David grant co pty ltd v westpac banking corp 1995

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David Grant & Co Pty Ltd v Westpac Banking Corp (1995) 184 CLR 265: Westpac served a statutory demand on David Grant & Co (DGC) that DGC applied to the court to have set aside. The app by DGC was outside the 21-day time limit imposed under s459G. DGC sought to extend the time limit for opposing the statutory demand under s1322(4). Issue: Could the demand be set aside outside the 21-day period? Decision: The time applying to set aside a statutory demand could not be extended by s1322 as s459G provided that demands could only be opposed within the 21-day time period. An extension of time could be sought under s 459R; however, that section still required the application for an extension to be made within 21 days of the service of the demand. Process of winding up 1. Liq takes control of coy and analyses its financial position: assets and liabilities 2. Liq must keep creditors and members informed of progress; liq also under supervisory power of court 3. Liq may engage in litigation on behalf of company 4. Liqu attempts to satisfy liabilities of company; if assets insufficient after satisfying secured creditors, pro rata distribution among unsecured creditors 5. If all creditors satisfied, distribution of balance to members in accordance with statute and constitution 6. No set time limit 7. Final result deregistration of company D. Voluntary winding up: Does not require a court order to appoint the liquidator. Pt 5.5 of the Act, provides for both members’ and creditors’ voluntary winding up. s491: Circumstances in which company may be wound up voluntarily s496: Duty of Liquidator where company turns out to be insolvent - where the company is not solvent the liquidator in a members’ voluntary winding up may convene a meeting of creditors; if creditors appoint a new liquidator the winding up proceeds as a creditors’ voluntary winding up E. Voluntary administration Commencement S435A: Object of Part - Purpose: to maximise the chance that an insolvent company or its business continues to exist and, if not, to maximise its return to creditors and members Commencement may be: 1. By company: administrator appointed in writing in accordance with board resolution: s436A(1); but not if liquidator already appointed: s436A(2); or 2. By Liquidator: s436B(1); but he or she may not normally be appointed administrator: s436B(2); or 3. By holder of an enforceable charge: s436C(1); but not if liquidator already appointed: s436C(2) 4. An appointment the administrator must notify ASIC, the company and substantial charge-holders; also must advertise: s450A Administrator S448B – Administrator must be registered liquidator
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Administrator is an ‘officer’, relevant duties under Corps Act apply, has control of the coy’s business (S437A), acts as agent of the coy (s437B), must report offences and breaches by officers to ASIC (S438D) S436E – Purpose and timing of first meeting of creditors (Administrator must promptly convene a first meeting of creditors) S439A – Administrator to convene meeting and inform creditors (Final meeting of creditors must be held
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