In the matter of Vivo International Corporation Pty Limited (in liquidation) [2015] NSWSC 1556

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Vivo International Corporation Pty Limited (in liquidation) [2015] NSWSC 1556 Hearing dates: 25 August 2015 Date of orders: 25 August 2015 Decision date: 25 August 2015 Jurisdiction: Equity - Corporations List Before: Brereton J Decision: Judicial advice given to the effect that the first plaintiff, in his capacity as liquidator of the second plaintiff, would not be justified in recovering from the DOCA termination sum his remuneration, costs and expenses incurred in respect of and incidental to his position as liquidator of the second plaintiff or in paying the balance of the DOCA termination sum to the first defendant; but that the liquidator would be justified in retaining his costs of these proceedings on the indemnity basis out of the DOCA termination sum and paying the balance thereof to the second and third defendants in equal shares. Catchwords: CORPORATIONS – winding up – liquidators – recovery of liquidator's remuneration, costs and expenses and payment of balance from moneys paid by defendants to company – where moneys received by liquidator in satisfaction of condition imposed in prior proceedings – whether funds generally of the company in liquidation – Quistclose trust – whether defendant's claim to retrieve funds assigned by settlement deed. Legislation Cited: (CTH) Corporations Act 2001, s 436A, s 439A, s 564, s 747(3) (NSW) Supreme Court Act 1970, s 23 (NSW) Trustee Act 1925, s 63, s 81 Cases Cited: Barclays Bank Limited v Quistclose Investments Limited [1968] UKHL 4; [1970] AC 567 TiVo, Inc v Vivo International Corporation Pty Ltd (subject to deed of company arrangement) [2014] FCA 789 Category: Principal judgment Parties: Adam Edward Patrick Farnsworth in his capacity as liquidator of Vivo International Corporation Pty Limited (in liquidation) ACN 087 480 171 (first plaintiff) Vivo International Corporation Pty Limited (in liquidation) ACN 087 480 171 (second plaintiff) Confusio Pty Ltd ACN 601 107 635 (first defendant) Tivo, Inc (second defendant) Tivo Brands, LLC (third defendant) Representation: Counsel: D R Stack (plaintiffs) F Assaf (first defendant)