Hayes (Liquidator) v 5G Developments Pty Ltd, in the matter of 5G Developments Pty Ltd

• Jurisdiction: Australia Federal only
• Judge: STEWART J
• Judgment Date: 20 September 2019
• Neutral Citation: [2019] FCA 1541
• Date: 20 September 2019
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Hayes (Liquidator) v 5G Developments Pty Ltd, in the matter of 5G Developments Pty Ltd [2019] FCA 1541

File number:	NSD 1287 of 2019
Judge:	STEWART J
Date of judgment:	20 September 2019
Date of publication of reasons:	3 October 2019
Catchwords:	CORPORATIONS – application for reinstatement of deregistered company under s 601AH(2) of theCorporationsAct 2001 (Cth) – whether the plaintiff is a ‘person aggrieved’ by the deregistration of the company – whether it is just to reinstate the company – where no prejudice likely to result from reinstatement – whether the company can be wound up immediately upon reregistration – application granted CORPORATIONS – application to wind up company under s 459A or on the just and equitable ground under s 461(1)(k) of the Corporations Act – whether the plaintiff is a creditor – whether bona fide dispute as to the debt – where likely that company is insolvent – where evidence demonstrates concerns regarding management of the company – application granted CORPORATIONS – application for the appointment of a special purpose liquidator – conflict of interest – application granted EVIDENCE – objection to evidence – where the respondent objected to tender of transcripts of examinations conducted under s 596A of the Corporations Act – whether transcripts were inadmissible hearsay under the Evidence Act 1995 (Cth) – whether transcripts constitute an admission under s 81 of the Evidence Act – where company said to have made admissions through director was deregistered at the time of examination – evidence ruled inadmissible
Legislation:	Corporations Act 2001 (Cth) ss 95A(2), 95(1), 459A, 459P, 461(1)(k), 462(2)(b), 596A, 597(14), 601AH, 1305, Sch 2 Insolvency Practice Schedule (Corporations), ss 5-15(c), 5-20(c), 5-30(a), 90-15(1), 90-20 Evidence Act 1995 (Cth) ss 59, 81, 87, 136
Cases cited:	AMP General Insurance Limited v Victorian WorkCover Authority[2006] VSCA 236; 15 VR 176 ASIC v ABC Fund Managers [2001] VSC 383; 39 ACSR 443 Australian Securities and Investments Commission v Rich[2009] NSWSC 1229; 75 ACSR 1 Australian Securities and Investments Commission v Westpoint Corporation Pty Ltd[2006] FCA 135; 227 ALR 623 Australian Securities Commission v AS Nominees Ltd[1995] FCA 1663; 62 FCR 502 Boys, in the matter of 38 Akuna Pty Ltd (Deregistered) v ASIC [2019] FCA 320 Deputy Commissioner of Taxation v Australian Securities & Investment Commission; re Civic Finance Pty Ltd (deregistered)[2010] FCA 1411; 81 ATR 456 Deputy Commissioner of Taxation; in the matter of James HardieAustralia Finance Pty Ltd (deregistered)[2008] FCA 1181; 170 FCR 545 GDK Products Pty Ltd, in the matter of Umberto Pty Ltd (in liq) v Umberto Pty Ltd (in liq) [2018] FCA 541 Harmon v Hartford[2019] NSWSC 413; 136 ACSR 94 In the matter of ERB International Pty Ltd (deregistered)[2014] NSWSC 200; 98 ACSR 124 In the matter of Likehart Pty Ltd (deregistered) [2017] NSWSC 884 In the matter of 77738930144 Pty Ltd (in liq) (formerly Commercial Indemnity Pty Ltd)[2017] NSWSC 452 Loch v John Blackwood Ltd[1924] AC 783 Mann v Goldstein[1968] 1 WLR 1091; [1968] 2 All ER 769 Partners v Sampson [2002]NSWSC 383 Re Brockweir Pty Ltd [2012] VSC 225 ReNewfront Pty Ltd (deregistered) [2008] SASC 127 Roy Morgan Research Centre Pty Ltd v Wilson Market Research Pty Ltd (1996) 39 NSWLR 311 Treadtel International Pty Ltd v Cocco[2016] NSWCA 360; 117 ACSR 176 Willow Court Retirement Village Pty Ltd v ASIC[2007] NSWSC 76 Yeo v Australian Securities & Investments Commission, in the matter of Jo Woo International Education Centre Pty Ltd (deregistered) [2017] FCA 1480
Date of hearing:	16-17, 20 September 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Corporations and Corporate Insolvency
Category:	Catchwords
Number of paragraphs:	154
Counsel for the Plaintiffs:	C Harris SC (16-17 September 2019) J Nolan (Solicitor) (20 September 2019)
Solicitor for the Plaintiffs:	Colin Biggers & Paisley
Counsel for the First Defendant:	The first defendant did not appear
Counsel for the Second Defendant:	S Aspinall & N Olson
Solicitor for the Second Defendant:	Mistry Fallahi
Counsel for the Third Defendant:	The third defendant did not appear

ORDERS

		NSD 1287 of 2019
IN THE MATTER OF 5G DEVELOPMENTS PTY LTD
BETWEEN:	ALAN JOHN HAYES AS OFFICIAL LIQUIDATOR OF DENHAM CONSTRUCTIONS PTY LTD (IN LIQUIDATION) ACN 086 503 568 First Plaintiff ; DENHAM CONSTRUCTIONS PTY LTD (IN LIQUIDATION) ACN 068 503 568 Second Plaintiff
AND:	5G DEVELOPMENTS PTY LTD (FORMERLY KNOWN AS DENHAM WYNDHAM PTY LTD) ACN 114 458 061 First Defendant ; 5G CAPITAL INVESTMENTS PTY LTD ACN 002 738 785 Second Defendant ; AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION Third Defendant

JUDGE:	STEWART J
DATE OF ORDER:	20 SEPTEMBER 2019

THE COURT ORDERS THAT:

1. Pursuant to s 601AH(2) of the Corporations Act 2001 (Cth) (Act) the Australian Securities and Investments Commission (ASIC) forthwith reinstate the registration of 5G Developments Pty Ltd (ACN 114 458 061).

2. Upon reinstatement of the registration of 5G Developments, pursuant to s 461(1)(k) of the Act 5G Developments be wound up.

3. Upon the reinstatement of the registration of 5G Developments, Mr Alan John Hayes of Hayes Advisory Pty Ltd is appointed as liquidator of 5G Developments.

FURTHER:

Upon the undertaking of Mr Alan John Hayes by his solicitor that:

1. he indemnifies the special purpose liquidator referred to in Order 4 below in respect of reasonable costs and fees incurred by him in carrying out the tasks referred to in Order 4 below, and

2. he will resign his appointment as liquidator of 5G Developments if the special purpose liquidator concludes that the debt of 5G Developments to Denham Constructions Pty Ltd (in liquidation) (ACN 086 503 568) should not be admitted to proof,

THE COURT ORDERS THAT:

4. Pursuant to s 90-15 of the Insolvency Practice Schedule to the Act, Glenn Livingstone of KPMG is appointed as special purpose liquidator of 5G Developments for the following limited purposes:

   1. to receive service on behalf of 5G Developments of a proof of debt by Denham Constructions Pty Ltd (in liquidation) (ACN 086 503 568) claimed by that company as being owed to it; and

   2. to assess, take any and all steps necessary to determine, and to determine whether 5G Developments ought to admit the proof of debt or to reject it.

5. The...