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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
MP NO.27 OF 2018
IN THE MATTER OF THE COMPANIES ACT 1997
AND:
IN THE MATTER OF SUNSET RENTALS LIMITED (In Liquidation)
Waigani: David, J
2020: 15th & 19th October
2021: 14th January
COMPANY LAW – liquidation - application to terminate a liquidation – second application – first application refused – no serious objection to competency of application - whether it is just and equitable to do so – Court’s power discretionary – alternative relief – liquidator’s power to disclaim onerous property – vestment of disclaimed property in applicant - Companies Act 1997, Sections 300(1) and (2), 319, 332 – application refused.
Cases Cited:
Wep Kilip & In the Matter of Kamsi Trading Limited (2005) SC784
Peter Makeng v Timbers (PNG) Limited (2008) N3317
Nathaniel Poya v Rex Paki (2008) N3535
In re Cakara Alam (PNG) Limited (2009) N4054
Louis Medaing v Ramu Nico Management (MCC) Ltd (2011) SC1144
Re Mosbi Glass and Aluminium Ltd (2012) N4925
Re Piunde Ltd (2015) N6656
Re Hela Opene Investment Ltd (in Liquidation) (2018) N7630
Sunset Rentals Limited v Pacific View Apartments Ltd (2020) SC1994
In re Sunset Rentals Ltd (In Liquidation) (2020) N8500
Counsel:
Alice Kimbu, for the Applicant
Soa Beeks Gor, for the Petitioning Creditor
RULING
14th January, 2021
EVIDENCE
2. Twelve affidavits were relied on in support of the application. They are:
3. In opposing the application, three affidavits were relied on and these are:
BACKGROUND
4. Sunset Rentals was incorporated on 15 December 1999. Its registration number is 1-36620. The applicant has been the sole director and shareholder of Sunset Rentals since 5 August 2019. Prior to that, Dr. Florian Gubon, the late husband of the applicant, was the sole shareholder and director of Sunset Rentals.
5. Sunset Rentals owns shares in Pacific View Apartments Limited (PVAL) through which the company owns or is the registered sub-lessee of two units namely, Unit 902 and Unit 904A situated in a residential building known as Pacific View Apartments erected on land described as Allotment 1 Section 84, Pruth Street, Matirogo, 2 Mile Hill, Port Moresby, NCD and being the whole of the land contained in State Lease Volume 27 Folio 6613. The applicant and her late husband also jointly own shares in PVAL through which they own or are sub-lessees of another unit namely Unit 804 at the Pacific View Apartments. Dr. Gubon died intestate on 24 April 2016. The applicant is the Administratrix of the estate of her late husband, Dr. Florian Gubon, she having been granted Letters of Administration by the Court on 12 February 2019. PVAL is the body corporate that manages the Pacific View Apartments. Unit holders of the Pacific View Apartments are required to pay monthly body corporate levies to PVAL for the upkeep and maintenance of the building and for services it renders to unit holders plus monthly electricity charges.
6. On 16 January 2017, PVAL, by WS No.7 of 2017, Pacific View Apartments Ltd v Sunset Rentals Limited and WS No.8 of 2017, Pacific View Apartments Ltd v Florian Gubon and Sainimili Varoi Gubon commenced proceedings against Sunset Rentals and the applicant and her late husband respectively alleging outstanding body corporate levies and electricity charges. On 14 February 2018, the Court entered default judgment against the applicant and her late husband in the sum of K31,752.83 (Judgment Debt in WS No.8 of 2017). On 19 February 2018, the Court entered default judgment against Sunset Rentals in the sum of K44,742.83 (Judgment Debt in WS No.7 of 2017).
7. The Judgment Debt in WS No.7 of 2017 was not settled in full or a compromise reached under Part XV of the Companies Act despite the service of a Statutory Demand under Section 337 of the Companies Act by PVAL by post on or about 20 July 2018. As a result, PVAL took out these proceedings which were commenced by Petition filed on 5 September 2018.
8. On 13 June 2019, Sunset Rentals was put into liquidation by order of this Court (Liquidation Order) on the application of PVAL by the appointment of the Liquidator pursuant to Section 291 of the Companies Act 1997 on the basis that the company was unable to pay its debts as they became due in the ordinary course of business.
9. The Liquidation Order was unsuccessfully challenged in the Supreme Court: Sunset Rentals Limited v Pacific View Apartments Ltd (2020) SC1994.
10. A similar application under Section 300(1) and (2) was moved by the applicant on 9 September 2020 and refused by the Court on 15 September 2020: In re Sunset Rentals Ltd (In Liquidation) (2020) N8500. Mr Gor of counsel for PVAL raised the issue of abuse of process, but did not press it. Hence, as no serious objection was taken by counsel for PVAL and none advanced by the Liquidator as to the competency of this application on the basis of res judicata or otherwise, I allowed the application to proceed under Section 300(1) and (2). Given that, it was not necessary to consider Section 155(4) of the Constitution. However, it is settled law that Section 155(4) of the Constitution is not the source of primary jurisdictional power as it is to be utilised only to enforce a primary right in the absence of other law: Peter Makeng v Timbers (PNG) Limited (2008) N3317, Louis Medaing v Ramu Nico Management (MCC) Ltd (2011) SC1144. The relief that the applicant seeks in the present case can be obtained by reliance upon an existing statutory provision. I will address the alternative relief the applicant seeks should the application for termination of the liquidation fail.
11. An application for an interim injunction to restrain PVAL and the Liquidator from giving effect to the Liquidation Order was granted by the Court by consent of the parties on 15 October 2020 pending the hearing and determination of this application.
12. PVAL and the Liquidator oppose the application.
LEGAL ISSUES
13. The main issue is whether it is just and equitable for the Court to terminate the liquidation of Sunset Rentals. If this issue is not determined in favour of the applicant, then the next issue to determine is whether any of the relief sought by the applicant in the alternative should be granted, ie, as to the making of orders; for the Court’s supervision of the liquidation; to reverse and or modify the Liquidator’s decision to disclaim the Contract for Sale and Purchase as onerous property and declare it to be valid and legally binding for the Liquidator to honour and give effect to; and to give to or vest Unit 902, Pacific View Apartments in the applicant.
APPLICATION FOR TERMINATION OF LIQUIDATION
14. Section 300 of the Companies Act 1997 gives the Court power to terminate a liquidation and it states:
“300. Court may terminate liquidation.
(1) The Court may, at any time after the appointment of a liquidator of a company, if it is satisfied that it is just and equitable to do so, make an order terminating the liquidation of the company.
(2) An application under this section may be made by the liquidator, or a director or shareholder of the company, or any other entitled person, or a creditor of the company, or the Registrar.
(3) The Court may require the liquidator of the company to furnish a report to the Court with respect to any facts or matters relevant to the application.
(4) The Court may, on making an order under Subsection (1), or at any time thereafter, make such other order as it thinks fit in connection with the termination of the liquidation.
(5) Where the Court makes an order under this section, the person who applied for the order shall, within one month after the order was made, submit a certified copy of the order to the Registrar for registration.
(6) Where the Court makes an order under Subsection (1) the company ceases to be in liquidation and the liquidator ceases to hold office with effect on and from the making of the order or such other date as may be specified in the order.
(7) Every person who fails to comply with Subsection (5) commits an offence and is liable on conviction to the penalty set out in Section 413(2).”
15. An application for termination of the liquidation of Sunset Rentals under Section 300 may be made by the liquidator or a director or a shareholder of the company or any other entitled person or a creditor of the company or the Registrar of Companies.
16. Section 300(1) grants the court a discretion to order the termination of a liquidation of a company if it is satisfied that it is just and equitable to do so. This provision gives power to the Court to terminate the liquidation of a company at any time after the appointment of a liquidator of a company and during the winding up of a company. The Court’s discretionary power under Section 300 is expressed in very wide terms. The exercise of the discretion in deciding whether it is just and equitable to terminate the liquidation of a company must be based on proper principles or grounds.
17. Some of the factors to be taken into consideration in exercising the discretion were suggested by Lay, J in Wep Kilip & In the Matter of Kamsi Trading Limited (2005) SC784 following a review of English, Australian and New Zealand authorities and these are:
18. These factors were considered and applied in Nathaniel Poya v Rex Paki (2008) N3535, In re Cakara Alam (PNG) Limited (2009) N4054, Re Mosbi Glass and Aluminium Ltd (2012) N4925, Re Piunde Ltd (2015) N6656, Re Hela Opene Investment Ltd (in Liquidation) (2018) N7630, and In re Sunset Rentals Ltd (In Liquidation) (2020) N8500. I now apply these factors in the following manner.
Notice of application to creditors and contributories
19. The application in this case is made by the applicant essentially in her capacity as a director and shareholder of Sunset Rentals pursuant to Section 300(2).
20. This factor requires the service of all the creditors with the application.
21. The applicant through Ms Kimbu of counsel contends that notice of the application was given to all creditors and contributories. Apart from PVAL, it is submitted that the other creditors are:
22. The applicant states that she could be regarded as a creditor as well as she is owed monies by Sunset Rentals for loss of salaries and entitlements on an employment package of K12,000.00 per month by virtue of her appointment by letter dated 1 January 2007 as the Managing Director of the company for an unspecified duration.
23. The applicant submits that except for PVAL, all creditors support the application.
24. Contrary to the applicant’s submissions, Mr. Gor of counsel for PVAL contends that the application should be refused as
the applicant has failed to give notice to all the creditors of Sunset Rentals and contributories. In addition, it is argued that
the application is opposed by PVAL as petitioning creditor and the Liquidator as:
25. Unless the contrary intention appears in Part XVIII (Liquidations) of the Companies Act, the term “creditor” which is defined under Section 290(1) of the Companies Act:
“means a person who, in a liquidation, would be entitled to claim in accordance with Section 351 that a debt is owing to that
person by the company, and includes a secured creditor only—
(a) for the purposes of Sections 291(2)(c), 297, 300, and 337; or
(b) to the extent of the amount of any debt owing to the secured creditor in respect of which the secured creditor claims under Section 353 as an unsecured creditor.”
26. Section 263 of the Income Tax Act provides, among others, that income tax, when it becomes due and payable, is a debt due to the State and payable to the IRC.
27. There is evidence before the Court that confirms that Sunset Rentals owes IRC the sum of K25,752.52 for unpaid income tax for tax periods 31 December 2013 to 31 December 2018. The applicant has failed to provide evidence to show that IRC was given notice of the application.
28. Dr. John Yurikobanyal Mua, Ranu Ume and Alfred Kimbu trading as Kimbu & Associates Lawyers assert that they are creditors of Sunset Rentals as the company owes each of them a substantial amount of money. Dr. John Yurikobanyal Mua states that he is owed a total of K87,236.79 which consists of a loan given to Mrs. Gubon in her capacity as the Managing Director of Sunset Rentals in the sum of K67,105.22 to pay off the company’s loan arrears with Australia and New Zealand Group (PNG) Limited plus 30% interest pursuant to a loan agreement they entered into dated 22 May 2019. Ranu Ume states that he or she is owed K20,000.00 consisting of a loan of K10,000.00 to Dr. Gubon plus interest of K10,000.00 pursuant to a loan agreement they entered into dated 10 March 2016. Mr. Nema Ugupame who is the Practice Manager of Kimbu & Associates Lawyers states that the firm of lawyers is a creditor who is owed K1.5 million for legal services rendered and will render to Sunset Rentals in future and the terms of settlement have been translated into or will be governed by the Contract for Sale and Purchase.
29. As to whether Dr. John Yurikobanyal Mua, Ranu Ume and Alfred Kimbu trading as Kimbu & Associates Lawyers have been recognised by the liquidator formally or otherwise as creditors of the company under the relevant provisions of the Companies Act in particular Division 8 of Part XVIII, is not in issue here. For now and for the purposes of this application, I am satisfied that Dr. John Yurikobanyal Mua, Ranu Ume and Alfred Kimbu trading as Kimbu & Associates Lawyers claiming to be creditors of Sunset Rentals were given notice of the application.
30. As to whether the applicant herself should be regarded as a creditor of Sunset Rentals, I think that is a matter for the Liquidator to determine when he deals with creditor’ claims under the relevant provisions of the Companies Act in particular under Part XVIII, Division 8 and Schedule 9 of the Companies Act.
31. Accordingly, as not all creditors or contributories of Sunset Rentals were given notice of the application, that is something that militates against the grant of the application.
Nature and extent of creditors and ability to pay debts
32. It is not disputed that Sunset Rentals owns two units described as Units 902 and 904A at the Pacific View Apartments facilitated by the acquisition of certain number of shares in the capital of PVAL. The affidavit of Gretchen Salvidar confirms that Sunset Rentals owes PVAL a sum of K167,067.11 for outstanding body corporate levies and fees for both Units 902 (K92,239.09) and 904A (K74,828.02) as at 13 October 2020 and accruing.
33. The affidavit of Gretchen Salvidar also confirms that the applicant personally with her late husband owe PVAL the sum of K159,259.16 for body corporate levies in respect of Unit 804 and accruing.
34. Sunset Rentals owes IRC K25,752.52 for unpaid income tax for tax periods 31 December 2013 to 31 December 2018.
35. It is not disputed that the debt giving rise to these proceedings being brought in the sum of K44,742.83 has been paid in full.
36. There is no strong and cogent evidence to demonstrate that the company has the capacity to settle all the debts identified. In fact, the Liquidator states in his affidavit that after the dismissal of the Supreme Court appeal, he has done preliminary assessments of the liquidity or solvency status of the company and has found that the company has not traded since 2014, it does not have any stock in trade, and it has no money in its bank account. The Liquidator has also stated that he has not fully found out the extent of the debts and liabilities of the company. He also states that he has more than twenty-five years of acting as a liquidator, appointed by the Court, of various companies and his preliminary assessment of the company is that it will not be able to pay its debts and will never be able to trade solvently again.
37. I have considered the applicant’s submission regarding the purported sale of Unit 902 by Sunset Rentals to Alfred Kimbu trading as Kimbu & Associates Lawyers for K1.5 million. Objection has been raised by Mr. Gor as to the applicant’s reliance on the Contract for Sale and Purchase under Section 19 of the Stamp Duties Act as it has not been stamped in accordance with the Stamp Duties Act. This objection was raised during submissions after the affidavit annexing the Contract for Sale and Purchase was admitted into evidence as forming part of the affidavit evidence relied on. Section 19 of the Stamp Duties Act is expressed in mandatory terms. It states, among others, that subject to the Act, an instrument shall not be pleaded or given in evidence, except in criminal proceedings or be admitted to be good, useful or available in law, unless it is duly stamped. The Contract for Sale and Purchase should not have been admitted into evidence. Unless stamped, the applicant cannot rely on the Contract for Sale and Purchase and by that fact alone, I will disregard this piece of evidence.
38. In addition, the Contract for Sale and Purchase lacks integrity given if the applicant first executed the contract on 20 June 2017, that was done before the grant of Letters of Administration and she had no authority to execute the contract under the provisions of the Wills, Probate and Administration Act. If the applicant again signed the contract on 6 August 2020, it was done after she was granted Letters of Administration and records at IPA changed to show that she was a director and shareholder of Sunset Rentals, but when the company was put into liquidation by order of the Court and which liquidation order was unsuccessfully challenged in the Supreme Court. The liquidator has power to disclaim onerous property under Section 319 of the Companies Act and a formal determination was made by the Liquidator in relation to the Contract for Sale and Purchase by his letter to the applicant’s lawyers dated 6 October 2020.
39. The total debt owed by Sunset Rentals to PVAL is substantial. The amounts allegedly owed by Sunset Rentals to others claiming to be creditors identified above are also substantial. I will go by the preliminary assessments of Sunset Rentals by the Liquidator that the company will not be able to pay its debts and will never be able to trade solvently again.
40. It has not been demonstrated by the applicant that the Liquidator’s costs have been paid or secured.
41. No business or financial records have been brought into evidence to contest the Liquidator’s preliminary assessments. Given this, it is something that militates against the grant of the application.
42. In addition, there is no strong and cogent evidence to show that the applicant has the means or financial capacity to; settle her own debts and she and the estate of the late Dr. Gubon owe a substantial amount of money to PVAL; or to bail Sunset Rentals out from its debts in her capacity as shareholder or otherwise. There is also evidence showing that when pursuing her application for the grant of letters of administration, the applicant stated that she has no other means of revenue/income other than from the estate of her late husband.
Attitude of creditors, contributories and liquidator
43. Dr. John Yurikobanyal Mua, Ranu Ume and Alfred Kimbu trading as Kimbu & Associates Lawyers support the application. PVAL and the Liquidator oppose the application.
44. The separate debts Sunset Rentals owes are substantial. The objections by PVAL and the Liquidator are justified. That is something that militates against the grant of the application.
Current trading position and general solvency of the company
45. The current trading position and general solvency of the company has been clarified by the Liquidator in his preliminary assessments. Has Sunset Rentals demonstrated that it is able to meet the solvency test?
46. The “solvency test” has the meaning set out in Section 4 of the Companies Act 1997: see Section 2, Companies Act 1997.
47. Section 4(1) actually sets out the test, but it is instructive to state below the whole of Section 4:
“4. Meaning of "solvency test".
(1) For the purposes of this Act, a company satisfies the solvency test where—
(a) the company is able to pay its debts as they become due in the ordinary course of business; and
(b) the value of the company's assets is greater than the value of its liabilities, including contingent liabilities.
(2) Without limiting Sections 50 and 53(3), in determining for the purposes of this Act (other than Sections 234 and 235 which relate to amalgamations) whether the value of a company's assets is greater than the value of its liabilities, including contingent liabilities, the directors—
(a) shall have regard to—
(i) the most recent financial statements of the company that comply with Section 179; and
(ii) all other circumstances that the directors know or ought to know affect, or may affect, the value of the company's assets and the value of its liabilities, including its contingent liabilities; and
(b) may rely on valuations of assets or estimates of liabilities that are reasonable in the circumstances.
(3) Without limiting Sections 234 and 235, in determining for the purposes of this Act whether the value of an amalgamated company's assets will be greater than the value of its liabilities, including contingent liabilities, the directors of each amalgamating company—
(a) shall have regard to—
(i) financial statements that comply with Section 179 and that are prepared as if the amalgamation had become effective; and
(ii) all other circumstances that the directors know or ought to know would affect, or may affect, the value of the amalgamated company's assets and the value of its liabilities, including contingent liabilities; and
(b) may rely on valuations of assets or estimates of liabilities that are reasonable in the circumstances.
(4) In determining, for the purposes of this Act, the value of a contingent liability, account may be taken of—
(a) the likelihood of the contingency occurring; and
(b) any claim the company is entitled to make and can reasonably expect to be met to reduce or extinguish the contingent liability.”
48. Gabi J in Nathaniel Poya v Rex Paki (2008) N3535 in addressing the issue of the solvency of a company in the context of an application to terminate the liquidation of a company made the following observations at paragraph 11 of the judgment:
“Solvency is an important consideration in an application to terminate liquidation. The question is whether the company meets the solvency test. There are 2 requirements: First, the company must be able to pay its creditors as the debts fall due. Second, assets must exceed liabilities. Both requirements must be met before a company is said to be solvent (see In the matter of an application by Agmark Pacific Ltd and James Sinton Spence Liquidator of Sepik Coffee J.V. Ltd (In Liquidation) (2007) N3223). Quite clearly the company does not meet the solvency test because it cannot pay creditors as the debts fall due. In Agmark Pacific Ltd and James Sinton Spence (supra), His Honour Lay J. said:
“Solvency is of significance when a stay of proceedings in the winding up is sought: In Re a Rivate Company (1935) NZL a 120 and Re Mascot Home Furnishes Pty Ltd [1970] VicRp 78; (1970) VR 593, 598. In that case solvency is used in the sense of assets exceeding liabilities, but...solvency in the sense of being able to pay debts as they fall due is also a significant factor. If I make an order under s300 (1), the company is licensed to go out and incur more debts. Indeed, there is the danger that new creditors could take the view that the company is sound and able to pay its debts as they fall due because the Court has discharged it from liquidation. The duty of the court extends beyond the existing creditors, to potential new creditors. If the company is allowed to trade again while being unable to pay its creditors as they fall due, it is potentially liable to being placed into liquidation again. New creditors would not be aware, that after liquidator’s fees, employee entitlements, costs of a compromise and land rates there is a very large preferential debt due to Internal Revenue Commission pursuant to Schedule 9(4)(b) of the Companies Act and that the Goods and Services Tax Act s86(2)(b), which will be rank before all unsecured creditors. The court is likely to be concerned if the proposal to terminate the liquidation preserves the existing debt, but defers payment, particularly where the deferment has no enforceable status. See the remarks of Street J. at first instance in Re Data Homes Pty Ltd [1971] 1 NSWLR 338 at 341. If the company fails again, recovery by the new creditors may be prejudiced by the existing debts: see Mercy v Wanari [2000] NSWSC 756 at para. 47...In my view it would be rare circumstances indeed where the court would make an order under Section 300(1) in circumstances where an unpaid creditor could shortly thereafter make an application to put the company back into liquidation, which is the case here while the company does not meet the solvency test and there is no binding arrangement between the existing creditors.” ”
49. I apply the solvency test and the observations of Gabi, J in Nathaniel Poya v Rex Paki (2008) N3535 in the following manner.
50. Evidence before the Court is that a valuation was carried out on units 902 and 904A referred to as Executive Apartments by a registered valuer from LJ Hooker, Port Moresby on 20 November 2007 at the request of ANZ Banking Group (PNG) Limited and the Valuation Report dated 20 November 2007 gives the total market value of both units at K1,420,000.00.
51. Another valuation was carried out by Pacific Services & Engineering Limited on 20 February 2017. The market value of both units was assessed at K2,550,000.00.
52. The applicant states that the total value of both units exhibited by the two valuation reports far exceeds the total body corporate levies due and owing and the judgment debt claimed in the petition has been paid in full.
53. I am satisfied that on the evidence available before the Court, the total value of both units 902 and 904A at the Pacific View Apartments exceeds K2 million.
54. I have considered the approach taken by Hartshorn, J in In re Cakara Alam (PNG) Limited (2009) N4054 where Cakara Alam (PNG) Limited was found to be solvent as it had assets valued at over K7.1 million and from profit and loss statements received by the liquidator, it was forecast that it would trade profitably and that a significant amount of about K458,000.00 would remain following payment of all ascertained admitted creditors. Apart from the information on the value of units 902 and 904A, no profit and loss statement or other financial or business records have been produced in evidence to demonstrate or forecast that the company will trade profitably.
55. The Liquidator’s evidence is credible. As I have alluded to earlier, he has stated in his affidavit that after the dismissal of the Supreme Court appeal, he has done preliminary assessments of the liquidity or solvency status of Sunset Rentals and has found that the company has not traded since 2014, it does not have any stock in trade, and it has no money in its bank account. The Liquidator has also stated that he has not fully found out the extent of the debts and liabilities of Sunset Rentals. He also states that he has more than twenty-five years of acting as a liquidator, appointed by the Court, of various companies and his preliminary assessment of Sunset Rentals is that it will not be able to pay its debts and will never be able to trade solvently again. The preliminary assessments of the Liquidator of Sunset Rentals are very damning. I do not see how the company is able to meet the solvency test. The applicant has not demonstrated that Sunset Rentals is solvent. This militates against the granting of the application.
Non-compliance by directors with statutory duties
56. No company returns have been filed with the Office of the Registrar of Companies at Investment Promotion Authority since 2011. The applicant became the sole shareholder and director of the company on 5 August 2019 following the filing of an appeal on 2 July 2019 against the decision granting the liquidation order and more particularly after the liquidation order was rendered inoperative by an order of the Supreme Court on 3 July 2019 and subsequently stayed by the Supreme Court on 1 August 2019. There is no strong and cogent evidence of non-compliance by the applicant with her statutory duties since her appointment. This favours the grant of the application.
Circumstances leading to making of liquidation order
57. The Judgment Debt in WS No.7 of 2017 which was outstanding or not paid in full prior to the filing of the petition in these proceedings has been paid in full. This favours the grant of the application.
Nature of the business
58. On the evidence available, the true nature of Sunset Rental’s business is unknown. The Company Extract issued as at 30 September 2019 under the heading “General Details – Business Activity” indicates “Other”. The onus was on the applicant to disclose details of the nature of the company’s business. Given that, it is uncertain as to how Sunset Rentals will generate income to pay its debts as they become due in the ordinary course of business and will not assist in determining the company’s prospect of becoming solvent. This militates against granting the application.
Determination
59. Except for two, all other factors to be considered in the exercise of the Court’s discretion have been considered against the grant of the application. In the circumstances, I am not satisfied that it is just and equitable to terminate the liquidation of Sunset Rentals.
APPLICATION FOR ALTERNATIVE RELIEF
Court supervision of liquidation
60. The applicant submits that in the event that her application to terminate the liquidation is refused, there be an order by way of leave for the Court’s supervision of the liquidation of Sunset Rentals in accordance with Section 332(1)(a) and (b) of the Companies Act. I think, the circumstances of this case do not justify the making of an order that the applicant seeks under Section 332(1)(a) and (b). If it is considered that the liquidator has failed to carry out his duties, an appropriate application can be made under Section 334 (Orders to enforce Liquidator’s duties) of the Companies Act.
Disclaimer of onerous property
61. The applicant also seeks an order to reverse and or modify the Liquidator’s decision to disclaim the Contract for Sale and Purchase under Section 319 as onerous property. Again, it is my view that the circumstances of the present case do not justify the making of an order that the applicant seeks.
62. The applicant also seeks an order for Unit 902 Pacific View Apartments to be vested in her pursuant to Section 319(5)(a) and (b) and (6) of the Companies Act. Again, it is my view that the circumstances of the present case do not justify the order that the applicant seeks.
Determination
63. For these reasons, I refuse all the alternative relief the applicant seeks.
ORDER
64. The orders of the Court are:
5. Time is abridged.
--------------
Ruling and orders accordingly.
________________________________________________________________Kimbu & Associates: Lawyers for the Applicant
Fiocco & Nutley: Lawyers for the Petitioning Creditor
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