Londish v Sheahan & Lock in Re Valofo Pty Ltd [2009] NSWSC 1175

New South Wales Supreme Court

CITATION : Londish v Sheahan & Lock in Re Valofo Pty Ltd [2009] NSWSC 1175

HEARING DATE(S) : 2 October 2009 JURISDICTION : Equity Division Corporations List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 2 October 2009

DECISION : Declare that the administrators were not validly appointed – set aside summons for examination and orders for production issued by purported administrators

CATCHWORDS : CORPORATIONS – external administration – voluntary administration – application for declaration that administrators were not duly appointed – where dispute as to appointment of directors of company who purported to appoint administrators – whether notice signed by sole shareholder purportedly to appoint new director – valid resolution within (CTH) Corporations Act 2001, s 249B – where notice does not evidence a formal decision of the company – held, notice was a unilateral act of shareholder under a misconceived power, and not intended as a resolution of company under s 249B – held, director not validly appointed – consequently, administrators not validly appointed – Where appointors seek to have ineffective appointments cured under (CTH) Corporations Act 2001, s 447A – whether s 447A would authorise an order validating the removal and appointment of a director – where appointors seek to have ineffective appointments cured under (CTH) Corporations Act 2001, s 1322 – where s 1322 only allows for corrections of matters of a procedural nature – held, appointment of directors not procedural

LEGISLATION CITED : (CTH) Corporations Act 2001 s 249B, s 436A, s 447A, s 1322(2), s 1322(4), s 1322(6)

CATEGORY : Principal judgment