Case: Advance Housing Pty Ltd (in liq) v Newcastle Classic Developments Pty Ltd (1994) 14 ACSR 230
Outcome: applied
The principle to be applied in applications such as this was succinctly stated by Santow J in Advance Housing Pty Ltd (in liq) v Newcastle Classic Developments Pty Ltd (1994) 14 ACSR 230 at 234. His Honour observed that the correct balance is struck by permitting a liquidator to act as such even if there be a prior involvement with the company in liquidation, provided that involvement is not likely to impede or inhibit the liquidator from acting impartially. His Honour said that, in short, the question should be whether there would be a reasonable apprehension by any creditor of lack of impartiality on the liquidator's part in the circumstances by reason of prior association with the company or those associated with it, including creditors or, indeed, any other circumstance. 10 I do not need to determine whether it is necessary to strike such a balance or how that balance ought to be struck in the present case. There is, I think, insufficient evidence before me to suggest that there may be any lack of impartiality on the liquidator's part, but the fact which, points toward the course that I have indicated is the failure of the previous liquidators to respond to the letter of 22 May 2008. There can be no suggestion of any want of impartiality, but the failure of the previous liquidators to respond to the letter or to appear before me this morning, I think, impels the adoption of the course proposed by Young J. 11 I have been provided with short minutes of order which provide for reinstatement and for the removal of the previous liquidators with a new liquidator, Mr Steven Wesley Hathaway, to be appointed as liquidator of the company. I have in evidence before me a letter from ASIC dated 13 June 2008. The letter states that ASIC will not oppose the application for reinstatement of the company, provided five stipulated conditions are satisfied. There is no difficulty with any of these conditions, but it is necessary to add to the draft orders that were submitted to me this morning by Mr Fernon an order that the plaintiffs pay ASIC's costs of $434, and I will so order. 12 I should add that condition 5 referred to in ASIC's letter requires that the liquidator notify ASIC upon conclusion of the winding up. I will therefore direct the liquidator to so notify ASIC. 13 I will make orders in terms of [1] to [7] of the short minutes of order handed to me this morning by counsel, which I will initial and date. As I have said, I also order that the plaintiffs pay ASIC's costs of $434, and direct that the liquidator be directed to notify ASIC upon conclusion of the winding up. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 3 July 2008 Counsel for the Applicant: J J E Fernon SC with D J A Mackay Solicitor for the Applicant: Breene &amp; Breene Solicitors Date of Hearing: 13 June 2008 Date of Judgment: 13 June 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/962.html