In the matter of Ambridge Investments Pty Limited & Ors

These are applications pursuant to s 473(7) of the Corporations Act 2001 (Cth) filed on 20 October 2015 in the matters of Ambridge Investments Pty Ltd (in liquidation) and various other companies included in the Schedule attached to the Originating Process, to fill the vacancy to be created by the resignation of the liquidator of the companies, Atle Crowe-Maxwell, who has resigned from the partnership, BDO East Coast Partnership (BDO). The liquidator has executed memoranda of resignations as liquidator of the companies that are yet to become effective by filing them with the Court and lodging them with ASIC: Free & Ors [2010] NSWSC 1079. The orders sought are that James Michael White, a partner of BDO, fill the vacancy to be created by the liquidator’s resignations.

The matter was referred to me by the Registrar in Equity this morning and Mr P Cutler, of counsel, appears for the plaintiffs. The affidavits in support of the applications are those of the liquidator, sworn on 13 October 2015, and Mr White, sworn on 20 October 2015.

The liquidator is in the process of resigning all of his current appointments as liquidator in both Court appointed liquidations and voluntary liquidations. Although the liquidator also holds joint appointments in other liquidations, the present applications relate to his sole appointments.

Mr White sets out the background to each of the liquidator’s appointments. All of the appointments (except an appointment made by the Federal Court in respect of the company, Gleeson Express Services Pty Ltd, and an appointment made by the Supreme Court of Victoria to TPS Group Pty Limited) were made by this Court.

Section 473(7) of the Corporations Act provides:

The Supreme Court (Corporations) Rules 1999 provide relevantly:

In support of the applications Mr Cutler relied upon Condon v Watson [2009] FCA 11; (2009) 174 FCR 314, a case in which applications were made under s 473(7) of the Corporations Act where the liquidator had been appointed to various companies by orders of the Federal Court of Australia and also to one company, Coastace Pty Ltd, by this Court and to another, Goodbat Pty Ltd, by the Family Court of Australia. Lindgren J said (at [45]):

Mr Cutler also relied upon two other decisions, Sihota v Pacific Sands Motel Pty Limited (In Liq) & Anor [2003] NSWSC 119; (2003) 56 NSWLR 721 and Maamari v Ringwood & Ply Pty Limited [2005] NSWSC 40; (2005) 52 ACSR 370.

In Sihota v Pacific Sands Motel Pty Limited (In Liq) & Anor Austin J was dealing with an application for leave to proceed pursuant to s 471B of the Corporations Act in which the order made for the winding up of the relevant company had been made by the Queensland Supreme Court. His Honour then embarked on an historical analysis of the legislation and authorities and said:

In Maamari v Ringwood & Ply Pty Limited [2005] NSWSC 40; (2005) 52 ACSR 370 Barrett J was dealing with an application to terminate a winding up that had been ordered by the Supreme Court of Queensland. His Honour, after referring to the source of power for the Court, said this:

Section 58AA of the Corporations Act provides:

Section 471B of the Corporations Act provides:

On one reading of s 471B of the Act, it might have been thought that the use of the expression “the Court” where it secondly appears meant the same Court that had made the orders for winding up of the company. A similar reading might be applied to s 473(7) of the Act. This is particularly so where the expression used in both sections is “the Court” rather than “a Court”. However I agree with the approach adopted in the abovementioned authorities and conclude that the expression “Court” where it secondly appears in s 473(7) may be read as any of the Courts defined in s 58AA of the Act.

In the present case this Court is not being asked to countermand the order of the Federal Court or the order of the Victorian Supreme Court. Rather this Court is asked to make a consequential order in respect of the winding up of those companies by reason of a step taken by the liquidator. The resignations take effect when the liquidator files his memoranda of resignation with the Registrar of the Court pursuant to the Corporations Rules and lodges them with ASIC. It is these steps that create the vacancies. The vacancy must be filled by the Court.

I am satisfied having regard to the approach adopted in the authorities referred to above that this Court does have the power to make the orders sought by the plaintiffs in these proceedings. I am also satisfied that there is a clear benefit in appointing Mr White to ensure continuity within the one firm in respect of each of the liquidators: Condon v Watson at 317; Free & Ors at [6].

The orders sought for Mr White to fill the vacancies that will be created by the liquidator’s resignations will be made.