Supreme Court New South Wales

• Medium Neutral Citation: Workers Compensation Nominal Insurer v Perfume Empire Pty Ltd [2011] NSWSC 380
• Hearing dates: 5 May 2011
• Decision date: 05 May 2011
• Jurisdiction: Equity Division - Corporations List
• Before: Barrett J

Decision

1. Order that Giles Geoffrey Woodgate have leave under s 532(2) of the Corporations Act 2001 to consent to be appointed, and to act as, liquidator of Perfume Empire Pty Ltd (ACN 108 883 325).

2. Order that the said Perfume Empire Pty Ltd be wound up in insolvency.

3. Order that Giles Geoffrey Woodgate, an official liquidator, be appointed liquidator of the said Perfume Empire Pty Ltd.

4. Order that the defendant pay the plaintiff's costs of the proceedings.

5. Order that the defendant pay the Deputy Commissioner's costs also.

• Catchwords: CORPORATIONS - winding up - application for winding up in insolvency - whether application should be adjourned because company under administration - held no - ground for winding up established - choice of liquidator - whether there should be departure from usual approach of appointing plaintiff's nominee - where administrator has done substantial work - administrator appointed
• Legislation Cited: Corporations Act 2001 (Cth), ss 9, 440A(2), 532(2)(c)(i)
• Cases Cited: Deputy Commissioner of Taxation v Barroleg Pty Ltd (1997) 25 ACSR 167; Glenwood Village Pty Ltd v Glen Alpine Constructions Pty Ltd [2009] NSWSC 516; Unifor Office Systems Aust Pty Ltd v Brewer Partnership Pty Ltd [1999] NSWSC 137; (1999) 17 ACLC 642
• Category: Principal judgment
• Parties: Workers Compensation Nominal Insurer - Plaintiff
• Representation: Counsel: Mr A W Smith - Plaintiff; Mr P M Stern - Defendant; Mr D M Jay - Deputy Commissioner of Taxation; Solicitors: P H Legal - Plaintiff; Addisons - Defendant; ATO Legal Services Branch - Deputy Commissioner of Taxation
• File Number(s): 2011/39721

Judgment

1 I am now dealing with the plaintiff's winding up application following dismissal of the plaintiff's application for an order terminating the voluntary administration now in place in relation to the defendant.

2 Because of the voluntary administration, s 440A(2) of the Corporations Act applies. That section requires that the winding up application be adjourned if the court is of the opinion that it is in the interests of the company's creditors for the company to continue under administration rather than be wound up.

3 None of the parties now before me - the plaintiff, the defendant company (represented by its administrator, Mr Woodgate) and the Deputy Commissioner of Taxation (a supporting creditor) - contends that it is in the interests of creditors that the administration continue. The administrator has concluded that the defendant is insolvent and has been in that state since 31 August 2010 and perhaps earlier. There is no remaining business. No deed of company arrangement has been proposed. Winding up is, in the administrator's view, the inevitable fate of the company.

4 In these circumstances, there is no basis for concluding that continuation of the administration will serve creditors' interests. Section 440A(2) therefore does not require adjournment of the hearing of the winding up application.

5 The plaintiff has presented its evidence in support of winding up. A statutory presumption of insolvency applies because of non-compliance with a statutory demand. No attempt has been made to displace the presumption. The insolvency ground is therefore made out.

6 The plaintiff has also proved the advertising and other matters necessary to establish the claim. There will be a winding up order.

7 There is then a question as to the choice of liquidator. The plaintiff has filed a consent of Ms Amirbeaggi to act as liquidator. The administrator, Mr Woodgate, has indicated a willingness to act and the defendant has filed an interlocutory process seeking his appointment instead of that of the plaintiff's nominee. He also seeks leave to act.

8 In an abstract sense, each potential appointee is suitable and there is no apparent reason at all why either of them should be rejected. In the normal course, it is the practice to appoint the plaintiff's nominee: see, for example, Glenwood Village Pty Ltd v Glen Alpine Constructions Pty Ltd [2009] NSWSC 516.

9 Here, however, Mr Woodgate, as administrator, has done substantial work already investigating the position of the defendant, as is evidenced by his report to creditors for the purposes of the administration. That is put forward as a reason for appointing him: see, for example, Deputy Commissioner of Taxation v Barroleg Pty Ltd (1997) 25 ACSR 167.

10 I am satisfied that there will be advantages, including by way of likely costs savings, in appointing Mr Woodgate. I note that his charging rates and those of Ms Amirbeaggi are comparable. Also, it is shown that he is already in touch with a number of creditors.

11 It was submitted that the fact that Mr Woodgate had been appointed administrator by the sole director militates against his now being appointed liquidator. Reference was made to Unifor Office Systems Aust Pty Ltd v Brewer Partnership Pty Ltd [1999] NSWSC 137; (1999) 17 ACLC 642. But it must be borne in mind against this that it is the norm, in cases where administration matures into creditors voluntary winding up, for the administrator to become the liquidator unless a positive decision to displace him or her is made by creditors.

12 In this particular case, I see no basis for any apprehension of inability on Mr Woodgate's part to act independently and dispassionately.

13 There is a technical obstacle to this appointment in that, under s 532(2)(c)(i) of the Corporations Act , a person may not, except with the court's leave, consent to be appointed, and must not act, as liquidator of the company if the person is an officer of the company (other than its liquidator); and, under paragraph (d) of the s 9 definition of "officer", an administrator is an officer.

14 For the reasons I have stated, there is a sufficient basis, in this particular case, for the grant of leave under this provision to allow Mr Woodgate to be the liquidator.

15 The orders are as follows:

1. Order that Giles Geoffrey Woodgate have leave under s 532(2) of the Corporations Act 2001 to consent to be appointed, and to act as, liquidator of Perfume Empire Pty Ltd (ACN 108 883 325).

2. Order that the said Perfume Empire Pty Ltd be wound up in insolvency.

3. Order that Giles Geoffrey Woodgate, an official liquidator, be appointed liquidator of the said Perfume Empire Pty Ltd.

[SUBMISSIONS ON COSTS]

16 I make the following additional orders

4. Order that the defendant pay the plaintiff's costs of the proceedings.

5. Order that the defendant pay the Deputy Commissioner's costs also.

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Decision last updated: 05 May 2011