Cathro (liquidator), in the matter of Petsamo No 14 Pty Ltd (in liq) v Thomassian [2022] FCA 399

Federal Court of Australia

Cathro (liquidator), in the matter of Petsamo No 14 Pty Ltd (in liq) v Thomassian [2022] FCA 399 File number: NSD 1133 of 2020

Judgment of: MARKOVIC J

Date of judgment: 28 March 2022

Date of publication of reasons: 14 April 2022

Catchwords: INSOLVENCY – application seeking an order validating a liquidator's appointment nunc pro tunc – where resolution by members to voluntarily wind up company was signed by a member pursuant to a power of attorney – where this did not accord with the company's constitution nor the requirements of the Corporations Act 2001 (Cth) – where just and equitable to validate appointment of liquidator – application granted PRACTICE AND PROCEDRE – application to proceed in absence of a party – where second defendant passed away prior to final hearing – where second defendant was on notice of the proceeding prior to his death – where second defendant took no steps to comply with the Court's orders or to agitate allegations made by him prior to his death – where plaintiffs entitled to proceed to have their claim determined – application granted

Legislation: Corporations Act 2001 (Cth) ss 250A, 250B, 1274B, 1322 Insolvency Practice Schedule (Corporations) (Sch 2 to the Corporations Act 2001 (Cth)) ss 60-11, 60-12, 70-35, 90-15 Powers of Attorney Act 2003 (NSW) Corporations Regulations 2001 (Cth) Federal Court (Corporations) Rules 2000 (Cth) rr 7.5(3), 7.9 Federal Court Rules 2011 (Cth) r 30.21

Cases cited: Car Buyers Australia Pty Limited v ASIC [2020] FCA 599 Cooper as Administrator of Goldbiz Paperbiz Pty Limited (Administrator Appointed) ACN 097 355 872, in the matter of Goldbiz Paperbiz Pty Limited (Administrator Appointed) ACN 097 355 872 [2005] FCA 1887 Cordiant Communications (Australia) Pty Ltd v the Communications Group Holdings Pty Ltd [2005] NSWSC 1005; 194 FLR 322 Harben v Phillips (1883) 23 Ch D 14 In the matter of JPD Media & Design Pty Limited (subject to deed of company arrangement) [2020] NSWSC 1311 In the matter of Willmott Forests Limited (Receivers and Managers Appointed) (in liquidation) (2012) 88 ACSR 18; [2012] VSC 125 Joiner (Liquidator), in the matter of CuDeco Limited (Receivers and Managers Appointed) (in liq) [2020] 14 ALR 239; FCA 1661 New South Wales Henry George Foundation Ltd v Booth (2002) 54 NSWLR 433 Re Hawden Property Group Pty Ltd (in liq) [2018] NSWSC 481 Re Sakr Nominees Pty Ltd [2017] NSWSC 66 Sallway, in the matter of Mossgreen Pty Ltd (in liq) (Remuneration of Liquidators) (2019) 140 ACSR 331; [2019] FCA 17718