FEDERAL COURT OF AUSTRALIA

Taylor (Trustee), in the matter of Kwok v Goldana Investments Pty Limited (receivers and managers appointed) (No 4) [2016] FCA 1078

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to section 480(d) of the Corporations Act, Richard Stone be released and discharged as liquidator of Goldana and ASIC deregister Goldana Investments Pty Ltd ACN: 073 235 275.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

WIGNEY J:

1    Mr Richard Stone is the liquidator of Goldana Investments Proprietary Limited. Goldana was wound up on 27 August 2015. In this application, Mr Stone applies for an order pursuant to s 480(d) of the Corporations Act 2011 (Cth) that he be discharged as liquidator and that the Australian Securities and Investments Commission deregister Goldana. The background to this application is contained in previous judgments of this Court, in particular, Taylor (Trustee), in the matter of Kwok v Goldana Investments Pty Limited (receivers and managers appointed) (No 3) [2016] FCA 515.

2    Section 480 of the Corporations Act provides as follows:

When the liquidator:

(a)    has realised all the property of the company or so much of that property as can in his or her opinion be realised without needlessly protracting the winding up, and has distributed a final dividend (if any) to the creditors and adjusted the rights of the contributories among themselves and made a final return (if any) to the contributories; or

(b)    has resigned or has been removed from office;

he or she may apply to the Court:

(c)    for an order that he or she be released; or

(d)    for an order that he or she be released and that ASIC deregister the company.

3    Mr Stone’s affidavit evidence establishes that he has realised all the property of Goldana, has distributed a final dividend to the sole creditor of Goldana, and has made a final return to the sole contributory. The preconditions to the making of an order under s 480(d) have therefore been satisfied.

4    Rule 7.5 of the Federal Court (Corporation) Rules 2000 (Cth) contains a number of procedural requirements that should be satisfied by an applicant for an order under s 480(d) of the Act. Rule 7.5(2) provides as follows:

(2)    The interlocutory process seeking the order must include:

(a)    a notice stating that any objection to the release of the liquidator must be made by filing and serving a notice of objection, in the prescribed form, within 21 days after the date of service of the interlocutory process; and

(b)    a statement setting out the terms of subsection 481 (3) of the Corporations Act.

5    Mr Stone has not complied with that rule. Nevertheless, in the particular circumstances of this case it would be appropriate to dispense with the requirement in r 7.5(2). Those circumstances, in short, are that the sole creditor of Goldana was paid out in full and the surplus was distributed to the sole contributory. This was a very straightforward liquidation. The prospect of there being any objection to the release of the liquidator was almost non-existent. It was therefore unnecessary for the interlocutory application to contain a notice in relation to objection to the release of the liquidator, or a statement setting out the terms of s 481(3) of the Corporations Act.

6    Rules 7.5(3), (4) and (5) of the Corporations Rules describe the matters that must be set out in and annexed to the affidavit in support of an application under s 480(d). It is unnecessary in the circumstances to set out in detail all of those procedural requirements; suffice it to say that having read Mr Stone’s affidavits, I am satisfied that each of the requirements in r 7.5(3), (4) and (5) were satisfied.

7    The only point I would wish to add concerns the remuneration paid to Mr Stone as liquidator. The remuneration paid to the liquidator is one of the matters that must be referred to in the supporting affidavit: r 7.5(3)(k). That has been attended to in Mr Stone’s affidavit. Mr Stone’s remuneration for this straightforward liquidation exceeded $40,000. While Mr Stone’s remuneration was approved pursuant to s 473 of the Corporations Act, for the reasons given in Taylor No. 3, it is at least doubtful that the level of his remuneration has ever been properly or carefully scrutinised. It seems at first blush to be somewhat excessive. Nevertheless, for the reasons also given in Taylor No. 3 at [7], it is at least doubtful that the Court has power to review the approval, or Mr Stone’s remuneration, in these circumstances. It is equally doubtful that any such review would be warranted or of any utility.

8    Rule 7.5(6) of the Corporations Rules provides as follows:

(6)    Unless the Court otherwise orders, the liquidator must serve by prepaid post, on each creditor who has proved a debt in the course of the winding up, and on each contributory, a copy of the interlocutory process accompanied by:

(a)    a copy of the summary of the liquidator's receipts and payments in winding up the company; and

(b)    a copy of the statement of the financial position of the company at the date when the interlocutory process seeking release was filed.

9    Mr Stone has not complied with that rule. Nevertheless, for the essentially same reasons as I gave in relation to r 7.5(2), it is appropriate that compliance with that rule be dispensed with. Again, there was only one creditor who was paid out in full. The sole contributory has received the final distribution. Service of the interlocutory application on those persons was unnecessary in all the circumstances. It would have served no real purpose given that neither the creditor nor the contributory were likely to raise any objection to the release of the liquidator.

10    For those reasons it is appropriate to make the orders sought by Mr Stone.

11    Orders are accordingly made in accordance with the short minutes of order.

Associate:

Dated:    31 August 2016