[2015] NSWSC 2051

In the matter of Dave Lahood Pty Limited

Order for interim distribution of surplus made.

Catchwords

CORPORATIONS – winding up – liquidators – distribution of surplus – application for special leave to distribute surplus – special leave granted.

Legislation cited

(Cth) Corporations Act 2001, § 488(2)
(Cth) Corporations Regulations 2001, reg 5.6.71
(NSW) Supreme Court (Corporations) Rules 1999, reg 7.9

Judgment

[1]
HIS HONOUR: The applicants Simon Cathro and Phillip Campbell-Wilson were appointed provisional liquidators of the company Dave Lahood Pty Limited on the application of the plaintiff Paul Andrew Leroy as trustee of the bankrupt estate of David Lahood by order made on 10 May 2013. The company was wound up and they were appointed liquidators by order made on 2 September 2013. The liquidators have realised the assets, called for proofs of debt, and paid all known creditors, and there remains after payment of creditors some $875,918. By interlocutory process filed on 2 April 2015, the applicant liquidators apply for special leave pursuant to (Cth) Corporations Act 2001, s 488(2), to make an interim distribution of surplus to the plaintiff who is the trustee in bankruptcy of the sole contributory Dave Lahood.
[2]
On an application under Corporations Act, s 488, the Court's principal concern is to be satisfied that all appropriate steps have been taken to identify creditors and that surplus in fact exists.
[3]
The evidence establishes that a notice of the application in accordance with the requirements of (NSW) Supreme Court (Corporations) Rules 1999, reg 7.9, has been published, more than 14 days before the hearing date. The liquidator proposes to withhold a sum of $137,000 approximately on account of estimated further remuneration and disbursements until finalisation of the liquidation, including an application for their release and some provision for contingencies. A final report to creditors has been issued. Creditors have been paid in full, and statutory interest has been paid to all creditors. The Deputy Commissioner of Taxation has provided a tax clearance certificate. I am satisfied that there is a surplus, at least to the extent proposed to be distributed, and that the requisite formal steps have been taken.
[4]
The Court orders that:
1. (1)
  The liquidators have special leave pursuant to Corporations Act, s 488(2), to make an interim distribution of surplus funds in the name of Dave Lahood Pty Limited in the sum of $738,668 to Paul Andrew Leroy as trustee of the bankrupt estate of David Lahood.
2. (2)
  Pursuant to (Cth) Corporations Regulations 2001, reg 5.6.71, this order need not have annexed to it a schedule in accordance with form 551.
3. (3)
  Leave be reserved to the applicants to apply for special leave to make a further and final distribution.
4. (4)
  Upon receipt of a form of transfer of the shares in the defendant executed by the plaintiff as transferor and David Lahood as transferee, the applicant register that transfer.
5. (5)
  The costs of this application be paid from the assets of the company.
[5]
The Court notes that as between the applicants and the plaintiff it has been agreed that the distribution will be made within seven days.