In the matter of Habibi Waverton Pty Ltd (in liquidation) (administrator appointed) [2021] NSWSC 1443

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Habibi Waverton Pty Ltd (in liquidation) (administrator appointed) [2021] NSWSC 1443 Hearing dates: 18 October 2021 Date of orders: 18 October 2021 Decision date: 18 October 2021 Jurisdiction: Equity - Corporations List Before: Rees J Decision: Operation of s 444GA(1) Corporations Act modified to apply to administrator. Leave to transfer shares without member's consent. Interested party to pay liquidator's costs. Catchwords: CORPORATIONS – company operates profitable business in leased premises – shareholders in dispute – voluntary liquidator appointed – liquidator advertises business for sale – one shareholder has "very strong relationship" with landlord – landlord proposes to terminate lease and grant new lease to shareholder – shareholder makes offer for plant and equipment only – company likely insolvent due to unlodged BAS – liquidator appointed as administrator – moratorium on landlord – shareholders submit competing DOCAs – other shareholder submits better offer – approved by creditors – conditional on transfer of shares – shareholder will not consent – s444GA, Corporations Act – principles at [26]-[33] – only applies to administrators under a DOCA – s447A(1), Corporations Act – principles and application at [44]-[56] – modification of operation of s 444GA to apply to administrator – transfer ordered. COSTS – r. 2.13(2) Supreme Court (Corporations) Rules – whether interested party should pay costs – application strenuously opposed – substantial evidence irrelevant or abandoned – hearing prolonged – in interests of creditors – shareholder ordered to pay liquidator's costs. Legislation Cited: Corporations Act 2001 (Cth), ss 437F, 444GA, 447A, Pt 5.3A Insolvency Practice Schedule, s 75-41 Supreme Court (Corporations) Rules 1999 (NSW), r 2.13 Cases Cited: Australasian Memory Pty Ltd v Brien (2000) 200 CLR 270; [2000] HCA 30 Carr v Western Australia (2007) 232 CLR 138; [2007] HCA 47 Gjergja & Atco Controls Pty Ltd v Cooper [1987] VR 167 In the matter of Black Oak Minerals Ltd [2019] FCA 293; (2019) 134 ACSR 472 In the matter of Centennial Mining Ltd (Subject to Deed of Company Arrangement) [2019] WASC 441 In the matter of Diverse Barrel Solutions Pty Ltd (Subject to a Deed of Company Arrangement) [2014] FCA 53 In the matter of DSHE Holdings Limited (receivers and managers appointed) (in liq) [2018] NSWSC 275 In the matter of Elite Logistics Holdings Pty Ltd (subject to deed of company arrangement) [2017] NSWSC 1830 In the matter of Maria's Farm Veggies Pty Ltd (admins apptd) [2016] NSWSC 1899 In the matter of Mirabela Nickel Ltd (subject to DOCA) [2014] NSWSC 836 In the matter of MROC Car Wholesalers Pty Ltd [2017] NSWSC 287 In the matter of Nexus Energy Ltd (Subject to Deed of Company Arrangement) [2014] NSWSC 1910; (2014) 105 ACSR 246 In the matter of Shield Mercantile Pty Ltd [2020] NSWSC 1545 In the matter of Virgin Australia Holdings Ltd (Administrators Appointed) (No 9) [2020] FCA 1652; (2020) 148 ACSR 648 MMAL Rentals Pty Ltd v Bruning (2004) 63 NSWLR 167; [2004] NSWCA 451 Weaver v Noble Resources Ltd (2010) 41 WAR 301; [2010] WASC 182 Category: Procedural rulings Parties: Michael Billingsley (Plaintiff) Zahir Salie (First Interested Party) Michael Cthurmer (Second Interested Party) Representation: Counsel: Mr J Anderson (Plaintiff) Mr R Size (First Interested Party) Mr D Weinberger (Second Interested Party)