Cussen v Signature Resorts Pty Ltd [2000] NSWSC 89

Reported Decision : [2000] 18 ACLC 341

New South Wales Supreme Court

CITATION : Cussen v Signature Resorts Pty Ltd [2000] NSWSC 89 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 1453/2000 HEARING DATE(S) : 21/02/2000 JUDGMENT DATE : 21 February 2000

Neil Robert Cussen (P1) PARTIES : Paul Gerard Weston (P2) Kevin Shirlaw (P3) Signature Resorts Pty Limited (D) JUDGMENT OF : Young J

COUNSEL : SOLICITORS : Solicitor for plaintiff: G Cussen of Kemp Strang CATCHWORDS : CORPORATIONS [177]- Administrator- Appointment- Partner of liquidator- Person formerly administrator under aborted administration- Whether appointment valid- Corporations Law ss 82A, 448C - WORDS & PHRASES- "Officer" LEGISLATION CITED : Corporations Law ss 82A, 448C CASES CITED : Re Chilia Properties Pty Limited (1997) 73 FCR 171 DECISION : See paras 10-12

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION YOUNG J MONDAY 21 FEBRUARY 2000

1453/2000 - NEIL ROBERT CUSSEN & ORS V SIGNATURE RESORTS PTY LTD

JUDGMENT

1 HIS HONOUR: By summons filed a few minutes ago the persons who purport to be the voluntary administrators of the defendant and its court appointed liquidator, seek orders that the first two plaintiffs were validly appointed as such voluntary administrators on 1 February 2000.

2 The essential facts are that the defendant was ordered to be wound up by a court order made on 1 March 1991, and the third plaintiff was appointed official liquidator. The defendant did not trade after the appointment of the third plaintiff as official liquidator. Its principal asset is a resort at Coffs Harbour.

3 Towards the end of 1999 the third plaintiff formed the view that the only way of obtaining the best amount of money for the unsecured creditors was to sell the structure of the company rather than the assets. For this purpose the first and second plaintiffs were appointed as administrators, to take effect in November 1999. However, the purchaser's due diligence was not completed in time for the administration to proceed to completion, and so the administration was aborted.