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459P Windup Application on Company with Receivers Appointed?

Discussion in 'Commercial Law Forum' started by Crackajack, 21 July 2014.

  1. Crackajack

    Crackajack Member

    21 July 2014
    Likes Received:
    I am employee made redundant by Receiver/Managers nine months ago and owed substantial money.
    The company has not progressed from bank appointed Receiver/Managers to Administration or to Liquidation due to the bank not being first mortgagee on the only assets-property.
    Can a 459P Windup Application be made against a company with Receivers/Managers appointed?
  2. Sophea

    Sophea Guest

    Hi Crackajack,

    It would appear so, as the court is to presume insolvency in circumstances where a receiver or manager is appointed in the 3 months preceding a winding up application, pursuant to s459C of the Corporations Act. Be aware though that you will need standing if you want to file a winding up application, so make sure you get some good advice as to how to proceed.
  3. Tim W

    Tim W Lawyer
    LawTap Verified Lawyer

    28 April 2014
    Likes Received:
    This kind of question comes up often.
    When it does, I have sometimes found that what people are really asking is
    something along the lines of

    "Can I do something myself to move the process along,
    and get my own entitlements, rather than have to wait?"

    To which my reply often includes...
    1. As an employee, you are probably an unsecured creditor.
      If so, then you are in a long queue that starts with the ATO,
      and then (usually) the employer's finance provider(s)/ bank(s),
      then the secured creditors, then the unsecured creditors.

    2. If you are saying to yourself
      "...but after all those guys, there probably won't be anything left for me...",
      then sadly, you are probably right.

    3. There are not many mechanisms available that operate to place the interest
      of an individual unsecured creditor ahead of the other creditors.
      Especially when the work of receivers or liquidators is proceeding in the usual way,
      that is, not wrongfully, even if not in the way you might like, or as efficiently as you think it should.
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