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. ****** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.