In the matter of Hunter Aged Care Foundation Limited (in liquidation) [2023] NSWSC 1358

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Hunter Aged Care Foundation Limited (in liquidation) [2023] NSWSC 1358 Hearing dates: 3 November 2023 Date of orders: 3 November 2023 Decision date: 03 November 2023 Jurisdiction: Equity - Corporations List Before: Black J Decision: Directions made that the liquidators are justified in the distribution of the Gift Fund and the asset surplus. Liquidators' costs in the application to be costs in the winding up. Catchwords: CORPORATIONS – Winding up – Application for special leave under s 488(2) of the Corporations Act 2001 (Cth) to distribute surplus funds – Where company constitution provided for an application to the Court where a board determination as to the distribution of the company surplus did not occur prior to winding up – Whether special leave can be granted. CORPORATIONS – Winding up – Where company constitution permits distribution of surplus assets in a 'Gift Fund' to certain 'ATO-Endorsed Entities' at the board's discretion – Whether the liquidators can exercise the discretion conferred upon the board to distribute the assets in the Gift Fund – Whether the Court can make a direction approving distribution of the Gift Fund and the surplus assets under s 90-15 of the Insolvency Practice Schedule (Corporations). Legislation Cited: - Charitable Trusts Act 1993 (NSW) Cases Cited: - Application of Gregory Jay Parker (liquidator of Shellharbour Gold Club Ltd (in liq)) [2006] NSWSC 219 - Butterell v Docker Smith Pty Ltd (1997) 23 ACSR 149 - Re Dungowan Manly Pty Ltd (2017) 124 ACSR 218; [2017] NSWSC 1771 - Re Hawden Properties Group Pty Ltd (in liq) (2018) 125 ACSR 355; [2018] NSWSC 481 - Re Maitland Benevolent Society Ltd (in liq) [2020] NSWSC 1284 - Re Octaviar Administration Pty Ltd (in liq) Category: Principal judgment Parties: Chad Rapsey and John Vouris in their capacity as joint liquidators of Hunter Aged Care Foundation Limited (in liq) (First and Second Plaintiffs) Hunter Aged Care Foundation Limited (in liquidation) (Third Plaintiff) Representation: Counsel: R Marshall SC/H Durack (Plaintiffs)