Re Kwang Hua Yu-Soon Incorporated [2009] NSWSC 658

New South Wales Supreme Court

CITATION : Re Kwang Hua Yu-Soon Incorporated [2009] NSWSC 658

HEARING DATE(S) : 7 July 2009

JUDGMENT DATE : 7 July 2009

JURISDICTION : Equity

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 7 July 2009

DECISION : Refer to paras 5 and 6 of judgment.

CATCHWORDS : INCORPORATED ASSOCIATIONS - application by association for its own winding-up - power of committee members to cause association to bring application - advertising not dispensed with - provisional liquidator appointed

LEGISLATION CITED : Associations Incorporation Act 1984 (NSW) Corporations Act 2001 (Cth)

Inkerman Grazing Pty Limited (1972) 1 ACLR 102 CASES CITED : Trans Pacific Insurance Corp v Douglas [2009] NSWSC 308 University of Newcastle Union Limited [2008] NSWSC 1361

PARTIES : Re Kwang Hua Yu-Soon Incorporated

FILE NUMBER(S) : SC 3573/09

COUNSEL : Applicant: J T Johnson

SOLICITORS : Applicant: Watson Mangioni Lawyers

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

WHITE J

Tuesday, 7 July 2009

3573/09 Re Kwang Hua Yu-Soon Incorporated JUDGMENT 1 HIS HONOUR: This is an application under s 51 of the Associations Incorporation Act 1984 (NSW). The plaintiff seeks an order that it be wound up. The application was made ex parte yesterday and I stood the application over to this afternoon for two reasons. First, I was not at that stage satisfied that the Committee which resolved that the plaintiff make the application for its own winding-up, necessarily had the power to take that course; and, secondly, in order that counsel could consider my prima facie view that I ought not dispense with the requirements for advertising of the winding-up application and, therefore, ought not to make a final winding-up order, but, rather, should appoint the proposed liquidator as provisional liquidator. 2 The Associations Incorporation Act does not make specific provision conferring powers upon a Committee. The Act provides for the Committee's powers to be specified in the rules. The rules of the association have now been tendered. The power conferred by r 13 is at least as wide as the power conferred by s 198A of the Corporations Act 2001 (Cth) on directors of a company and I am satisfied that the Committee members have the power to cause the association to make the application (see Re Inkerman Grazing Pty Limited (1972) 1 ACLR 102 and cases which followed it; most recently Trans Pacific Insurance Corp v Douglas [2009] NSWSC 308 at [23] and University of Newcastle Union Limited [2008] NSWSC 1361 at [9]). 3 Today there is an appearance for a company which I am told is the largest creditor. It supports the winding-up application, but no material prejudice is pointed to if the winding-up application is advertised and, in the meantime, the proposed liquidator is appointed provisional liquidator. 4 On the face of it this is a compelling application for the Association to be wound up. There is clear evidence of insolvency. Nonetheless, there may be some matters which an affected person, such as a member of the Association, might wish to put forward in opposition to the orders sought. I do not grant the leave sought to dispense with the requirements for advertising the application. 5 I order that Scott Darren Pascoe be appointed liquidator of the plaintiff provisionally. 6 I stand over the originating process to 27 July 2009 before the Corporations List Judge. These orders may be entered forthwith.