FEDERAL COURT OF AUSTRALIA

Deputy Commissioner of Taxation v West Apartments Pty Ltd (in liq) [2012] FCA 222

THE COURT:

1.    Grants leave to the applicant Mark Damian Roufeil to file in Court the interlocutory process dated 9 March 2012, returnable instanter.

2.     Notes the undertaking of counsel given on behalf of Mr Roufeil to pay the relevant filing fee in relation to the interlocutory process.

3.    Orders that pursuant to s 473(7) of the Corporations Act 2001 (Cth) Peter Marsden, an official liquidator, be appointed as liquidator of West Apartments Pty Ltd (in liquidation) ACN 106 212 971, such order to take effect immediately upon the filing and lodging of a memorandum of resignation by Mark Damian Roufeil in accordance with r 7.1 of the Federal Court (Corporations) Rules 2000.

Note:    Settlement and entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

1    The applicant is the liquidator of West Apartments Pty Ltd (in liquidation), the defendant in the principal proceeding. The applicant was appointed liquidator on 2 March 2012.

2    Unbeknown to the applicant at that time, his firm had acted as investigating accountants in respect of a large group of companies known as the Demian Group on behalf of a secured creditor, Westpac Banking Corporation. Although the applicant had carried out conflict searches prior to consenting to his appointment as liquidator of the defendant, the fact that his firm had been appointed as investigating accountants was not revealed to him. The defendant is part of the Demian Group.

3    In view of the activities carried out by his firm he is concerned that there could be an appearance of a lack of impartiality on his part in the execution of his duties as liquidator of the defendant. For this reason he has considered it appropriate to resign his office under s 473(1) of the Corporations Act 2001 (Cth) (the Act). To that end, he has executed on 8 March 2012 a notice of resignation. Pursuant to r 7.1 of the Federal Court (Corporations) Rules 2000 (the Rules) that resignation will take effect immediately upon the filing of the notice in the registry.

4    The matter for immediate concern is that the vacancy in the office of liquidator of the defendant must be filled. That office can only be filled by order of the Court under s 473(7) of the Act.

5    Peter Marsden of RSM Bird Cameron is an official liquidator and has consented to be appointed by the Court to act as liquidator of the defendant in lieu of Mr Roufeil. The form of consent has been given in accordance with r 5.5 of the Rules.

6    The reason for this matter coming before the Court today is that Mr Roufeil became aware of a contract for sale of one of the properties owned by the defendant during the course of his initial investigations into the defendant’s affairs. The contract for sale is dated 14 December 2011. It will be necessary for that contract to be considered and evaluated prior to the proposed settlement date.

7    Mr Marsden has informed Mr Roufeil that he is in a position to replace him as liquidator and that there is no conflict in him so doing.

8    In all the circumstances I am satisfied that it is appropriate that Mr Marsden be appointed as liquidator of the defendant.

9    A question has arisen as to the appropriate form of the order to be made. I have been referred to the decision of Barrett J in Re Application of Vouris (2004) 49 ACSR 543 in which his Honour discusses the appropriateness of a conditional order being made of the kind for which the applicant now moves.

10    In light of his Honour’s analysis in [5] and [6] of Vouris and in Free & Ors [2010] NSWSC 1079 at [8] to [11], to which I was also referred, I am satisfied that the orders sought are appropriate in all the circumstances.

Associate:

Dated:    12 March 2012