Supreme Court New South Wales Medium Neutral Citation: In the Matter of Access MMS Pty Ltd [2012] NSWSC 1199 Hearing dates: 18 June 2012 Decision date: 18 June 2012 Jurisdiction: Equity Division - Corporations List Before: Brereton J Decision: That the plaintiff is the duly appointed liquidator of the first defendant Catchwords: CORPORATIONS - voluntary winding up - whether liquidator duly appointed - whether special resolution appointing liquidator was properly carried - operation of presumption that writing prepared by ASIC from Legislation Cited: (Cth) Corporations Act 2001, s 491(1), s 497(11), s 499(1), s 1274B Category: Principal judgment Parties: Steven Arthur Gladman (Plaintiff) Access MMS Pty Ltd (First Defendant) Tony Buscemi Deveux (Second Defendant) Jamie Jackson-Proud (Third Defendant) Thomas James Levar (Fourth Defendant) Andrea Joan Jackson (Fifth Defendant) Harold Van Haltren (Sixth Defendant) Australian Securities and Investment Commission (Seventh Defendant) Representation: Counsel: R D Marshall (Plaintiff) (ex parte) Solicitors: Bartier Perry (Plaintiff) File Number(s): 12/164447 Judgment (ex tempore) 1HIS HONOUR: By originating process filed on 23 May 2012, the plaintiff Steven Arthur Gladman, the putative liquidator of the first defendant Access MMS Pty Ltd, claims a declaration that he was validly appointed as voluntary liquidator of the company on 23 December 2011 and, alternatively, a declaration that he was not so appointed and consequential orders. 2On 23 December 2011, the second defendant Tony Buscemi Deveux, purportedly as sole director of the company, resolved that an Extraordinary General Meeting ("EGM") of the company be convened and held as soon as practicable for the purpose of considering and, if thought fit, resolving that the company is unable to pay its debts as and when they fall due; that the company be wound up voluntarily; and that the plaintiff be appointed liquidator. On the same day Mr Deveux, purportedly as sole shareholder of the company, tabled his written authority permitting an EGM to be held at short notice, the consent of the plaintiff as liquidator to act, and a report as to affairs, and resolved, inter alia, "that as the company is unable to pay its debts as and when they fall due the company be wound up voluntarily and that Steven Gladman be appointed liquidator for the purposes of such winding up". 3On 5 January 2012, at 11am, the liquidator convened a meeting of creditors of the company. The Chair confirmed that the plaintiff was the liquidator, advised that creditors may resolve pursuant to (Cth) Corporations Act 2001, s 497(11), to remove the liquidator from office and appoint someone else as liquidator, and asked if creditors wished to nominate another person to act as liquidator. There being no other nominations, the Chair purported to note, in accordance with s 499(1) of the Act, that the plaintiff would remain as liquidator of the company. 4Subsequently, the sixth defendant, Harold van Haltren, raised issue with the liquidator, suggesting that Mr Deveux had not been duly appointed as sole director and shareholder, and that the true shareholders were Jamie Jackson-Proud, Tomas James Levar and Andrea Joan Jackson, whose shares had purportedly been transferred to Mr Deveux on 23 June 2011, notice of which was lodged with ASIC in a Form 484 (change to company details) only on 22 December 2011, the day before the liquidator's appointment. The three previous shareholders have been joined, and evidence provided of service of the proceedings on them. Although it seems that personal service was not effected on Jamie Jackson Proud, other evidence establishes that the proceedings have come to his notice. ASIC has also been notified of the application, and has indicated that it neither consents to nor opposes the relief sought. 5If Mr Deveux was not the sole shareholder of the company on 23 December 2011, then there would have been no valid special resolution, for the purposes of s 491(1), that the company be wound up voluntarily. That is so whether or not the appointment of the liquidator was subsequently confirmed - or, more accurately, not varied - by the creditors meeting. Accordingly, the essential question is whether Mr Deveux was the sole shareholder and director as at the date of the purported special resolution. 6A search of the national database made on 23 December 2011 shows, under the heading Shareholders, Mr Deveux as the only current shareholder, holding one hundred ordinary shares, with Ms Jackson, Mr Proud-Jackson and Mr Levar as "ceased" or "former" shareholders. This, therefore, supports the proposition that at the relevant date Mr Deveux was the only shareholder. Section 1274B provides that in a proceeding in a court, a writing that purports to have been prepared by ASIC is admissible as prima facie evidence of the matters stated in so much of the writing as sets out what purports to be information obtained by ASIC by using a data processor from the national database: in other words, the writing is proof of such a matter in the absence of evidence to the contrary. The search to which I have referred was prepared by ASIC from information it obtained by using a data processor from the national database; accordingly, it attracts the operation of the presumption in s 1274B(2). There is no real evidence to the contrary. All that is before the court is evidence that Mr van Haltren has made some assertions to the contrary. None of the defendants have appeared to tender any such evidence. Some of them have indicated consent to the plaintiff remaining or being appointed "as receiver and manager of the company effective from 22 November 2011", although also indicating consent to the alteration of the shareholding and directorships to reinstate the previous arrangements, which were sought by way of alternative relief. 7On the current state of the evidence, and bearing in mind that the defendants have been given an opportunity to adduce evidence if they wish, the presumption prevails, and accordingly the evidence establishes that Mr Deveux was the sole shareholder at the date of the purported special resolution and, therefore, that the special resolution was duly carried. 8I declare that on 23 December 2011, the first defendant resolved by special resolution that it be wound up voluntarily, and that the plaintiff is the duly appointed liquidator of the first defendant. ********** 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. Decision last updated: 18 October 2012