In the matter of Lawrenson Light Metal Diecasting Pty Limited (in liq) [2020] NSWSC 1819

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Lawrenson Light Metal Diecasting Pty Limited (in liq) [2020] NSWSC 1819 Hearing dates: 9 and 30 November 2020 Date of orders: 16 December 2020 Decision date: 16 December 2020 Jurisdiction: Equity - Corporations List Before: Gleeson J Decision: (1) The amended originating process is dismissed. (2) Direct that a copy of these reasons be provided to the Australian Securities and Investments Commission (ASIC) for its consideration. (3) Reserve for further consideration any application by the liquidator of Lawrenson Light Metal Diecasting Pty Limited (in liq), or ASIC, for relief under s 447A of the Corporations Act 2001 (Cth), provided that any such application is made by filing an interlocutory process no later than 30 January 2021, with notice to Mr Jorgensen and Mijac Investments Pty Ltd. Catchwords: CORPORATIONS – winding up – standing – where creditors' voluntary liquidation commenced in 1999 – administrator appointed by liquidator in 2010 – where creditors approved deed of company arrangement – where deed never signed by proposed deed administrator – application by persons claiming to be creditors or shareholders for authority to effectuate terms of deed of company arrangement by lodging notice with ASIC to bring deed to end – Corporations Act 2001 (Cth) s 445G(3) – application to terminate winding up – Corporations Act s 446A and s 482 – whether applicants have standing as creditor or shareholder/contributory of company CORPORATIONS – winding up – where purported deed of company arrangement never signed by proposed deed administrator – where another person signed the deed of company arrangement as purported deed administrator – whether deed of company arrangement brought into existence – Corporations Act ss 435C, 436B, 436E, 439A, 444A, 444B, 445G, 449C CORPORATIONS – winding up – court's powers – where company in voluntary administration – where administrator resigned in June 2010 – where vacancy in office of administrator not filled – whether appropriate for Court to declare administration came to an end when administrator resigned – Corporations Act s 447A – where no application by ASIC or liquidator for relief under s 447A Legislation Cited: Civil Procedure Act 2005 (NSW), s 56 Corporations Act 2001 (Cth), ss 198G, 435C, 436B, 436F, 436E, 439A, 444A, 444B, 445G, 446A, 447A, 449C, 481, 482, 513B, 513C, 601, Pt 5.3A, Sch 2 Insolvency Practice Schedule, Dvn 80, s 90-35 Cases Cited: Australasian Memory Pty Ltd v Brien (2000) 200 CLR 270; [2000] HCA 30 Australian Guarantee Corporation v Lawrence (1999) 17 ACLC 1,226 Chief Commissioner of State Revenue v Rafferty's Resort Management Pty Ltd (in liq) [2008] NSWSC 452; (2008) 66 ACSR 199 Deputy Federal Commissioner of Taxation v Comcorp Australia (1996) 21 ACSR 590 Habrok (Dalgaranga) Pty Ltd v Gascoyne Resources Ltd [2020] FCA 1395 MYT Engineering v Mulcon (1997) 140 FLR 247; 25 ACSR 78 Petrochemical Industries Ltd v Dempster Nominees Pty Ltd (1994) 15 ACSR 468 Re Connections Total Fitness for the Family Pty Ltd (administrator appointed) [2014] NSWSC 75 Strawbridge (Administrator), in the matter of CBCH Group Pty Ltd (admins apptd)(No 2) [2020] FCA 472 Category: Principal judgment Parties: Alan Jorgensen (First plaintiff) Mijac Investments Pty Ltd (Second plaintiff) Lawrenson Light Metal Diecasting Pty Ltd (in liq) (Defendant) Representation: Counsel: A Jorgensen (Self-represented) (Plaintiffs) C Pulverman (Liquidator) (Defendant) R Scheelings (ASIC) (Amicus curiae – 9 November 2020)