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  • Unreported Judgment

Re Yalgold Pty Ltd (in liquidation)

 

[2017] QSC 290

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Re Yalgold Pty Ltd (in liquidation) [2017] QSC 290

PARTIES:

LACHLAN STUART MCINTOSH AS LIQUIDATOR OF YALGOLD PTY LTD (IN LIQUIDATION) ACN 010 914 673

(applicant)

FILE NO:

BS 7111 of 2000

DIVISION:

Trial

PROCEEDING:

Application

DELIVERED ON:

29 November 2017  (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

JUDGE:

29 November 2017

Atkinson J

ORDERS:

  1. Approval is granted, nunc pro tunc, for the applicant in his capacity as the liquidator of Yalgold Pty Ltd (in liquidation) ACN 010 914 673 (“Yalgold”) to enter into, and cause Yalgold to enter into, the Deed of Settlement dated 16 October 2017 appearing at page 3 of exhibit “JRP-1” to the Affidavit of John Richard Park sworn on 22 November 2017 (“the Deed”).
  2. The applicant is justified:
  1. in resolving, and procuring Yalgold to resolve, the dispute the subject of the proceedings referred to in the Deed on the terms of that Deed; and
  2. in performing, and procuring that Yalgold perform, the terms of the Deed.
  1. The confidential affidavits of John Richard Park and Lachlan Stuart McIntosh filed by leave on 29 November 2017 be placed in a sealed envelope and marked “Confidential – not to be made available to any person for inspection or copying without an order of the Court”.
  2. The applicant’s costs of the application be costs in the liquidation of Yalgold.

CATCHWORDS:

CORPORATIONS – WINDING UP – CONDUCT AND INCIDENTS OF WINDING UP – APPLICATION TO COURT FOR DIRECTIONS OR ADVICE – where the applicant liquidator sought an order pursuant to s 477(2B) of the Corporations Act 2001 (Cth) for the court’s approval of its entry into a deed of settlement to compromise two proceedings in the liquidation – where the liquidation was on foot for 17 years -  where the deed of settlement would ensure the creditors be paid in full, that the litigation be discontinued and the liquidation be finalised – whether the orders should be made

Corporations Act 2001 (Cth), s 477(2B)

Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66, cited

COUNSEL:

P McQuade QC for the applicant

J M Graham (self-represented) for a third party

J Peden for a third party 

SOLICITORS:

Tucker & Cowen Solicitors for the applicant

Russells for a third party 

  1. HER HONOUR:   The applicant liquidator seeks an order pursuant to section 477(2B) of the Corporations Act 2001 (Cth) for the Court’s approval of its entry into a deed of settlement on 16 October 2017 to compromise two proceedings which are currently before Justice Bond.  Section 477(2B) provides that:

 Except with the approval of the Court, of the committee of inspection or of a resolution               of the creditors, a liquidator of a company must not enter into an agreement on the               company’s behalf (for example, but without limitation, a lease or a an agreement under               which a security interest arises or is created) if:

  1. without limiting paragraph (b), the terms of the agreement may end; or
  2. obligations of a party to the agreement may, according to the terms of the agreement, be discharged by performance;

more than three months after the agreement is entered into, even if the term may end,               or the obligations may be discharged, within those three months.

  1. It appears from the evidence that the obligations under the agreement may not be discharged within three months and, accordingly, it is appropriate for the liquidator to seek the approval of the Court.  Further, given the history of litigation within this matter, and also of the liquidation, it is appropriate for the liquidator to seek what is essentially judicial advice similar to the type of advice that can be given to a trustee, which raises the same matters as were dealt with by the High Court in Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66 at 94, [72] to [74], which will provide some measure of protection to the liquidator for entering into this agreement to settle proceedings.
  2. Those proceedings are proceedings 6488 of 2014, referred to as “proof of debt proceedings”, and proceedings 3630 of 2016, referred to as “creditor proceedings”.  A direction is sought that the liquidator was justified in entering into, and procuring the company, Yalgold Pty Ltd (in liquidation), to enter into a compromise of the proceedings, and is justified in performing, and procuring Yalgold to perform, the terms of the deed of settlement. 
  3. The current provisions of the law which justify the making of the orders are found in schedule 2 to the Corporations Act, being Insolvency Practice Schedule (Corporations), in particular, paragraphs 90-15 and 90-20. 
  4. These proceedings that I have referred to, being the creditor proceedings and the proof of debt proceedings, are proceedings in a liquidation that has been on foot for some 17 years. In these proceedings, claims are made by Bylass Pty Ltd, as trustee of the CW Robson Family Trust No.2, and Mr Bill Robson against Yalgold for debts alleged to be owing at the date of liquidation, being 13 September 2000.  The liquidation and the companies involved have demonstrated a long and bitter dispute between two brothers, and dispute between them and the liquidators which has gone on, as I have said, for an extremely long time. 
  5. In the submissions of the liquidator, the basis of the claims are set out, and also the basis on which it has been agreed between the parties that the claims will be settled.  
  6. This will lead, amongst other things, to the creditors being able to be paid in full.  On my reading of the deed of settlement, it appears to me that the deed of settlement is a fair one, accords with the advice received by the liquidators, and will give the best possible outcome of the liquidation for all concerned. 
  7. Appearing today to support it was the other party to the litigation.  That is hardly surprising.  However, opposing it or at least seeking an adjournment, is the ex-wife of one of the brothers, Jan Graham, the ex-wife of Gary Robson.  She raised a number of complaints she has about the way in which the liquidation has been carried out, and about a Family Court judgment, to which she was a party back in 2004.  I have considered all of the arguments raised by her including her request for an adjournment but none of those matters convinces me that this matter should be further delayed.  It is time to bring this unhappy litigation to an end.  The deed of settlement permits the payment of existing known creditors in full, including provision to accommodate any minor unknown creditors, a surplus to be available to the contributories and the efficient finalisation of the liquidation of Yalgold, which has been on foot since 2000.
  8. If this settlement is not approved, there are significant risks in the litigation for the liquidator. The litigation is presently being funded personally by the liquidators, and it is an unfair and undue risk to them to continue with litigation when there is this fair deed of settlement agreed between the parties.  The deed of settlement will mean that the litigation is discontinued and the liquidation can be finalised.  I have had a careful look at the deed of settlement.  It seems to me to be fair and appropriate.  Accordingly, I intend to make the orders sought in the application: 
  1. Approval is granted, nunc pro tunc, for the applicant in his capacity as liquidator of  Yalgold Pty Ltd (in liquidation) to enter into and cause Yalgold to enter into, the Deed of Settlement, dated 16 October 2017, appearing at page 3 of exhibit “JRP-1” to the               affidavit of John Richard Park, sworn 22 November 2017,
  2. The applicant is justified:
    1. in resolving, and procuring Yalgold to resolve, the dispute the subject of the proceedings referred to in the Deed on the terms of that Deed; and
    2. in performing, and procuring that Yalgold perform, the terms of the deed. 
  3. The confidential affidavits of John Richard Park and Lachlan Stuart McIntosh, filed by leave on 29 November 2017 are to be placed in a sealed envelope and marked, “Confidential, not to be made available to any person for inspection or copying without an order of the Court”. 
  4. The applicant’s costs of the application will be the costs in the liquidation of Yalgold.
Close

Editorial Notes

  • Published Case Name:

    Re Yalgold Pty Ltd (in liquidation)

  • Shortened Case Name:

    Re Yalgold Pty Ltd (in liquidation)

  • MNC:

    [2017] QSC 290

  • Court:

    QSC

  • Judge(s):

    Atkinson J

  • Date:

    29 Nov 2017

Litigation History

Event Citation or File Date Notes
Primary Judgment [2017] QSC 290 29 Nov 2017 -

Appeal Status

No Status