies for orders under s 480(d) of the Corporations Act 2001 (Cth) to be released as the liquidator of the company and for the Australian Securities and Investment Commission (ASIC) to deregister the company. 2 Mr Kitay also applies for a direction under s 542(3)(a) of the Corporations Act that he be permitted to destroy the books and records of the company after six months of the date of this order. 3 I will deal first with the application under s 480(d). The application is an important application because it has the consequence of wiping the slate clean for the liquidator. 4 Section 480(a) and s 480(b) of the Corporations Act and r 2.8(3) and r 7.5 of the Corporations Rules 2001 (Cth) set out the provisions which must be complied with before such an order can be made. I had the benefit of comprehensive oral submissions from Mr Terren, counsel for Mr Kitay, who, by reference to the evidence, took me to the requirements set out in the Corporations Act and the Corporations Rules. The evidence comprised an affidavit by Mr Kitay and an affidavit by Ms Kylie Lee Kissell, who was an accountant who assisted Mr Kitay in the administration of the company. 5 The relevant statutory pre-conditions for making this application are set out as follows in s 480(a) of the Corporations Act: 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; or… 6 Mr Kitay's affidavit establishes that there has been compliance with those pre-conditions. 7 Rule 2.8(3) of the Corporations Rules provides that the application and supporting affidavits must be served on ASIC a reasonable time before the hearing. Ms Kissell deposed that she duly served the application and supporting affidavits on ASIC by prepaid post. During the course of the hearing today, Mr Terren handed to me a letter from ASIC acknowledging the receipt of the documents and confirming that ASIC did not propose to intervene in the proceeding or seek leave to appear. 8 In his affidavit, Mr Kitay has deposed to each of the matters which are set out in r 7.5(3) of the Corporations Rules. I observe that Mr Kitay also deposed that the priority creditors have been paid 100 cents in the dollar, and that there has been a dividend payment of 22 cents in the dollar to the unsecured creditors. 9 The affidavit evidence of Ms Kissell is to the effect that there has been compliance with r 7.5(6) of the Corporations Rules in that the summary of the liquidator's receipts and payments and a copy of the statement of the financial position of the company at the date the application was filed, has been served on each of the creditors, including the Deputy Commissioner of Taxation. The evidence shows that the documents were also served on the former shareholders of the company. Mr Terren informed me from the bar table that the Deputy Commissioner's representative had also advised him that the Deputy Commissioner of Taxation neither consented, nor objected, to the making of the orders sought by Mr Kitay in this application before the Court. 10 There has been no objection filed to the release of the liquidator consequent upon the service of the documents on ASIC and each of the creditors. Further, the evidence discloses compliance with all of the other statutory requirements. Accordingly, the Court will order that, pursuant to s 480(d) of the Corporations Act, Mr Kitay be released as the liquidator and that ASIC deregister the company. 11 As to the making of a direction for the destruction of the documents, Mr Kitay has deposed that the documents are contained in 26 storage boxes. Mr Kitay has said that storage costs would be incurred if the documents were not destroyed. He has also deposed that no person has advised him that he or she requires access to those documents. Mr Kitay goes on to say that neither he, nor, to the best of his knowledge, any other person, requires further access to the documents. Accordingly, he deposes that it is appropriate that they be destroyed. 12 It is a requirement of s 542(3)(a) of the Corporations Act that an application for relief must be notified to ASIC at least 14 days before the application. There has been compliance with this service requirement because, as I have already said, this application and supporting affidavits were served on ASIC by prepaid post well in advance of the 14 day period, and ASIC has responded by saying that it did not intend to appear on the application. Therefore, I will direct that the documents be destroyed in accordance with the order sought in the originating application, namely, after six months of the date of this order. 13 I am content to make an order that costs of the application are costs in the winding up of the company. I thank counsel for his assistance in this matter. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate: Dated: 20 May 2016