FEDERAL COURT OF AUSTRALIA
Smith in the matter of Actively Zoned Pty Ltd (in liq) [2012] FCA 605
IN THE FEDERAL COURT OF AUSTRALIA | |
DATE OF ORDER: | |
WHERE MADE: |
THE COURT ORDERS THAT:
1. An order pursuant to s 436B(2) of the Corporations Act 2001 (the Act) that leave be granted for the Applicant to appoint himself as administrator of the defendant, Actively Zoned Pty Ltd (in liq) ACN 129 752 414.
2. An order pursuant to s 447A of the Act that the first meeting of creditors to be held pursuant to s 436E of the Act be dispensed with.
3. The application for the relief sought in paragraph 2 of the interlocutory process be adjourned to 20 July 2012 before the Registrar.
4. The applicant’s costs of the application and the hearing be costs of the administration, or in the alternative costs of the winding up.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
NEW SOUTH WALES DISTRICT REGISTRY | |
GENERAL DIVISION | NSD 239 of 2012 |
BETWEEN: | MICHAEL JOHN MORRIS SMITH IN HIS CAPACITY AS LIQUIDATOR OF ACTIVELY ZONED PTY LTD (IN LIQ) ACN 129 752 414 Applicant DEPUTY COMMISSIONER OF TAXATION Plaintiff
|
AND: | ACTIVELY ZONED PTY LTD (IN LIQ) ACN 129 752 414 Defendant
|
JUDGE: | JACOBSON J |
DATE: | 8 JUNE 2012 |
PLACE: | SYDNEY |
REASONS FOR JUDGMENT
1 This is an application filed on 21 May 2012, under which the applicant in his capacity as liquidator of the defendant seeks, inter alia, an order under s 436B(2) of the Corporations Act 2001 (Cth) that the applicant have leave to appoint himself administrator of the company. The application is supported by an affidavit of Mr Michael John Morris Smith, who is the liquidator and who seeks the order that I have mentioned. Detailed written submissions supporting the application have been filed by the solicitor for the applicant.
2 The authorities which have considered the exercise of the power under s 436B(2) are collected in a decision of Finkelstein J in Re Origin Internet Solutions Pty Limited (in liq) [2004] FCA 382 at [5]. As his Honour said at [6]:
Although the court is not unduly constrained in the way it exercises the discretion conferred by s 436B(2) … the most important consideration is to ensure that there is no conflict of duty or interest if the liquidator is appointed as administrator.
3 I am satisfied for the reasons explained in Mr Smith’s affidavit that there is no relevant relationship with the company, and accordingly, in the circumstances, there are no grounds to suggest any real potential for any conflict of interest or other considerations of commercial morality which would preclude him from being appointed as administrator of the company.
4 The reason why Mr Smith seeks to be appointed as administrator is that he believes that there is the possibility of the proposal of a deed of company arrangement (DOCA). Mr Smith’s investigations indicate that the company is insolvent and that there would not be likely to be any return to creditors if the company continues in liquidation. However, he is of the opinion that the creditors may receive a return if the company enters into a DOCA upon the basis set out in paragraphs 10 and 11 of his affidavit.
5 In these circumstances, it seems to me that the objectives stated in Part 5.3A of the Corporations Act are satisfied and that this is a proper basis for the exercise of the power conferred upon me.
6 The creditors include the Deputy Commissioner of Taxation, who does not oppose the application. Also, I have been informed that ASIC does not oppose the present application. I will therefore make an order in terms of paragraph 1 of the interlocutory application.
7 The matter will be adjourned to 20 July 2012 before the Registrar and I will make orders in terms of paragraphs 1 to 4 of the short minutes of order, which I will sign and date and place with the court file.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. |
Associate:
