Rosaub Pty Ltd [2005] NSWSC 689

Reported Decision : 54 ACSR 371

New South Wales Supreme Court

CITATION : Rosaub Pty Ltd [2005] NSWSC 689

HEARING DATE(S) : 11/07/05

JUDGMENT DATE : 13 July 2005

Equity Division JURISDICTION : Corporations List

JUDGMENT OF : Barrett J

DECISION : Order under s.509(6)

CATCHWORDS : CORPORATIONS - winding up - voluntary winding up - deregistration following filing of liquidator's final return - considerations relevant to exercise of court's discretion to defer deregistration - power to order deregistration "on a specified day" - whether day ascertained by reference to uncertain event is a "specified day"

LEGISLATION CITED : Corporations Act 2001 (Cth), s.509

Application of Walker (as liquidator of SC Australia Pty Ltd) [1999] NSWSC 176 Deputy Commissioner of Taxation v Bettina House of Fashion Pty Ltd (unreported, VSC, 18 November 1988) Esanda Finance Corporation Ltd v Lancaster (unreported, WASC, 20 December 1990) CASES CITED : Kerol Pty Ltd v Vergeld Engineering Pty Ltd (unreported, SASC, 30 April 1998) Re Karounos; Ex parte Official Trustee in Bankruptcy (1989) 25 FCR 177 Stores v Austra Tanks Pty Ltd (unreported, NSWSC, 8 August 1988)

PARTIES : Rosaub Pty Limited (in liquidation) - Plaintiff

FILE NUMBER(S) : SC 3906/05

COUNSEL : Mr J.T. Johnson - Plaintiff

SOLICITORS : Watson Mangioni - Plaintiff

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION CORPORATIONS LIST

BARRETT J

WEDNESDAY, 13 JULY 2005

3906/05 ROSAUB PTY LIMITED (IN LIQUIDATION) JUDGMENT 1 By an originating process filed in court on Monday last, 11 July 2005, Rosaub Pty Limited, a company in liquidation, seeks an order deferring its deregistration. In the absence of such an order, deregistration and consequent dissolution of the company will occur on 18 July 2005. 2 The winding up is a creditors' voluntary winding up. It followed on from voluntary administration under Part 5.3A of the Corporations Law as previously in force. That administration commenced in August 1995. One of the liquidators, Mr Shirlaw, deposes to having convened the final meeting of the creditors and members on 4 March 2005. The meeting was convened pursuant to s.509(1) of the Corporations Act 2001 (Cth) which is in the following terms: "As soon as the affairs of the company are fully wound up, the liquidator must make up an account showing how the winding up has been conducted and the property of the company has been disposed of and, when the account is so made up, he or she must convene a general meeting of the company, or, in the case of a creditors' voluntary winding up, a meeting of the creditors and members of the company, for the purpose of laying before it the account and giving any explanation of the account." 3 Mr Shirlaw in due course reported to ASIC, by means of lodgment of Form 523 dated 18 April 2005, that the final meeting had been convened but no quorum had been achieved. Attached was the liquidators' account required by s.509(1). By operation of s.509(4), this lodgment was tantamount to lodgment of a return of the holding of a meeting under s.509(3), so that s.509(5) came into effect: "ASIC must deregister the company at the end of the 3 month period after the return was lodged." 4 The effect of this provision may be modified pursuant to s.509(6): "On application by the liquidator or any other interested party, the Court may make an order that ASIC deregister the company on a specified day. The Court must make the order before the end of the 3 month period after the return was lodged." 5 The current application is expressed to be an application under s.509(6). It is, in terms, an application by the company itself rather than by the liquidators but I do not think that that matters. The company should be regarded as an "interested party" for s.509(6) purposes when the question of its own deregistration is in issue, even if an application by the company at the instigation of its liquidators is not properly treated as an application by the liquidators themselves. 6 The application is made in circumstances where the liquidators have had reason to review their initial opinion that the affairs of the company have been fully wound up. On or about 8 June 2005, they received a letter from solicitors for Australia and New Zealand Banking Group Limited alerting them to the possibility that the company may have an interest in moneys recoverable under the HIH Claims Support Scheme. That potentiality arises from events of 1997 in which the company, under the control of its liquidators, borrowed money from ANZ for litigation funding purposes. HIH Casualty & General Insurance Limited issued an "Insolvents Legal Expenses Indemnity Policy" in respect of the borrowing. The persons named as insured in the policy are the company and ANZ. 7 Mr Shirlaw says in his affidavit that, when the opinion was formed that the affairs of the company had been fully wound up, he was aware of this insurance policy but did not think that any recovery could be made under or by reference to it. It was not until receipt of the letter from ANZ's solicitors in June 2005 that the possibility of some recovery under the HIH Claims Support Scheme was recognised. Mr Shirlaw's understanding is that, because both ANZ and the company are named as insureds in the relevant HIH policy, further pursuit of the possibility of recovery through the scheme (already initiated by ANZ) must be by both the company and ANZ together. 8 When he came to appreciate these matters, Mr Shirlaw had the liquidators' solicitors write to ASIC asking that deregistration pursuant to s.509(5) be deferred. ASIC replied that it had no power to defer. The solicitors then gave ASIC notice of an intended application under s.509(6). ASIC's response was that it would not oppose any such application. 9 The precise order now sought is: "An order that the deregistration of Rosaub Pty Limited (in Liquidation) (ACN 003 990 127) ('the Company') be deferred until 30 January 2007 or deferred until 14 days after notification to the liquidators of the Company that the Company's claim under the HIH Claims Support Scheme has been accepted, whichever is the earlier."