Federal Court of Australia
Federal Court of Australia
Morgan v Sydney Allen Manufacturing Pty Limited (In Liquidation) [2021] FCA 1669 File number(s): NSD 75 of 2021
Judgment of: RARES J
Date of judgment: 2 December 2021
Catchwords: BANKRUPTCY AND INSOLVENCY – corporations – where former liquidator seeks reinstatement order for deregistered company under s 601AH of the Corporations Act 2001 (Cth) and pooling order under s 579E for re-registered company with another company of which he was also liquidator – where former liquidator obtained deregistration on basis company's affairs fully wound up, company had significant deficit and liquidator's fees unpaid – whether former liquidator had conflict of interest – where former liquidator had right to reimbursement or exoneration for expenses incurred in deregistered company's liquidation – where liquidator or reregistered company may be statute barred from bringing further claims if company reinstated – whether chose in action against secured creditor that realised gains not brought to account from sale of both companies' business and assets in reduction of joint secured debt constitutes "particular property" under s 579E(1)(b)(iv) that was or is used by companies in group – whether just and equitable under s 579E(12) of the Act to make pooling order for companies with common officers – whether companies' affairs intermingled – whether pooling order in interests of creditors
Legislation: Corporations Act 2001 (Cth) ss 91, 180–182 439C, 513C, 533, 545, 553, 560, 579E, 588FF, 588M, 601AH, 1317H and 1322 Fair Entitlements Guarantee Act 2012 (Cth) s 29
Cases cited: Anthony Hordern & Sons Limited v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 Chalker v Clark [2008] VSCA 92 Chief Commissioner of Stamp Duties for New South Wales v Buckle (1998) 192 CLR 226 David Grant & Co Pty Limited v Westpac Banking Corporation (1995) 184 CLR 265 Grant Samuel Corporate Finance Pty Ltd v Fletcher (2015) 254 CLR 477 Hall v Poolman (2009) 75 NSWLR 99 In re London and Caledonian Marine Insurance Company (1879) 11 Ch D 140 Oreb v Australian Securities and Investments Commission (No 2) (2017) 247 FCR 323 Pagnon v WorkCover Queensland [2001] 2 Qd R 492 Pilmer v The Duke Group Ltd (2001) 207 CLR 165 Re Watch Works Australia Pty Ltd (In Liq); Ex parte Francis [2020] WASC 6 Saba Bros Tiling (ACT) Pty Ltd v Australian Securities and Investments Commission [2021] ACTSC 47 The Owners of the Ship "Shin Kobe Maru" v Empire Shipping Company Inc (1994) 181 CLR 404
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