Oct 2018

ERA Legal helps a favoured return (part 2)

Following on from our recent case study of In the matter of Hawden Property Group Pty Ltd (in liq) (ACN 003 528 345) [2018] NSWSC 481 which concerned an application seeking leave of the Court to distribute a surplus in the winding up of Hawden Property Group Pty Ltd (in liquidation) (Company), ERA Legal recently acted for the liquidator of the Company seeking his subsequent release as liquidator and deregistration of the Company under section 480(d) of the Corporations Act 2001 (Cth) (Act).

The liquidator dealt with the majority of the matters set out in rule 7.5 of the Supreme Court (Corporations) Rules 1999 (NSW) (Rules) in support of his application under section 480(d) of the Act save for the requirements under rules 7.5(2)(a)-(b) and 7.5(6), which require:

  1. the application to include 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 from and period and also set out the terms of section 481(3) of the Act; and
  2. service of a copy of the liquidator’s receipts and payments in the winding up of the Company and the statement of financial position of the Company at the date the application was filed on each creditor who proved a debt in the winding up and on each contributory.

The Court exercised its power under section 14 of the Civil Procedure Act 2005 (NSW) to dispense with these rules in circumstances where:

  1. the contributories of the Company had notice of the application and either consented or considered it a matter properly left for determination of the Court;
  2. all of the claims of the creditors of the Company had been discharged in full;
  3. the proposed orders sought by the liquidator included a statement setting out the terms of section 481(3) of the Act;
  4. any order under section 480(d) of the Act may be revoked on proof that it was obtained by fraud or by suppression or concealment of any material;
  5. there was no objection to the application by the Australian Securities and Investments Commission.

Take away point

The decision serves as a timely reminder of the matters a liquidator must address when making an application under section 480(d) of the Act and importantly, that strict compliance with the rule 7.5 of the Rules is not required in certain circumstances and the Court may dispense with those requirements.

Please contact us for more information.