Urgent applications by joint and several liquidators for leave to be appointed as voluntary administrators of company, for modifications to pt 5.3A of the Corporations Act 2001 (Cth), for a stay of the winding up, for their appointment as receivers over the assets of the trust, and ancillary orders
Turns on own facts Practice and procedure
Quick Take
1While the test for leave under s 436B(2)(g) of the Corporations Act 2001 (Cth) for a liquidator to appoint themselves as voluntary administrator is not onerous, leave will be refused where the circumstances reveal a threat to the independence of the proposed appointees — including where the liquidators' solicitors act for interested parties proposing the DOCA and in related proceedings, and where significant non-disclosures have been made on an ex parte application.
2On an urgent ex parte application supported by a certificate of urgency, the applicant bears a heavy duty of candour requiring full and frank disclosure of all material matters, including the existence of competing proceedings, the position of non-notified directors, and the role of the applicant's solicitors for interested parties in related litigation; failures of disclosure that are not mere oversights but reflect a deliberate assessment of irrelevance may themselves constitute a distinct reason for refusing the relief sought.
3Where corporate insolvency applications have the potential to prejudice a director's claims in pending Family Court proceedings concerning the marital asset pool, and the urgency of the application is not established by compelling evidence of serious financial harm, the court may adjourn the application to permit the Family Court to address competing claims first.
