Colbran, in the matter of Balsub Pty Ltd (in liquidation) [2023] FCA 1635

FEDERAL COURT OF AUSTRALIA

Colbran, in the matter of Balsub Pty Ltd (in liquidation) [2023] FCA 1635 File number(s): VID 517 of 2023

Judgment of: MCEVOY J

Date of judgment: 19 December 2023

Catchwords: BANKRUPTCY AND INSOLVENCY – Application under s 90–15 of the Insolvency Practice Schedule (Corporations) contained in Schedule 2 of the Corporations Act 2001 (Cth) – Where there is no contradictor despite liquidator's reasonable efforts – Where liquidator is justified and acting reasonably in proceeding on the basis that proceeds of cause of action under s 588M of the Corporations Act 2001 (Cth) are to applied in discharge of debts, claims or expenses irrespective of whether they were incurred by a company in its own right or in its capacity as trustee – Principle of pari passu or "equal sharing" in Australia and other comparable jurisdictions – Where liquidator is acting in accordance with the priorities prescribed by ss 556 and 555 of the Corporations Act 2001 (Cth) – Where it is appropriate for the court to make the directions sought – Where liquidator's remuneration, costs and disbursements of application are to be paid from the assets of the company and the trust on an indemnity basis.

Legislation: Corporations Act 2001 (Cth) ss 553, 555, 556, 560, 588M, 588R, 588T, 588Y, 596A, 596B; Sch 2, ss 90-15, 90-20; ss 447D, 479 and 511 Companies Code 1981 (Cth) s 556 Corporations Law 1991 (Cth) s 592 Corporate Law Reform Act 1992 (Cth) s 111 Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG Companies Act 1993 (NZ) ss 135, 136 Insolvency Act 1986 (UK) s 214