Wily, Andrew Hugh Jenner and Wily, Hugh Jenner [2003] NSWSC 1260

Reported Decision : 49 ACSR 94

New South Wales Supreme Court

CITATION : Wily, Andrew Hugh Jenner and Wily, Hugh Jenner [2003] NSWSC 1260 HEARING DATE(S) : 19 December, 2003 JUDGMENT DATE : 19 December 2003 JURISDICTION: Equity Division JUDGMENT OF : Palmer J DECISION : Resignation of applicant as liquidator, administrator or receiver in specified insolvency administrations accepted; another insolvency practitioner appointed.

CATCHWORDS : CORPORATIONS - LIQUIDATOR - ADMINISTRATOR - RECEIVER - Insolvency practitioner suspended by Company Auditors & Liquidators Disciplinary Board - powers of Court to replace him temporarily as liquidator, administrator and receiver. LEGISLATION CITED : Corporations Act 2001 (Cth) - s.447A, s.473, s.495, s.502 PARTIES : Andrew Hugh Jenner Wily - First Applicant Hugh Jenner Wily - Second Applicant FILE NUMBER(S) : SC 6286/03 COUNSEL : J. Chippindall - Applicants SOLICITORS : Michell Sillar - Applicants

JUDGMENT – Ex tempore

1 This is an application by Andrew Hugh Jenner Wily whereunder Mr Wily seeks to be replaced as liquidator, administrator and receiver of various corporations pursuant to an order of suspension made against him by the Company Auditors and Liquidators Disciplinary Board. 2 The suspension arises out of unfortunate circumstances involving a staff member of Mr Wiley's firm and from what I can see there was no suggestion of any personal delinquency on the part of Mr Wily. Nevertheless, the Board thought it appropriate that Mr Wily be suspended as an official liquidator for a period of four months. That has caused difficulty in a large number of insolvency administrations in which Mr Wily is engaged. The solution which has been found is that his father, Hugh Jenner Wily, an official liquidator for many years but now semi-retired, is to be appointed in his place. The administration of the various insolvencies would then continue under Mr Wily Snr, using the resources of Mr Wily's firm, Armstrong Wily & Co, of which Mr Hugh Wily was formerly a partner and Mr Andrew Wily is a present partner. 3 Generally, having regard to the evidence, it seems to me that it would not be in the interests of creditors of any of the insolvent administrations under the care of Andrew Wily that those administrations be transferred, even if temporarily, to another liquidator outside the firm. I am satisfied from the evidence filed that it would cause unnecessary expense to the creditors in those administrations to remove the files from the day-to-day supervision of those within Mr Wily's firm who have had the conduct of them for some time. 4 I am satisfied that, having regard to the experience of Hugh Wily, it is appropriate that he be appointed to replace Andrew Wily to take charge of the various administrations. The only question then is under what power might the substitution be effected. 5 Mr Chippindall of Counsel has very helpfully summarised the relevant provisions of the Corporations Act 2001 (Cth) which enable the substitution to be made. I am satisfied that, as Mr Chippindall submits, the Court has power to make the appointments sought. 6 The corporations of which Mr Andrew Wily has been appointed official liquidator by the Court are listed in Schedule 1 of the Originating Process. Section 473 of the Corporations Act provides that a liquidator appointed by the Court may resign or on cause shown may be removed by the Court. Section 473(7) provides that a Court may fill a vacancy in the office of official liquidator. It is intended that Mr Andrew Wily resign as official liquidator of the corporations set out in Schedule 1 of the Originating Process, effective from 23 January 2004. There will then be a vacancy in the office of official liquidator of those companies on that date. I order that, effective on and from 23 January 2004, Hugh Jenner Wily be appointed official liquidator of the companies listed in schedule 1 of the Originating Process. 7 Mr Andrew Wily has been appointed liquidator pursuant to creditors' meetings of the companies listed in Schedule 2 of the Originating Process. Section 502 of the Corporations Act empowers the Court to appoint a liquidator, if there then be no liquidator. Mr Andrew Wily intends to resign as liquidator of the corporations listed in Schedule 2 in accordance with s.495(3) of the Corporations Act effective from 23 January 2004. Accordingly, pursuant to s.502 of the Corporations Act , I order that Hugh Jenner Wily be appointed liquidator of each of the companies in voluntary liquidation listed in Schedule 2 of the Originating Process, effective on and from 23 January 2004. 8 Mr Andrew Wily has been appointed as deed administrator under deeds of arrangement in respect of the companies listed in Schedule 3 of the Originating Process. Section 447A of the Corporations Act gives a general power to the Court to make such orders as it thinks fit as to the operation of the provisions of the relevant part of the Corporations Act relating to administrations. An application under s.447A may be made for appropriate orders under that section by a number of people, including an administrator. Mr Andrew Wily is presently the administrator of the companies referred to in Schedule 3 so that he now has status to make that application. I think that there is ample power under s.447A afforded to the Court to appoint as deed administrator Mr Hugh Wily in place of Mr Andrew Wily upon the resignation of Mr Andrew Wily. Accordingly, as Mr Andrew Wily will retire as deed administrator on and from 23 January 2004, I appoint Mr Hugh Wily as deed administrator of the companies listed in Schedule 3 of the Originating Process in his place effective on and from 23 January 2004. 9 Mr Wily is receiver of the companies listed in Schedule 4 of the Originating Process, having been so appointed by the Court. There is power in the Court pursuant to Pt 29 r5(c) and (d) to accept a resignation of a receiver and to appoint another in his or her place. Mr Wily will resign as receiver on 23 January 2004. The Court accepts that resignation and appoints Mr Hugh Wily as receiver of the companies listed in Schedule 4 of the Originating Process on and from 23 January 2004. 10 I direct that these orders be passed and entered forthwith. – oOo –