In the matter of Bosnjak Holdings Pty Ltd; Fexuto Pty Ltd v Lombe [2009] NSWSC 565

Reported Decision : 72 ACSR 337

New South Wales Supreme Court

CITATION : In the matter of Bosnjak Holdings Pty Ltd; Fexuto Pty Ltd v Lombe [2009] NSWSC 565

HEARING DATE(S) : 15, 17, 18 June 2009

JUDGMENT DATE : 18 June 2009

JURISDICTION : Equity

JUDGMENT OF : Austin J

DECISION : Orders made under s 447A(1) as set out under heading "Conclusion"

CATCHWORDS : CORPORATIONS - administration under deed of company arrangement - 13 related companies - deeds create pooling arrangements - surplus after completion of administration - no provision in the deeds for distribution of surplus - administrator seeks order under s 447A(1) so that upon effectuation and termination of deeds, companies will automatically pass into members' voluntary liquidation and administrator and his partner well become liquidators - whether s 447A(1) empowers court to make such an order - whether there are good reasons for doing so - whether all proper parties have been notified of the application - whether the most appropriate form of order is to amend reg 5.3A.07 so that it applies - inadvertent error in amendment of reg 5.3A.07 in 2007 - amendment of reg 5.3A.07 under s 447A(1) to achieve appointment of liquidators

LEGISLATION CITED : Corporations Act 2001 (Cth), ss 439C, 445C, 445FA, 446A, 446B, 447A, 491, 494, 497, 499 Corporations Regulations, reg 5.3A.07

CATEGORY : Principal judgment

Australasian Memory Pty Ltd v Brien [2000] HCA 30 CASES CITED : Chief Commissioner of State Revenue v Rafferty's Resort Management Pty Ltd (in liq) [2008] NSWSC 452 Gibbons v LibertyOne Ltd (in liq) [2002] NSWSC 274

Fexuto Pty Ltd (Plaintiff) David John Frank Lombe and Peter George Yates (in their capacities as Administrators of Bosnjak Holdings Pty Ltd (First Defendant) National Bus Company Pty Ltd (Second Defendant) Bosnjak Holdings Pty Ltd (Subject to a Deed of Company Arrangement) (Third Defendant) Bosnjak Property Developments Pty Ltd (Subject to a Deed of Company Arrangement) (Fourth Defendant) Bosnjak Investments Pty Ltd (Subject to a Deed of Company Arrangement) (Fifth Defendant) Bosnjak Coach Lines Pty Ltd (Subject to a Deed of Company Arrangement) (Sixth Defendant) Bosnjak Bros Pty Ltd (Subject to a Deed of Company Arrangement) (Seventh Defendant) Parramatta Bus Co Pty Ltd (Subject to a Deed of Company Arrangement) (Eighth Defendant) St Mary's Bus Service Pty Ltd (Subject to a Deed of Company Arrangement) (Ninth Defendant) East Realisations Pty Ltd (formerly Westbus Pty Ltd) (Subject to a Deed of Company Arrangement) (Tenth Defendant) Eniwill Pty Ltd (Subject to a Deed of Company Arrangement) (Eleventh Defendant) Bosnjak Enterprises Pty Ltd (Subject to a Deed of Company Arrangement) (Twelfth Defendant) Bosnjak International Sales Pty Ltd (Subject to a Deed of Company Arrangement) (Thirteenth Defendant) Smithfield Coach Imports Pty Ltd (Subject to a Deed of Company Arrangement) (Fourteenth Defendant) Red Realisations (formerly Blue Ribbon Bus Company Pty Ltd)(Subject to a Deed of Company Arrangement) (Fifteenth Defendant) PARTIES : Glenorie Bus co Pty Ltd (Sixteenth Defendant) X Y Realisations 2005 Ltd (formerly Westbus (UK) Ltd)(in liq) (Seventeenth Defendant) National Express Group Plc (Eighteenth Defendant) Phillip White (Nineteenth Defendant) David Rendall (Twentieth Defendant) William Rollason (Twenty First Defendant) Richard Brown (Twenty Second Defendant) Geoffrey Evans (Twenty Third Defendant) Ray O'Toole (Twenty Fourth Defendant) Jim Bosnjak (Twenty Fifth Defendant) Gloria Bosnjak (Twenty Sixth Defendant) Robert Ash (Twenty Seventh Defendant) Trevor Fletcher (Twenty Eighth Defendant) Barry Pybis (Twenty Ninth Defendant) Craig Wallace (Thirtieth Defendant) John Lee (Thirty First Defendant) Kevin Harris (Thirty Second Defendant) David John Frank Lombe (Applicant)