Federal Court of Australia
Nissan Motor Co (Australia) Pty Ltd v HiRide Pty Ltd (in liq), in the matter of HiRide Pty Ltd (in liq) [2021] FCA 599
ORDERS
DATE OF ORDER: |
1. The Plaintiff’s Originating Process filed 31 May 2021 is to be made returnable instanter.
2. Pursuant to s 90-15(1) of Schedule 2 of the Corporations Act 2001 (Cth), Matthew Gollant be removed as liquidator of HiRide Pty Limited (in liquidation) ABN 66 639 408 478 and Sule Arnautovic be appointed as liquidator in his place.
3. There be no order as to costs in relation to this application.
THE COURT NOTES THAT:
4. Mr David Farrar, solicitor for the Plaintiff, has provided his undertaking to give notice to each of Mr Gollant and Mr Arnautovic of the orders made.
5. Mr Gollant’s removal is to take effect immediately before Mr Arnautovic is appointed in his place so that there is no gap in the office of liquidator being filled.
6. The Plaintiff will file any Amended Originating Process by 4 pm on Thursday, 3 June 2021.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
(REVISED FROM TRANSCRIPT)
1 In an urgent application in the commercial and corporations duty list, the Plaintiff, Nissan Motor Co (Australia) Pty Ltd (NMA), sought an order replacing the liquidator of the First Defendant, HiRide Pty Ltd (in liquidation) (HiRide), with an alternate liquidator.
2 NMA’s application was supported by an affidavit of Mr Farrar, solicitor, and correspondence was tendered of communications between Mr Farrar and Mr Gollant, the Second Defendant and incumbent liquidator. Mr Gollant was on notice of the application. By correspondence dated 1 June 2021, he had indicated that he neither consented to nor opposed the application.
3 The evidence relied on by NMA established the following history giving rise to the present application.
4 HiRide was incorporated on 27 February 2020. From around mid-April 2020 NMA agreed to, and did provide, vehicles to HiRide. By early 2021, NMA was experiencing difficulty in obtaining payment from HiRide in respect of those vehicles.
5 On 13 April 2021, Mr Tricarico was appointed as sole director and secretary of HiRide, and Mr Orlando, who had been the sole director and secretary of HiRide from 27 February 2020 (the date of incorporation), resigned his position as director and secretary.
6 On 12 May 2021, NMA sent a letter of demand to HiRide to pay a debt exceeding 1.5 million by 14 May 2021, failing which urgent legal action without further notice was foreshadowed. The letter included a schedule itemised by reference to outstanding invoices, the dates of which cover the period from 14 January 2021 to 28 April 2021.
7 On 14 May 2021, Mr Gollant was appointed as liquidator pursuant to a creditors’ voluntary liquidation and HiRide ceased trading. NMA received email notification of Mr Gollant’s appointment at 3.59 pm on 14 May 2021. Mr Gollant subsequently provided NMA with a copy of a purported loan agreement pursuant to which HiRide lent to a company, Fiero Pty Limited (Fiero), the sum of 1.6 million. On its face, the loan agreement is dated 4 May 2021 and executed by Mr Tricarico as sole director and secretary of HiRide and by Mr Orlando as sole director and secretary of Fiero.
8 Mr Tricarico signed a summary of affairs of the company in his capacity as director of HiRide. In that summary no reference is made in the assets section to any loan made by HiRide to Fiero and the liabilities section acknowledges the debt due to NMA as the only unsecured liability.
9 Correspondence between NMA’s solicitor and Mr Gollant in relation to replacing him as a liquidator with Mr Arnautovic was exchanged on 18 May 2021. In the course of that correspondence, Mr Gollant noted that NMA was the only creditor of HiRide as at that stage of his investigations.
10 Mr Arnautovic has provided his consent to act as liquidator and also his declaration of independence, relevant relationship and indemnities. In that document Mr Arnautovic noted that the referrer, on behalf of NMA, has agreed to an up-front payment to cover his initial remuneration and expenses associated with the liquidation of HiRide and that there were, amongst other things, no conditions on the conduct or outcome of the liquidation attached to the provision of those funds.
11 In accordance with NMA’s request of 18 May 2021, Mr Gollant sent a circular to creditors on 21 May 2021 convening a meeting on Monday, 7 June 2021 for the purpose of either approving his remuneration as liquidator or, alternatively, subject to a creditors’ vote, appointing an alternative liquidator in his stead, namely, Mr Arnautovic. Given that NMA is the only known creditor of HiRide, the outcome of the creditors’ meeting, if held will in all likelihood result in Mr Arnautovic replacing Mr Gollant as the liquidator of HiRide.
12 Mr Farrar, the solicitor for NMA, submitted that concerns in relation to dissipation made it necessary to apply to the Court and not wait for the meeting which is due to occur on Monday, 7 June 2021. I accept that prudence dictates that the Court intervene to make an order facilitating Mr Arnautovic’s immediate appointment. Accordingly, I am satisfied that having regard to the power conferred by section 90-15 (1) of the Insolvency Practice Schedule (Corporations) that it is appropriate and in the interests of the company in liquidation and its creditors to make the orders sought in the Originating Process filed 31 May 2021.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cheeseman j. |
