Viropoulos v Falcon G.T. Pty Limited [2011] NSWSC 1509

Supreme Court New South Wales

Medium Neutral Citation: Viropoulos v Falcon G.T. Pty Limited [2011] NSWSC 1509 Hearing dates: Thursday, 17 November 2011 Decision date: 09 December 2011 Jurisdiction: Equity Division - Corporations List Before: White J Decision: Refer to paras [64] and [65] of judgment. Catchwords: CORPORATIONS - liquidators - application for removal of liquidators - whether liquidators validly appointed - where liquidators appointed to fill vacancy at creditors meeting convened by resigning liquidator - whether creditors can fill vacancy arising from liquidator's resignation only at a meeting of creditors convened by any two creditors pursuant to s 499(5), Corporations Act 2001 (Cth) - power to convene meeting of creditors to fill vacancy arising from liquidator's resignation pursuant to s 499(5), Corporations Act 2001 (Cth) facultative and not only way in which creditors can meet to appoint liquidator to fill vacancy - meeting validly convened by resigning liquidator - whether resigning liquidator entitled to exercise casting vote - Corporations Regulations 2001 (Cth), regs 5.6.17 and 5.6.21 - where resolution passed at creditors meeting after creditor approval of liquidator's resignation - Corporations Regulations 2001 (Cth), reg 5.6.21(4) gives casting vote to chairperson presiding at meeting not to the holder of a particular office - resolution appointing liquidators to fill vacancy validly passed

CORPORATIONS - liquidators - application for removal of liquidators - whether reasonable apprehension that liquidators lack impartiality - whether liquidators biased in favour of major creditor - where major creditor not prepared to provide funding for examination of director to any liquidator other than liquidators nominated by them - where former partner of liquidators provided advice to major creditor when partner of liquidators - where liquidators have been involved in administrations where major creditor petitioning creditor - impartiality of liquidators not compromised - application dismissed Legislation Cited: Corporations Act 2001 (Cth) Trade Practices Act 1974 (Cth) Cases Cited: Condon v Watson [2009] FCA 11; (2009) 174 FCR 314; (2009) 27 ACLC 1 Little v Edwards Concreting Pty Ltd [2010] NSWSC 185 Re Allebart Pty Ltd and The Companies Act [1971] 1 NSWLR 24 Citrix Systems Inc v Telesystems Learning Pty Ltd (in liq) [1998] FCA 1050; (1998) 28 ACSR 529 Commonwealth v Irving (1996) 19 ACSR 459 Network Exchange Pty Ltd v MRG International Communications Pty Ltd (1994) 12 ACLC 594 at 599; Bovis Lendlease v Wiley [2003] NSWSC 467; (2003) 21 ACLC 1737 Texts Cited: BH McPherson, M Gronow, R Mason, McPherson's Law of Company Liquidation, Thomson Reuters Legal Online Category: Principal judgment Parties: Nicholas Viropoulos (Plaintiff) Falcon G.T. Pty Limited (In Liq) (Defendant) Representation: M Rosenblatt, solicitor (Plaintiff) L Harris, solicitor (Defendant) Somerset Ryckmans (Plaintiff) Back Schwartz Vaughan (Defendant) File Number(s): 2011/245706