Sheahan in the matter of Gemhall Holdings Pty Ltd (in liquidation) v Lo Pilato (liquidator)  FCA 700
29 June 2012
1 On 5 June 2012 I made declarations to the effect that:
(1) the purported resolution of Gemhall
Holdings Pty Limited (Gemhall) by a director Kamila Donovan made on 2 March 2012
to appoint the defendant Frank Lo Pilato as its administrator is invalid;
(2) the resolution of the creditors of
Gemhall made on 11 April 2012 that Gemhall be wound up is also invalid; and
(3) the purported appointment of Mr Lo
Pilato, a registered liquidator, as the administrator and then as the liquidator
of Gemhall is void and of no effect.
2 I also made consequential orders.
3 Consequently, Gemhall has not been placed in administration
and has not been placed in liquidation.
The orders did not simply set aside the administration and the
liquidation, or simply terminate the liquidation from the date of the
declaratory orders. The orders were to
negate the possible effect of the purported administration and the purported
liquidation ab initio. It was, in my view, necessary to make the
orders in those terms because Gemhall relevantly operated as trustee of a trust,
and the effect of its administration and liquidation – even temporarily – could
or would bring to an end its appointment as trustee. The setting aside of the liquidation would
not re-instate Gemhall as trustee of the trust.
The trust assets could then be dealt with by a new trustee. The Court had earlier made orders to restrain
dealings in that trust assets, but its orders would not have extended to any new
trustee of the trust.
4 These are the reasons for those orders.
5 I point out that Mr Lo Pilato did not act inappropriately on the material
available to him in accepting appointment as the administrator, and then as the
liquidator of Gemhall. On the hearing he
provided the Court with such information as he had, and submitted to such orders
as the Court considered appropriate.