In the matter of Bellafountain Pty Ltd [2017] NSWSC 391

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Bellafountain Pty Ltd [2017] NSWSC 391 Hearing dates: 23 March and 4 April 2017 Decision date: 11 April 2017 Before: Gleeson JA Decision: (1) Order, pursuant to s 477(2B) of the Corporations Act 2001 (Cth) approving the plaintiff as liquidator of Bellafountain Pty Ltd (in liq) entering into the agreements referred to in the schedule on behalf of the company, notwithstanding that the terms of the agreement may end and/or obligations of parties to the agreement may, according to the terms of the agreement, be discharged more than three months after the agreement is entered into. (2) Order that the liquidator's costs and expenses of this application be costs and expenses in the liquidation. (3) Direct these orders be entered forthwith.

Schedule

(a) An agreement in or substantially to the effect of the costs agreement between the plaintiff and Kent Attorneys as set out in annexure "Q" to the affidavit of Angus Carnegie Gordon sworn 9 March 2017. (b) An agreement in or substantially to the effect of the costs agreement between the plaintiff and Kent Attorneys as set out in annexure "R" to the affidavit of Angus Carnegie Gordon sworn 9 March 2017. Catchwords: CORPORATIONS – application by liquidator for approval of entry into contracts of more than three months duration under Corporations Act s 477(2B) – where objection by directors and related party creditors to liquidator retaining solicitors who have previously acted for the petitioning creditor – whether retention of solicitors compromises independence of liquidator – whether reasonable apprehension of bias if liquidator retains those solicitors. Legislation Cited: Corporations Act 2001 (Cth), ss 459G, 477(2B), 596A, 596B, 597 Corporations Rules, r 2.13(1) Cases Cited: Advance Housing Pty Ltd (in liq) v Newcastle Classic Developments Pty Ltd (1994) 14 ACSR 230 Australian Property Holdings Custodian Limited v Capital Finance Australia Ltd and Ors [2012] VSC 124 Commonwealth Bank of Australia v Fernandez (2011) ACSR 262 Re ACN 151 726 224 Pty Ltd (in liq) previously Ridley Capital Holdings Pty Ltd [2016] NSWSC 1801 Re Anglican Development Fund Diocese of Bathurst Board (recs and mgrs apptd) [2015] NSWSC 6 Re Biposo Pty Ltd; ex parte Condon v Rogers (1995) 120 FLR 404 Re Colorado Products Pty Limited (in prov liq) [2013] NSWSC 1613 Re G A Listing & Maintenance Pty Ltd (1994) 15 ACSR 308 Re HIH Insurance Ltd [2004] NSWSC 5 Re HIH Overseas Holdings Ltd (in prov liq) [2001] NSWSC 426 Re Kala Capital Pty Ltd (in liq) [2012] NSWSC 1073 Re Laurie Cottier Productions Pty Ltd (in liq) (1992) 9 ACSR 513 Re Mustang Marine Australia Services Pty Limited [2012] NSWSC 620 Re National Safety Council of Australia, Victorian Division [1990] VR 29 Re Smarter Way (2000) 35 ACSR 595 Re Spedley Securities Ltd (in liq) (1992) 9 ACSR 83 State Bank (NSW) v Turner Corporation Ltd (1994) 14 ACSR 480 Category: Principal judgment Parties: Angus Carnegie Gordon as Liquidator of Bellafountain Pty Ltd (Plaintiff) Bellafountain Pty Ltd (First Defendant) Representation: Counsel: Mr S Golledge (Plaintiff) Mr DR Stack (Defendants) (Interested Persons)