In the matter of Anne Lewis Pty Limited [2016] NSWSC 1860

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Anne Lewis Pty Limited [2016] NSWSC 1860 Hearing dates: 9 November 2016 Decision date: 09 November 2016 Jurisdiction: Equity - Corporations List Before: Black J Decision: The Court makes the following orders and directions (as well as ancillary orders):

1. Pursuant to s 488(2) of the Corporations Act 2001 (Cth), special leave be granted to the liquidator to make an interim distribution of the surplus in the liquidation of Anne Lewis Pty Limited ("Company") in the manner specified.

2. Direct pursuant to s 479 of the Corporations Act, that the liquidator would be justified in distributing the surplus, including the interim distribution the subject of Order 1, by making an in specie distribution of the Share Portfolio.

3. Direct pursuant to s 479 of the Corporations Act, that the liquidator would be justified in calculating the distribution to be made to the First Defendant by making adjustments in the manner specified.

4. Pursuant to reg 5.6.71 of the Corporations Regulations 2001 (Cth), the order authorising the distribution of surplus of the Company need not have annexed to it a schedule in accordance with Form 551.

5. The requirements of r 7.9(2) of the Corporations (Supreme) Court Rules 1999 (NSW) be dispensed with.

6. The liquidator's retainer with his solicitors be approved nunc pro tunc pursuant to s 477(2B) of the Corporations Act.

7. Costs of the application to form part of the costs of the winding up. Catchwords: CORPORATIONS – winding up – liquidators – where liquidator of company sought special leave under s 488(2) of the Corporations Act 2001 (Cth) to make interim distribution of surplus in the liquidation – where contributory who was to receive distribution in the company's winding up also had liability to make payments to the company – whether special leave to make interim distribution of surplus ought be granted – whether direction that liquidator would be justified in distributing the surplus by an in specie distribution of the share portfolio should be made – whether liquidator would be justified in calculating distribution to be made to contributory by making adjustments for the contributory's liability to make payments to the company – whether orders ought to be made dispensing with requirements under reg 5.6.71 of the Corporations Regulations 2001 (Cth) and r 7.9(2) of the Supreme Court (Corporations) Rules 1999 (NSW) – whether the Court should approve nunc pro tunc the liquidator's retainer with his solicitors under s 477(2B) of the Corporations Act 2001 (Cth). Legislation Cited: - Companies Act 1936 (NSW) - Corporations Act 2001 (Cth), ss 124, 477, 479, 488, - Corporations Regulations 2001 (Cth), reg 5.6.71 - Supreme Court (Corporations) Rules 1999 (NSW), r 7.9 Cases Cited: - CGU Workers Compensation (NSW) Ltd v Ascom Service Automation (Australia) Pty Ltd [2005] NSWSC 747 - Cherry v Boultbee (1838) 41 ER 171 - Longley v ACN 090 609 868 Pty Ltd (in liq) [2010] FCA 1468; (2010) 81 ACSR 517 - Official Trustee in Bankruptcy v Buffier [2006] NSWSC 870 - Re Allseal Floor Preparations Pty Ltd (in liq) [2015] NSWSC 1990 - Re D S Millard & Son Pty Ltd (1997) 24 ACSR 71 - Re FAI Car Owners Mutual Insurance Company Pty - Ltd [2009] NSWSC 1350; (2009) 76 ACSR 164 - Re HIH Services Pty Ltd (in liq) [2012] NSWSC 1188 Category: Principal judgment Parties: Hugh Charles Thomas as liquidator of Anne Lewis Pty Ltd (in liq) (Plaintiff) Pamela Lewis (First Defendant) Peter Howarth Lewis (Second Defendant) Roger Lewis (Third Defendant) Representation: Counsel: S Golledge (Plaintiff/Liquidator) G D McDonald (First Defendant)