In the matter of Emporium Music Production and Distribution Pty Limited [2011] NSWSC 1179

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Emporium Music Production and Distribution Pty Limited [2011] NSWSC 1179 Hearing dates: 10 October 2011 Decision date: 10 October 2011 Jurisdiction: Equity Division - Corporations List Before: Barrett J Decision: Interlocutory process of Dimitri De Angelis filed on 22 June 2011 dismissed with costs Catchwords: CORPORATIONS - winding up - application for termination of winding up - application by a contributory - that person later becomes bankrupt - trustee in bankruptcy therefore contributory in his place - trustee does not pursue application - in any event no evidence of solvency - application dismissed Legislation Cited: Corporations Act 2001 (Cth), ss 482(1A), 529 Cases Cited: Melluish v Underwood Development Pty Ltd [2004] NSWSC 429 Category: Principal judgment Parties: A&F Pellicano Pty Limited - Plaintiff Emporium Music Production and Distribution Pty Limited - Defendant Dimitri De Angelis - Applicant A&F Pellicano Pty Limited - First Respondent Michael Gregory Jones in his capacity as liquidator of Emporium Music Production and Distribution pty Limited - Second Respondent Representation: No appearance - Applicant Mr D R Hilliard - Plaintiff/First Respondent In person - Applicant TressCox Lawyers - Plaintiff/First Respondent File Number(s): 2010/00360108

Judgment 1The applicant, Dimitri De Angelis, filed an interlocutory process on 22 June 2011 seeking an order for the termination of the winding up of Emporium Music Production and Distribution Pty Limited. 2His standing to bring that application was initially unclear, given that he said in his affidavit that he was a director and secretary of the company and said nothing about being a contributory or creditor, they being persons who, under s 482(1A) of the Corporations Act 2001 (Cth), are competent to bring a termination application. 3It later transpired, according to material tendered by Mr Hilliard, who has appeared for the plaintiff to oppose the motion, that Mr De Angelis had formerly had another name and, under that name, appeared from the company search to be a contributory. 4However, Mr Hilliard has now presented evidence to show that Mr De Angelis became bankrupt on 28 July 2011, with the result that the shareholding which might sustain his ability to bring the application is now vested in his trustee in bankruptcy. The trustee therefore represents Mr De Angelis for the purposes of the winding up "and is to be a contributory accordingly": s 529. 5It follows, in my opinion, that it is now the trustee in bankruptcy, not Mr De Angelis, who has standing under s 482(1A): compare Melluish v Underwood Development Pty Ltd [2004] NSWSC 429. 6The trustee in bankruptcy was given notice of the application but has not appeared to pursue it. Nor, indeed, has Mr De Angelis. He was made aware by the registrar by email sent on 10 August that the matter would be before the court today but he has not appeared. 7These matters provide a basis to make the order Mr Hilliard has sought, that is, an order dismissing the interlocutory process. 8I would add that Mr De Angelis has not filed any evidence going to proof of the solvency of the company. That is an indispensable element of any case for termination under s 482 where, as here, the winding up is a winding up in insolvency. 9I order that the interlocutory process of Dimitri De Angelis filed on 22 June 2011 be dismissed with costs.