Re Pentacle Pty Ltd [2005] NSWSC 919

New South Wales Supreme Court

CITATION : Re Pentacle Pty Ltd [2005] NSWSC 919

HEARING DATE(S) : 12 September 2005

JUDGMENT DATE : 12 September 2005

JURISDICTION : Equity

JUDGMENT OF : Campbell J

DECISION : Appointments validated, by orders under both sections 447A and 1322(4) Corporations Act 2001

CATCHWORDS : CORPORATIONS - voluntary administration - doubt about validity of appointment of administrators - whether appointment to be validated

LEGISLATION CITED : Corporations Act 2001 (Cth)

CASES CITED : Re Vouris; EPromotions Pty Ltd and Relectronic-Remech (In Liq) (2003) 47 ACSR 155

PARTIES : Brian Hugh Allen and Peter George Burton as Liquidators of Pentacle Pty Limited - Plaintiffs

FILE NUMBER(S) : SC 4370/05

COUNSEL : RK Eassie - Plaintiffs

SOLICITORS : NOT Lawyers - Plaintiffs

LOWER COURT JURISDICTION :

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

CAMPBELL J

MONDAY 12 SEPTEMBER 2005

4370/05 BRIAN HUGH ALLEN & ANOR AS LIQUIDATORS OF PENTACLE PTY LTD JUDGMENT – Ex Tempore 1 HIS HONOUR: This is an application seeking to cure an invalid appointment of administrators. The company in question had two directors, Mr Savidis and his sister, Ms Sanderson. It had, as its only substantial asset, a rented home unit. That home unit was mortgaged, and the rent was insufficient to meet the mortgage repayments. The shareholders arranged for the shortfall in the operating income of the company from time to time to be made good. 2 On 2 February 2005 Mr Savidis died. Ms Sanderson, on 9 March 2005, purporting to act as sole director of the company, purported to appoint Mr Allen and Mr Burton as administrators. 3 There is no extant copy of the articles of association, or constitution, of the company. However, the articles of association of a related company are such that there are required to be two directors, and if there ceases to be two directors the ongoing director can act only for the purpose of filling the vacancy. Ms Sanderson did not purport to act in that way. For those reasons, there is doubt about whether the administrators were validly appointed. 4 On 12 April 2005 the creditors of the company resolved that it should be placed into liquidation. The administrators thereafter treated themselves as having become liquidators. They have proceeded to sell the home unit, call for proofs of debt, and take nearly all of the steps which are involved in winding up the company. 5 Only recently did it come to their attention that there might have been an invalidity in their appointment as administrators, and that the invalidity might affect the validity of their purported appointment as liquidators. 6 Hence, on 5 August 2005, an originating process was taken out, seeking the present orders. Notice of that originating process has been given to all the creditors of the company, and to certain other people who might potentially be interested. That notice invited submissions to be made by 5 September 2005. Nothing has been heard from any of them. 7 This is a clear case where validation of the appointment is appropriate. The company manifestly needed to be placed into administration, when the means by which it had survived over the years, from shareholder injections of cash, was no longer available to it once Mr Savidis had died. It is appropriate to make an order under section 447A of the Corporations Act 2001 (Cth) validating the appointment. 8 As well, following the procedure to which I referred in Re Vouris; EPromotions Pty Ltd and Relectronic-Remech (In Liq) (2003) 47 ACSR 155, at 181 [73], it seems prudent to also make an order under section 1322(4). 9 I am satisfied that the manner of appointment of the administrators is something which is essentially of a procedural nature, that Ms Sanderson and the administrators acted honestly, and that it is just and equitable that the order be made. Further, given the way that the administration and the liquidation have gone, I am satisfied that no substantial injustice has been, or is likely to be caused, to any person. Thus the requirements under section 1322(6), for the making of an order under section 1322(4) are met. 10 I make orders in accordance with the short minutes of order which I initial and date today's date and place with the papers. 11 These orders may be entered forthwith. The exhibits may be returned. **********