In the matter of Asheville Pacific Pty Limited (subject to a deed of company arrangement) [2015] NSWSC 2047

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Asheville Pacific Pty Limited (subject to a deed of company arrangement) [2015] NSWSC 2047 Hearing dates: 20 April 2015 Date of orders: 20 April 2015 Decision date: 20 April 2015 Jurisdiction: Equity - Corporations List Before: Brereton J Decision: Liquidator removed; orders made for appointment of replacement liquidator. Catchwords: CORPORATIONS – winding up – liquidators – removal of liquidator – where liquidator seeking to convene final meeting to complete liquidation – where plaintiff seeks public examinations to recover additional assets – whether desirable, in the interests of creditors, that further investigations be made – where propriety of liquidator's conduct not in issue – held, liquidator removed and replaced. Legislation Cited: (Cth) Corporations Act 2001, s 471B, s 503 Category: Procedural and other rulings Parties: Martinique Pty Ltd (ACN 003 434 955) (plaintiff) Chris Wykes (first defendant) Asheville Pacific Pty Ltd (in liquidation) (ACN 003 932 375) (second defendant) Representation: Counsel: T Orlizki (plaintiff)

Solicitors: Kent Attorneys (plaintiff) Uther Webster & Evans (defendants) File Number(s): 2015/89873

Judgment (ex tempore) 1. HIS HONOUR: By originating process filed on 25 March 2015, the plaintiff Martinique Pty Ltd, a creditor of the second defendant Asheville Pacific Pty Ltd (in liquidation), seeks an order pursuant to (Cth) Corporations Act 2001, s 471B, granting leave to begin and proceed with these proceedings (to the extent that leave is required) and an order pursuant to s 503 removing the first defendant Chris Wykes as liquidator and appointing Angus Gordon of Macquarie Gordon & Co, who has consented to act as liquidator in his place. 2. The present liquidator is of the view that the liquidation is practically complete, and has convened a final meeting with that in mind. The plaintiff wishes to have public examinations of certain persons conducted, with a view to endeavouring to recover additional assets for the liquidation, the plaintiff and other creditors having so far received a dividend of 81.58 cents in the dollar. 3. It is unnecessary, in the present context, to form any view as to whether or not the liquidator has been appropriately diligent and impartial in the conduct of this liquidation because, as I apprehend it, the essence of the application does not depend on any misconduct on the part of the liquidator but simply on the desirability, in the interests of creditors and where there is someone willing to act and a creditor willing to fund it, that further investigations be made. Accordingly, no conclusion adverse to the present liquidator should be read into the orders that will be made in these proceedings. 4. I do not consider that an application seeking an order removing and replacing a liquidator is a proceeding against a company within s 471B, and accordingly it does not seem to me that leave under that section to proceed is required. 5. The Court orders that: 1. Pursuant to Corporations Act, s 503, the first defendant Chris Wykes be removed as liquidator of the second defendant Asheville Pacific Pty Ltd and that Angus Gordon of Macquarie Gordon & Co be appointed as liquidator in his place. 2. 75 per cent of the hearing allocation fee be remitted. 3. The plaintiff's costs of the proceedings be costs in the winding up. 1. These orders are to be entered forthwith.