Insolvency and external administration

In an urgent ruling given the day after a liquidator applied under section 511 of the Corporations Act 2001 (Cth), the Supreme Court of Victoria made no order authorising a company's officers to run its litigation: Hansen J was of the view that he lacked sufficient information on the overall interest of the company, its creditors and members; nor had he a proposal protecting the company on costs orders a settlement would release, or any assurance beyond Mr Spalla's on ongoing costs.

Supreme Court of Victoria, 6 May 2005

In an urgent ruling given the day after a liquidator applied under section 511 of the Corporations Act 2001 (Cth), the Supreme Court of Victoria made no order authorising a company's officers to run its litigation: Hansen J was of the view that he lacked sufficient information on the overall interest of the company, its creditors and members; nor had he a proposal protecting the company on costs orders a settlement would release, or any assurance beyond Mr Spalla's on ongoing costs.

Supreme Court of Victoria, 6 May 2005

In the Supreme Court of Victoria, on a liquidator's interlocutory application, Whelan J directed him under section 479(3) of the Corporations Act 2001 (Cth) that he may properly sell items listed in an exhibit to his affidavit as part of the sale of SpectruCell technology and its related hardware and software, retaining the proceeds until further order, and under section 530C authorised disposal of such seized property and books as fell within that direction, without finally determining ownership.

Supreme Court of Victoria, 21 November 2005

In the Supreme Court of Victoria, on a liquidator's interlocutory application, Whelan J directed him under section 479(3) of the Corporations Act 2001 (Cth) that he may properly sell items listed in an exhibit to his affidavit as part of the sale of SpectruCell technology and its related hardware and software, retaining the proceeds until further order, and under section 530C authorised disposal of such seized property and books as fell within that direction, without finally determining ownership.

Supreme Court of Victoria, 21 November 2005

On an appeal from a Master's order setting aside KPMG's statutory demand under the Corporations Act 2001 (Cth), the Supreme Court of Victoria (Robson J) held that the supporting affidavit complied with section 459G and that there was a genuine dispute and/or an offsetting claim under section 459H, and dismissed the appeal.

Supreme Court of Victoria, 19 September 2007

In a ruling on an appeal from a Master's refusal to set aside a statutory demand under the Corporations Act 2001 (Cth), the Supreme Court of Victoria (Whelan J) dismissed the appeal on a preliminary point, before any hearing of its merits, together with an interlocutory process for an extension nunc pro tunc of the time for compliance, which had expired before the appeal came on for hearing.

Supreme Court of Victoria, 28 July 2006

In a ruling on an appeal from a Master's refusal to set aside a statutory demand under the Corporations Act 2001 (Cth), the Supreme Court of Victoria (Whelan J) dismissed the appeal on a preliminary point, before any hearing of its merits, together with an interlocutory process for an extension nunc pro tunc of the time for compliance, which had expired before the appeal came on for hearing.

Supreme Court of Victoria, 28 July 2006

At trial in the Supreme Court of Victoria, Mandie J dismissed claims under the Corporations Act 2001 (Cth) that two land sales were uncommercial transactions, holding that for the purposes of section 588FB each sale formed part of one transaction with a third interdependent sale at an overall price above value.

Supreme Court of Victoria, 3 February 2006

On the deed administrators' application, the Supreme Court of Victoria terminated two companies' deed of company arrangement on conditions under section 447A of the Corporations Act 2001 (Cth) and wound them up.

Supreme Court of Victoria, 14 April 2008

In the Supreme Court of Victoria, Byrne J dismissed a subcontractor's appeal and refused it leave to proceed against a head contractor bound by a deed of company arrangement, where the subcontractor sought judgment on an adjudicated amount under the Victorian security of payment legislation only to recover that amount from the principal [7], [17], [18], [19].

Supreme Court of Victoria, 18 February 2005

In a claim by liquidators and the company under the Corporations Act 2001 (Cth) against the Commissioner of Taxation to recover alleged preferential payments, Robson J ruled mid-hearing that he would not enter judgment on the Commissioner's consent while one third party, a former director, kept a defence under rule 11.09(2) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) denying the company's alleged insolvency, but would if that director withdrew it, and held that the two who had delivered and then withdrawn the defence were taken to admit the allegations of paragraph 6 of the statement of claim that it had denied.

Supreme Court of Victoria, 11 March 2008

On a former administrator's application under the Corporations Act 2001 (Cth), the Supreme Court of Victoria fixed his remuneration, less disallowed items and a ten per cent reduction, allowed his legal fees to 30 June 2008 and sent later fees to taxation, over objections.

Supreme Court of Victoria, 18 December 2008

In the Practice Court of the Supreme Court of Victoria, Maxwell P dismissed a creditor's appeal from a Master, setting aside a notice to produce that listed documents not referred to in the affidavits it specified, was fishing and was too wide and oppressive, and dismissing as an abuse of process a winding up application for insolvency that was bound to fail [27], [34], [44], [46].

Supreme Court of Victoria, 20 June 2007

On an inquiry sought by ASIC into an official liquidator's conduct, Dodds-Streeton J of the Supreme Court of Victoria held that he should be removed from his offices and prohibited for ten years from acting as a liquidator, administrator or receiver and that remuneration drawn without valid approval should be paid into Court for a Master to determine his entitlement [639], [623], [628].

Supreme Court of Victoria, 25 May 2007

In the Supreme Court of Victoria, Dodds-Streeton J dismissed an appeal from a Master's order winding up a company in insolvency, holding that a company which has not applied to set aside a statutory demand needs leave to oppose the winding up on the ground that the specified debt is not due and payable, and cannot avoid that requirement by contending that the demand is a nullity [113], [115], [173].

Supreme Court of Victoria, 15 September 2006

In the Supreme Court of Victoria, Gillard J allowed an appeal from a Master on an application to reinstate a deregistered company under section 601(AH)(2) of the Corporations Act 2001, holding that the first and third plaintiffs were aggrieved persons and that it would be just that the company's registration be reinstated [2], [111].

Supreme Court of Victoria, 11 August 2006

In the Commercial and Equity Division of the Supreme Court of Victoria, Hollingworth J held that, where a factory was bought in a company officer's name with the company paying most of the purchase moneys, an unrebutted presumption of resulting trust arose for both in the shares they contributed, and proposed a declaration over the net sale proceeds accordingly, although neither side had argued for that result [3], [11], [91], [92], [93].

Supreme Court of Victoria, 15 June 2005

In a civil penalty proceeding brought by ASIC in the Supreme Court of Victoria, Mandie J held that the managing director and a non-executive director of two insolvent companies each contravened section 588G of the Corporations Law on each occasion a debt was incurred, and that neither established a defence under section 588H [569]. The law applied was the Corporations Law (Vic) in force from 14 September 1999 to 17 February 2000 [316]. Under the transitional provisions, Parts 5.7B and 9.4B as operative before 13 March 2000 governed the proceeding [336]. The judgment determined contravention, leaving for further hearing whether to relieve the directors wholly or partly from liability under section 1317JA(2) [570]. Whether to order compensation under section 588J(1) was also left open [571]. Also left for further hearing were declarations, disqualification and penalties, costs and the position of Harrison [572], [573], [574].

Supreme Court of Victoria, 5 May 2003

In the Equity Division of the Supreme Court of New South Wales, Austin J dismissed a receiver's originating process against liquidators, holding that his powers of possession under the Corporations Act and the deed of charge were restricted to books the companies in receivership owned, or possibly had a proprietary interest in, that were charged property [53], [54], [56], [57], [87]. His Honour also held that books those companies merely possessed were not books "of" the corporation open to the receiver's inspection under section 431 [76], [77].

Supreme Court of New South Wales, 14 September 2001