Lombe as liquidator of Ulicorp Pty Ltd [2009] NSWSC 536

Reported Decision : 74 NSWLR 669

New South Wales Supreme Court

CITATION : Lombe as liquidator of Ulicorp Pty Ltd [2009] NSWSC 536

HEARING DATE(S) : 20/04/09, 29/04/09, 10/06/09

JUDGMENT DATE : 12 June 2009

JURISDICTION : Equity Division Corporations List

JUDGMENT OF : Barrett J

DECISION : Special leave to distribute surplus.

CATCHWORDS : CORPORATIONS - winding up - winding up by the court - surplus after payment of debts in full - basis on which surplus should be distributed to members - unanimous agreement of members to adopt some other basis - whether liquidator may proceed in accordance with agreement

LEGISLATION CITED : Corporations Act 2001 (Cth), ss 140(1)(c), 488(2)

CATEGORY : Principal judgment

Re DS Millard & Son Pty Ltd (1997) 24 ACSR 71 CASES CITED : Re HIH Casualty & General Insurance Ltd [2005] NSWSC 240; (2005) 190 FLR 398 Re Trix Ltd [1970] 1 WLR 1421 Re Yanollee Pty Ltd [2006] NSWSC 705; (2006) 24 ACLC 1087

TEXTS CITED : "Palmer's Company Precedents" (17th ed) (1956) p 645

PARTIES : David John Frank Lombe in his capacity as official liquidator of Ulicorp Pty Limited - Plaintiff

FILE NUMBER(S) : SC 1628/09

COUNSEL : Ms A Cameron, Solicitor - Plaintiff

SOLICITORS : Gilbert + Tobin - Plaintiff

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

BARRETT J

FRIDAY, 12 JUNE 2009

1628/09 DAVID JOHN FRANK LOMBE IN HIS CAPACITY AS OFFICIAL LIQUIDATOR OF ULICORP PTY LIMITED JUDGMENT 1 On 10 June 2009, I made an order granting special leave to Mr Lombe, as liquidator of Ulicorp Pty Limited, to distribute the surplus in the winding up of that company to Peter William Turner as to 37.5%, Philippa Turner as to 37.5% and Cherie Anne Lenon as to 25%. I indicated that I would publish my reasons later, as I now do. 2 Mr Lombe was appointed liquidator of Ulicorp by an order made by the court on 11 September 2007. The winding up is thus a winding up by the court. 3 Mr Lombe has paid in full the admitted claims of all creditors, together with interest. After these payments had been made, a surplus remained in his hands. Under s 488(2) of the Corporations Act 2001 (Cth), a liquidator may distribute a surplus only with the "special leave" of the court. In the context, "special leave" indicates no more than the court's permission given upon an application specially made by the liquidator: Re DS Millard & Son Pty Ltd (1997) 24 ACSR 71. 4 The issued share capital of Ulicorp consists of ordinary shares and "Dividend-V-R" (or "DVVR") shares. One hundred shares of each class have been issued. They are held as follows: P W Turner 15 DVVR shares 15 ordinary shares