Daniel Nassar & Marfern Pty Limited v Innovative Precasters Group Pty Ltd (In Liquidation) & Ors [2011] NSWSC 889

Supreme Court New South Wales

Medium Neutral Citation: Daniel Nassar & Marfern Pty Limited v Innovative Precasters Group Pty Ltd (In Liquidation) & Ors [2011] NSWSC 889 Hearing dates: 18 July 2011 Decision date: 18 July 2011 Jurisdiction: Equity Division - Corporations List Before: Hammerschlag J Decision: Order pursuant to s 488 of the Corporations Act 2001 (Cth) for adjustment between contributories and distribution of surplus Catchwords: CORPORATIONS - application for distribution of surplus and adjustment of rights of contributories - ss 448(1) and 488(2) Corporations Act 2001 (Cth) Legislation Cited: Corporations Act 2001 (Cth) Category: Principal judgment Parties: Daniel Nassar & Marfern Pty Limited ACN 071487628 - Plaintiff Innovative Precasters Group Pty Ltd (In Liquidation) - First Defendant IP Group Australia Pty Ltd (In Liquidation) - Second Defendant DGN Investments Pty Ltd (In Liquidation) - Third Defendant Rosario Grasso - Fourth Defendant Paul George De Oliveira - Fifth Defendant Grahame Peter Hill as Liquidator of DGN Investments Pty Limited (In Liquidation) ACN 095 0257 104) - Applicant Representation: Counsel: D.R. Stack - Third Defendant E.A. Walker - Fifth Defendant Solicitors: Kemp Strang - Third Defendant / Applicant Marsdens Law Group - Fifth Defendant File Number(s): 2008/277514

EX TEMPORE Judgment 1HIS HONOUR: This is an application by the liquidator of DGN Investments Pty Ltd (in liq) ACN 095 057 104 for an order under s 488(2) of the Corporations Act 2001 (Cth) ("the Act") to distribute a surplus. It includes an application pursuant to s 488(1) of the Act to adjust the rights of certain contributories amongst themselves. The order for distribution assumes the adjustment. The order with respect to the surplus will take into account that adjustment. 2Sections 488(1) and (2) of the Act provide that: (1) Provision may be made by rules or regulations for enabling or requiring all or any of the powers and duties conferred and imposed on the Court by this Part in respect of: (a) the holding and conducting of meetings to ascertain the wishes of creditors and contributories; and (b) the paying, delivery, conveyance, surrender or transfer of money, property or books to the liquidator; and (c) the adjusting of the rights of contributories among themselves and the distribution of any surplus among the persons entitled to it; and (d) the fixing of a time within which debts and claims must be proved; to be exercised or performed by the liquidator as an officer of the Court and subject to the control of the Court. (2) Despite anything in rules or regulations made for the purposes of subsection (1), a liquidator may distribute a surplus only with the Court's special leave. 3The adjustment is required to equalise the loan accounts of the contributories and is apparently uncontroversial. It relates to $258 in respect of one of the contributories, Mr Nassar, and $322 in respect of another of the contributories, Mr De Oliveira (the fifth defendant), who today is represented by Mr E A Walker of counsel. 4The application is supported by two affidavits, one of the liquidator, Mr Hill, and another by his solicitor, Silvana Jovcevska. There is undoubtedly a surplus and that surplus is properly to be distributed to the contributories. 5The affidavit material establishes the rights of the contributories to share in the surplus which, after taking into account the costs of this application, amounts to $130,463.73. 6Relevant parties who have an interest in these proceedings have been given notice, none has appeared to oppose. However, the fifth defendant has drawn attention to the fact that Mr Nassar is a bankrupt. The payment to be made in respect of his interest must therefore be made to his trustee in bankruptcy. This will be noted in the orders which I intend to make.` 7In the circumstances I will make the orders which are contained in the document entitled "Order" which I have initialled, dated today's date and placed with the papers.