In the matter of Bean & Sprout Pty Ltd (admin apptd) [2018] NSWSC 351

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Bean & Sprout Pty Ltd (admin apptd) [2018] NSWSC 351 Hearing dates: 13 and 14 February 2018 Decision date: 20 March 2018 Jurisdiction: Equity - Corporations List Before: Black J Decision: Declaration made under s 447C(2) of the Corporations Act 2001 (Cth) that Mr Kong Yao Chin was not validly appointed as voluntary administrator of the First Defendant pursuant to s 436A of the Corporations Act. Catchwords: CORPORATIONS – voluntary administration – whether company is insolvent pursuant to Corporations Act 2001 (Cth) s 95A – whether opinion as to current or likely future insolvency formed by director on reasonable grounds pursuant to Corporations Act 2001 (Cth) s 436A – whether appointment of voluntary administrator within power and for proper purpose.

CORPORATIONS – application for rectification of records maintained by Australian Securities and Investments Commission pursuant to s 1322 of the Corporations Act 2001 (Cth) – where ASIC is not joined as party to the proceedings – whether Court has power to order rectification of the register maintained by ASIC. Legislation Cited: - Corporations Act 2001 (Cth) ss 95A, 128, 129, 249B, 436A, 447A, 447C, 1322 - Evidence Act 1995 (NSW) s 136 Cases Cited: - Australian Securities and Investments Commission v Plymin (No 1) [2003] VSC 123; (2003) 175 FLR 124 - Cadwallader v Bajco Pty Ltd [2001] NSWSC 1193 - Condor Blanco Mines Ltd [2016] NSWSC 1196 - Deputy Commissioner of Taxation v Peter Sleiman Investments Pty Ltd as trustee for the Sleiman Family Trust [2016] NSWSC 1657 - Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 - Kazar v Duss [1998] FCA 1378; (1998) 88 FCR 218 - Lewis (as liquidator of Doran Constructions Pty Ltd) v Doran [2005] NSWCA 243; (2005) 219 ALR 555 - Peter Sleiman Investments Pty Ltd (Trustee for Sleiman Family Trust) v Deputy Commissioner of Taxation [2016] NSWCA 355 - Re Centura Global Holdings Pty Ltd [2016] NSWSC 62 - Re Gladstone Mortgagee No 1 Pty Ltd [2015] NSWSC 1551 - Re Lime Gourmet Pizza Bar (Charlestown) Pty Ltd (formerly under administration) [2015] NSWSC 244 - Re MIG Property Services Pty Ltd (No 2) [2012] VSC 606 - Re Sydney Project Group Pty Ltd (admins apptd) (recs and mgrs apptd) [2017] NSWSC 881 - Re Warwick Keneally as administrator of Australian Blue Mountain International Cultural & Tourist Group Pty Ltd (admin apptd) [2015] NSWSC 937 - Southern Cross Interiors Pty Ltd (in liq) v Deputy Commissioner of Taxation [2001] NSWSC 621; (2001) 53 NSWLR 213 - Wagner v International Health Promotions (1994) 15 ACSR 419 Category: Principal judgment Parties: Kong Yao Chin in his capacity as administrator of Bean & Sprout Pty Ltd (admin apptd) (Plaintiff) Bean & Sprout Pty Ltd (admin apptd) (First Defendant) Jiayi Hui (Second Defendant) Jianshu Li (Third Defendant) Weiguang Huang (Fourth Defendant) Representation: Counsel: D Turner (Plaintiff) T Fishburn (Second and Third Defendants) M Rosenblatt (Solicitor – Fourth Defendant)