Cathro (liquidator), in the matter of Petsamo No 14 Pty Ltd (in liq) v Thomassian

• Jurisdiction: Australia Federal only
• Judgment Date: 28 March 2022
• Neutral Citation: [2022] FCA 399
• Date: 28 March 2022
• Court: Federal Court

Federal Court of Australia

Cathro (liquidator), in the matter of Petsamo No 14 Pty Ltd (in liq) v Thomassian [2022] FCA 399

File number:	NSD 1133 of 2020
Judgment of:	MARKOVIC J
Date of judgment:	28 March 2022
Date of publication of reasons:	14 April 2022
Catchwords:	INSOLVENCY – application seeking an order validating a liquidator’s appointment nunc pro tunc – where resolution by members to voluntarily wind up company was signed by a member pursuant to a power of attorney – where this did not accord with the company’s constitution nor the requirements of the Corporations Act 2001 (Cth) – where just and equitable to validate appointment of liquidator – application granted ; PRACTICE AND PROCEDRE – application to proceed in absence of a party – where second defendant passed away prior to final hearing – where second defendant was on notice of the proceeding prior to his death – where second defendant took no steps to comply with the Court’s orders or to agitate allegations made by him prior to his death – where plaintiffs entitled to proceed to have their claim determined – application granted
Legislation:	Corporations Act 2001 (Cth) ss 250A, 250B, 1274B, 1322 Insolvency Practice Schedule (Corporations) (Sch 2 to the Corporations Act 2001 (Cth)) ss 60-11, 60-12, 70-35, 90-15 Powers of Attorney Act 2003 (NSW) Corporations Regulations 2001 (Cth) Federal Court (Corporations) Rules 2000 (Cth) rr 7.5(3), 7.9 Federal Court Rules 2011 (Cth) r 30.21
Cases cited:	Car Buyers Australia Pty Limited v ASIC [2020] FCA 599 Cooper as Administrator of Goldbiz Paperbiz Pty Limited (Administrator Appointed) ACN 097 355 872, in the matter of Goldbiz Paperbiz Pty Limited (Administrator Appointed) ACN 097 355 872 [2005] FCA 1887 Cordiant Communications (Australia) Pty Ltd v the Communications Group Holdings Pty Ltd [2005] NSWSC 1005; 194 FLR 322 Harben v Phillips (1883) 23 Ch D 14 In the matter of JPD Media & Design Pty Limited (subject to deed of company arrangement) [2020] NSWSC 1311 In the matter of Willmott Forests Limited (Receivers and Managers Appointed) (in liquidation) (2012) 88 ACSR 18; [2012] VSC 125 Joiner (Liquidator), in the matter of CuDeco Limited (Receivers and Managers Appointed) (in liq) [2020] 14 ALR 239; FCA 1661 New South Wales Henry George Foundation Ltd v Booth (2002) 54 NSWLR 433 Re Hawden Property Group Pty Ltd (in liq) [2018] NSWSC 481 Re Sakr Nominees Pty Ltd [2017] NSWSC 66 Sallway, in the matter of Mossgreen Pty Ltd (in liq) (Remuneration of Liquidators) (2019) 140 ACSR 331; [2019] FCA 17718
Division:	General Division
Registry:	New South Wales
National Practice Area:	Commercial & Corporations
Sub-area:	Corporations and Corporate Insolvency
Number of paragraphs:	107
Date of hearing:	28 March 2022
Counsel for the Plaintiffs:	Mr M Condon SC Mr L Cavell
Solicitor for the Plaintiffs:	Holman Webb Lawyers
Counsel for the First Defendant:	Mr M Henry SC
Solicitor for the First Defendant:	Australian Business Lawyers & Advisors

ORDERS

		NSD 1133 of 2020
BETWEEN:	MR SIMON JOHN CATHRO IN HIS CAPACITY AS LIQUIDATOR OF PETSAMO NO 14 PTY LTD ACN 001 778 043 (IN LIQUIDATION) First Plaintiff ; PETSAMO NO 14 PTY LTD ACN 001 778 943 (IN LIQUIDATION) Second Plaintiff
AND:	MR ALFRED THOMASSIAN First Defendant ; MR GEORGE THOMASSIAN Second Defendant

order made by:	MARKOVIC J
DATE OF ORDER:	28 March 2022

THE COURT ORDERS THAT:

1. Pursuant to r 30.21(1)(b) of the Federal Court Rules 2011 (Cth) the hearing of this proceeding, having been called three times, will proceed in the absence of the second defendant, George Thomassian.

2. Pursuant to s 1322 of the Corporations Act 2001 (Cth) validating the first plaintiff’s appointment as liquidator of the second plaintiff, nunc pro tunc.

3. Pursuant to s 90-15 of the Insolvency Practice Schedule (Corporations), being Schedule 2 to the Act (IPS), that the first plaintiff be entitled, pursuant to s 1274B of the Act, to rely upon the accuracy of the company extract for the second plaintiff prepared by the Australian Securities and Investments Commission (ASIC) as prima facie evidence of the facts recorded therein, including:

   1. the first defendant and second defendant respectively own one-third and two-thirds of the issued share capital of the second plaintiff; and

   2. the second defendant ceased to be a director of the second plaintiff on 26 August 2019.

4. Pursuant to s 90-15 of the IPS the declaration of solvency lodged by the second plaintiff with ASIC on 27 August 2019 is not invalid by reason of any contravention of Arts 1.5, 2.1 and 2.6 of the second plaintiff’s Constitution or by reason of any contravention of s 494 of the Act.

5. Pursuant to s 1322(4) of the Act the removal of the second defendant, George Thomassian, as a director of the second plaintiff on 26 August 2019 was not invalid by reason of any contravention of Art 2.5 of the second plaintiff’s Constitution.

6. Pursuant to s 90-15 of the IPS the distribution of a surplus of $3,423,419.69 to the first defendant, Alfred Thomassian, on 8 October 2019 was not invalid.

7. Pursuant to s 90-15 of the IPS, the first plaintiff is justified in not undertaking any further investigations into the affairs of the second plaintiff.

8. Pursuant to s 90-15 of the IPS the first plaintiff has leave to distribute the balance of the second plaintiff’s assets in the following manner:

   1. first, in payment of the plaintiffs’ costs and disbursements of this application and this proceeding;

   2. second, in payment of the first plaintiff’s expenses of the liquidation (including the costs of this litigation);

   3. third, in payment of the first plaintiff’s remuneration; and

   4. fourth, as to the balance, to the legal personal representative of the late George Thomassian.

9. Pursuant to s 60-11(c), or in the alternative s 90-15, of the IPS the fee resolution made on 28 August 2019 be reviewed and set aside and substituted with another resolution in the form set out in annexure ‘A’ to these Orders.

10. Pursuant to cl 5.6.71(1) of the Corporations Regulation 2001 (Cth) that these Orders need not have annexed to them a schedule in accordance with Form 551.

11. The requirements of r 7.9(2) and (3) of Federal Court (Corporations) Rules 2000 (Cth), that the first plaintiff publish a notice in accordance with Form 15, be dispensed with.

12. Pursuant to s 90-15 of the IPS the first plaintiff be released as liquidator of the second plaintiff, he be discharged from all liability in respect of any act done or default by him in relation to the liquidation of the second plaintiff, including in giving effect to these Orders, and that ASIC deregister the second plaintiff.

13. Leave be granted to the first plaintiff to destroy the books of the second plaintiff pursuant to s 70-35 of the IPS one month after deregistration of the second plaintiff.

14. The costs of the first plaintiff of this proceeding be...