LexisNexis?
  • world mapWorldwide
  • Contact Us
 

Kennards Hire Pty Ltd v RMGA Pty Ltd [2010] NSWSC 1387

by Emma.Gleeson 8. February 2011 10:08

Facts

 

The applicant applied by interlocutory process for:

·         a review of the remuneration of Mr Clout as liquidator of the defendant determined by resolutions of creditors under s 473(6) of the Corporations Act 2001 (Cth) (the Act); and

·         an inquiry by the court into the conduct of Mr Clout as liquidator of the defendant, under s 536(1)(b) of the Act: [2]-[6].

 

An applicant for an inquiry under s 536 must show that such an inquiry is warranted by establishing that there is a sufficient basis for making such an order. A sufficient basis is in the nature of a well-based suspicion indicating a need for further investigation: [35]-[36]. However, even if such a basis is shown, the court has discretion whether or not to order an inquiry: [36].

 

Outcome

 

The conduct of the liquidator in neither opposing nor consenting to an application to stay a winding up order under s 482 did not warrant an inquiry, on the basis that:

o        The power of the court under s 482 is discretionary, and the interests of creditors, the liquidator, contributories and the public will be considered by the court: [50].

o        The court will expect to have before it some account by the liquidator of the administration: [52]-[53].

o        Given that the liquidator had reservations about the completeness of the material provided to him and the company’s solvency, it would have been “irresponsible in the extreme” for the liquidator to have consented to a stay of the winding up order: [53].

o        The proper course was therefore to do as the liquidator did and put material before the court recording the liquidator’s reservations: [53].

 

Section 542 of the Act expressly recognises a distinction between books of the company and books of the liquidator pertaining to the administration of the company. Whether legal advice obtained by the liquidator was owned by the liquidator or the company did not warrant an inquiry under s 536: [60], [65].

 

Where a claim for review is made under s 473(6), the threshold question is whether the court should carry out a review, and this question is to be approached with s 473(10) in mind: [75]-[76].

 

The applicant took issue with the liquidator’s remuneration on the basis that the amounts claimed were excessive, involved duplication of work, and work which was unnecessary given the circumstances of this case.

 

Barratt J held that some of the items claimed did raise possible issues under s 473(1)(k)(i), in relation to time “properly taken” and “likely to be properly taken” and these potential queries formed a proper basis for the court to undertake a review of the remuneration under s 473(6).

 

Given that there was to be a review of remuneration under s 473(6) and no other basis for an inquiry under s 536 had been established, there was no order made for an inquiry.

 

Relevant paragraphs of Ford:

[27.129], [27.183], [27.184]

Tags:

Ford's Principles of Corporations Law

Lollback v Brakepower Pty Ltd [2010] NSWSC 1457

by Emma.Gleeson 7. February 2011 16:32

Facts

The plaintiff was the sole director and contributory of Brakepower Pty Ltd (Brakepower). He sought two orders against the liquidator of Brakepower: for a review of a registrar's decision concerning the costs of a remuneration application; and for an inquiry, pursuant to s 536 of the Corporations Act 2001 (Cth), into the liquidator's conduct as liquidator of Brakepower.

 

A review "involves discretionary intervention": [13] (referring to Tomko v Palasty (No 2) [2007] NSWCA 368; (2007) 71 NSWLR 61). The starting point for a review is the decision sought to be reviewed, the basis on which it was made and the material placed before the court.

 

Where review is sought of a decision "relates wholly to a matter of discretion", such as a decision as to costs, "the court will be very slow to intervene and should not do so except on grounds of the kind identified in House v R [(1936) 55 CLR 499] at 504–505": [15].

 

In the case at hand, the tapes of the hearing before the registrar had been "lost", so there was no record of the reasons for the registrar's decision. In such a situation, the relevant question" is whether, on the facts, the decision is unreasonable or plainly unjust": [16].

 

Outcome

The registrar's decision in relation to remuneration resulted in the liquidator being awarded approximately 55% of one part of his claim and 50% of another part of his claim. This must be considered in light of the procedure. The liquidator had a right to remuneration. He "resorted to a procedure provided to him by statute and made submissions to the court as to what it should allow him": [19]. The fact that it allowed him less was not an "event" for the purposes of the decision as to costs, even in the light of submissions made on the plaintiff's behalf: [19]. There was therefore no basis for discretionary intervention in the registrar's decision as to costs: [20].

 

In relation to the claim pursuant to s 536 of the Corporations Act, Barrett J referred to his Honour's decision in Kennards Hire Pty Ltd v RMGA Pty Ltd [2010] NSWSC 1387 at [35] to [37]: [22].

 

Relevantly, the first stage of proceedings under s 536 is for the court, upon application, to establish whether an inquiry is warranted. For this question to be answered positively, the applicant must establish that there is a sufficient basis, on the grounds of "something about the liquidator's conduct": [22].

 

The court has a discretion whether or not to order an inquiry, and the purpose of such an inquiry should be borne in mind: that purpose is related to regulation, supervision, discipline and correction of liquidators in the interests of honest and efficient administration of the estates of companies subject to winding up. The interest to be served is a public interest. The section is not concerned in any direct way with vindication of private rights: [22] (citing [37] of Kennards Hire, above).

 

His Honour held that the task of a judge considering whether an inquiry under s 536 of the Corporations Act is warranted "is to decide whether there is a well-based suspicion indicating a need for further investigation of these matters (or any of them), with “suspicion” connoting a positive feeling of actual apprehension or mistrust, as distinct from mere wondering": [23].

 

The conduct said by the plaintiff to warrant an inquiry was the liquidator's resistance to the termination of the winding up of Brakepower; the convening of a meeting to fix the liquidator's remuneration; and the amount of remuneration claimed by the liquidator: [24]–[26].

 

In relation to the liquidator's resistance to the termination of the winding up of Brakepower, it cannot be said that such resistance at a particular date was unreasonable in circumstances where a report which may have supported the termination of the winding up had been provided to the liquidator at close of business on the previous business day: [57].

 

In any case, the report supported the termination of the winding up on the basis of a proposal that the debt owed to a related party, Vamona Pty Ltd (Vamona), would be capitalised and converted into share capital: [57]. That proposal entailed potential disadvantage for Vamona: [59]. Among other issues, the plaintiff was the sole director of Vamona, which raised questions as to how he would compromise his fiduciary obligations to both Brakepower and Vamona: [59].

 

In the circumstances, the liquidator "was entitled to have reservations as to whether [capitalisation] would occur" unless and until it did: [60]. (See also Re SNL Group Pty Ltd [2010] NSWSC 797 as to the absence of a well-founded assumption that the court would see an undertaking by the plaintiff regarding capitalisation as a sound basis on which to terminate a winding up: [61].)

 

Had the plaintiff sought the liquidator's approval under s 471(1A) of the Corporations Act in relation to the issue of shares, attended to the capitalisation and then provided evidence of solvency, the liquidator may have taken a different attitude to the termination application: [62].

 

However, in the circumstances, the liquidator was not bound to consent to the application: [65].

 

In any case, a liquidator's consent to a termination application does not mandate that termination. The court's power under s 482 of the Corporations Act is discretionary (at [63]), although the liquidator's position is "an important consideration" (at [64]).

 

In relation to the convening of the meeting of creditors, the liquidator gave notice of the meeting on 25 February 2010, on which date, the plaintiff's "termination application had been before the court on two occasions but had not been progressed in any substantive way": [71]. That remained true at the time of the meeting on 12 March 2010.

 

The position under s 473(3) of the Corporations Act is that "the fixing of remuneration is normally or principally a task for a meeting of creditors": [69]. While it may be dealt with in a summary manner when the court deals with an application for the termination of winding up, in the case at hand, the circumstances were such that there was no "sound basis for an expectation" that the court would so deal with the question of remuneration: [71].

 

The meeting of creditors declined to grant the remuneration sought by the liquidator: [72]. Importantly, it also refrained from making a determination that some lesser amount could have been granted, as it had the power to do under s 473(3)(b)(i) of the Corporations Act: [72].

 

In those circumstances, it was not unreasonable for the liquidator to make an application to the court under s 473(3)(b)(ii) of the Corporations Act: [73].

 

The conduct of the liquidator in convening a meeting of creditors for the purpose of considering the question of remuneration did not warrant an investigation under s 536 of the Corporations Act: [75].

 

Nor did the liquidator's inadvertent failure to provide a remuneration report with the notice of the meeting of creditors warrant an investigation under s 536 of the Corporations Act, especially as the meeting made no decision (so no decision was made on the basis of inadequate or incomplete information): [79]–[80].

 

In relation to the quantum of remuneration sought by the liquidator, the fact that the court awarded "a sum appreciably lower than that sought", but that of itself is not sufficient to warrant an inquiry pursuant to s 536 of the Corporations Act: [86].

 

Finally, his Honour held that a claim for an inquiry pursuant to s 536 of the Corporations Act does not envisage "an inquiry 'whether any other conduct of the Liquidator was unreasonable, improper or in breach of the Act'": [90]. The court's power under s 536(1)(a) and (b) is confined; it is not "free to range at will over the whole of the liquidator’s conduct": [90].

 

 

Relevant paragraphs of Ford

[27.180], [27.183], [27.184]

 

Tags:

Ford's Principles of Corporations Law

Waco Kwikform Limited v Jabbour [2010] NSWSC 1379

by Emma.Gleeson 7. February 2011 11:37

Facts

 

The plaintiff made an application under s 74K of the Real Property Act 1900 (NSW) to extend the operation of a caveat. The plaintiff lodged the caveat on or about 26 July 2010. It related to two parcels of land of which the defendant was the registered proprietor (alone or in common with others).

 

The interest claimed by the plaintiff in the caveat was an equitable interest as chargee. That interest was said to arise out of a guarantee and indemnity which the defendant entered into with the plaintiff on 14 October 2008.

 

The guarantee and indemnity related to goods and services provided by the defendant to a business conducted by Jabbcorp Pty Ltd (Jabbcorp). Voluntary administrators were appointed to Jabbcorp on 5 October 2010. On 26 October 2010, the plaintiff received a lapsing notice in respect of the caveat.

 

Outcome

 

The questions arising for consideration on the application were set out by White J at [9]. Those questions, and the answers his Honour gave, are as follows:

 

1. ‘Did the plaintiff require leave under s 440J of the Corporations Act 2001 (Cth) to bring this proceeding?’

·         The application to extend the operation of the caveat was not a step by way of enforcement of the guarantee (s 440J(1)(a)) but rather a step to preserve the status quo: [11]. Nevertheless leave was required under s 440J(1)(b) because the application was a proceeding ‘in relation to’ the guarantee: [12].

 

2. ‘If so, can leave be given retrospectively?’

·         Yes: [14].

 

3. ‘If so, should retrospective leave be given to the plaintiff to bring the proceeding?’

·         The critical matters were (at [20]ff):

·         (1) if leave were refused, the plaintiff may suffer material damage: [21];

·         (2) the grant of retrospective leave would not be counter to the policy underlying s 440J of the Corporations Act 2001 (Cth): [22];

·         (3) the extension of the caveat was not a step in the enforcement of the guarantee: [23]; and

·         (4) the grant of retrospective leave would not interfere with the administration of Jabbcorp or the implementation of a deed of company arrangement: [25]-[28].

·         White J concluded that leave should be granted: [29].

4. ‘Is any debt secured by the guarantee and indemnity?’

·         It was at least seriously arguable that the guarantee and indemnity applied to a debt owing by Jabbcorp under a subcontract of 2 February 2010 and was not confined to debts entered into at the date of the guarantee: [36]-[37].

·         The lack of a judgment in relation to any or all of the amount claimed against Jabbcorp was not relevant: [39].

·         Although the defendant claimed that invoices giving rise to the debt did not comply with the subcontract, it did not necessarily follow that the money was not due: [41]-[42].

·         Thus there was ‘at least a serious question to be tried that [Jabbcorp] owes a debt to the plaintiff which is subject to the guarantee and indemnity and secured by the charge’: [43].

5. ‘Does the charge in the guarantee and indemnity create an interest in the land or only in the proceeds of sale of land?’

·         The charge was of the defendant’s beneficial interest in land: [45].

 

6. ‘Is it a reason not to extend the caveat that the plaintiff has not requested the defendant to execute a mortgage or other instrument of charge and has not sought the defendant's permission to lodge a caveat?’

·         No: [46]-[48].

 

7. ‘Does the balance of convenience favour extending the caveat?’

·         The plaintiff made the usual undertaking as to damages.

·         A second caveat had been lodged by another person.

·         The defendant’s proffered undertaking to not lodge any instrument for registration without first giving the plaintiff seven days’ clear notice would not provide sufficient protection: [54]-[55].

·         Registration of a plan of subdivision ‘would not materially reduce the plaintiff’s security’ and ‘should be capable of being implemented’ even if the caveat was extended: [58].

·         The balance of convenience favoured an extension of the caveat: [59].

 

It is generally necessary for a summons seeking the extension of the operation of a caveat to also seek final relief: [60]-[62]. This had not been sought in the present case. White J accepted the plaintiff’s undertaking to file a further amended summons seeking final relief: [63].

 

An order was made extending the caveat.

 

 

Relevant paragraphs of Ford:

 

[26.070], [26.072]

 

Tags:

Ford's Principles of Corporations Law

Parkview Qld Pty Ltd v Fortia Funds Management Limited (in liquidation) [2010] NSWSC 1469

by Emma.Gleeson 4. February 2011 15:50

Facts

The Plaintiff provided security under its building contract with the Defendant, part of which was a bank guarantee entitling the Defendant to deduct retention monies. On certification of practical completion, the Defendant’s entitlement to security reduced to 50% and it had to release security.

 

The Defendant provided the Bank with a fixed and floating charge over its assets including the security. The Plaintiff, the Defendant and the Bank executed a deed entitling the bank to security provided by the Plaintiff.

 

The Plaintiff obtained an injunction restraining the Defendant from calling on the bank guarantee.

 

Practical completion was reached. The Plaintiff obtained an adjudication under the Building & Construction Security of Payments Act.

 

The Defendant was placed into liquidation, and the Plaintiff submitted the adjudication amount as a proof of debt.

 

The liquidators report stated it was unclear if a surplus was available to the Plaintiff after paying debt to the Bank. There was no evidence that the Bank was a creditor of the Defendant.

 

The Plaintiff sought leave to continue proceedings against the Defendant in liquidation and to amend its summons.

 

The purpose of s 500 of the Corporations Act prohibition is to avoid a multiplicity of proceedings when the appropriate procedure is to lodge a proof of debt in the liquidation.

 

Onus is on the claimant to show its claim has a serious foundation and gives rise to a serious dispute. Relevant factors include:

  • Degree of recollection of Corporations Act and issues involved;
  • Prospects that a proof of debt will be rejected; and
  • Stage of proceedings: [28].

 

Outcome

The relief sought by the Plaintiff was not capable of being dealt with by the proof of debt procedure. It was self evident it would be refused and involved a serious issue to be tried: [30].

 

Leave for the plaintiff to continue the proceedings was granted. No step to enforce the judgment is to be taken without the Court’s leave.

 

Relevant paragraphs of Ford

[26.070], [26.071], [27.080], [27.126], [27.440], [27.450], [27.590]

Tags:

Ford's Principles of Corporations Law

Norman, in the matter of Forest Enterprises Australia Limited (Administrators Appointed)

by Emma.Gleeson 4. February 2011 12:00

Facts

The Plaintiffs sought a declaration that FEAP, the First Defendant, was the lessee of the Third, Fourth and Fifth plaintiffs’ land and had repudiated or otherwise breached essential terms of the leases granted by these plaintiffs.  The Plaintiffs also sought a direction that they would be justified in accepting the First Defendant’s repudiation and terminating or forfeiting the leases.

 

Since oral evidence was contradictory, the court relied on written agreements to identify the lessee of Tasmanian Plantation. The court justified this reliance on written documents on the grounds that it was satisfied that:

  • the written agreements were not a sham;
  • the agreements were not executed by the parties in error; and
  • there had been no agreement that the Third Plaintiff would cease to be a lessee

 

It was held that the Fourth Plaintiff had leased land to the Third Plaintiff who subsequently sublet the land to the First Defendant. There was no evidence of the Fifth Defendant’s lessee.

 

The First Defendant did not indicate it would not perform its lease obligations.

 

The First Defendant claimed it had a right of set-off against the rent. It made this claim on the basis of a letter provided by Third Plaintiff, which enabled the First Defendant to meet its ASIC regulations regarding funding. The Third Plaintiff agreed to provide funding as requested. The agreement was terminable with one month’s notice. The First Defendant requested the funds.

 

The First Defendant’s consideration was continuing to trade: [37].

 

The ability to terminate the agreement without ASIC approval did not invalidate it. The Third Plaintiff was thus indebted to the First Defendant.

 

It is possible in equity to set off a cross demand against rent. However the equity must impeach the title to the legal demand, i.e. go to the very foundation of the landlord’s claim: [42].

 

Impeachment existed as the transactions were so closely related they could be seen as one. The letter enabled the First Defendant to meet its financial obligations including paying rent: [45].

 

A contract can exclude set-off by clear terms or implication: [46].

 

The lease provided rent was to be paid without any deductions whatsoever. “Deduction” does not include a set-off conferred by operation of the law: [48].

 

Outcome

The First Defendant has the right to set-off the amount due under the letter against the rent owed to the Third Plaintiff.

 

If incorrect about set-off, common law principles of termination for repudiation apply to leases. Mere non-payment of rent is rarely sufficient to found repudiation as it does not convey to the reasonable person the intent to disavow the lease: [51].

 

The lessor must establish that the lessee is wholly and finally disabled from performing the contract. In this case, there was no evidence of this.


If requested, the Court would declare that the Third Plaintiff is lessee of the Fourth Plaintiff’s land which was sublet to First Defendant.

 

There was no repudiation but the Court will direct that receivers are justified in causing the Third Plaintiff to exercise any right under leases based on First Defendant’s failure to pay rent.

 

Relevant paragraphs of Ford

[27.182]

 

Tags:

Ford's Principles of Corporations Law

Rewards Projects Ltd (Administrators Appointed) In Its Capacity As The Responsible Entity Of The Rewards Group Tropical Fruit Project 2006, Rewards Group Tropical Fruit Project 2007 And Rewards Group Tropical Fruits Project 2008 -V- The Ark Fund Ltd (Administrators Appointed) (Receivers And Managers Appointed) [2010] WASC 394

by Emma.Gleeson 1. February 2011 15:08

Facts

The Administrators of certain managed investment schemes sought a direction from the Court pursuant to ss 447A and 447D of the Corporations Act 2001 (Cth) that they may properly and justifiably enter into, and give effect to, a deed facilitating the harvest of fruit crops associated with certain managed investment schemes (“the Crop Deed”): [1] and [6].

 

The defendants opposed the application to enter the Crop Deed: [5].

 

A possible dispute existed between the growers of the fruit and the defendants regarding the ownership of the fruit crop: [13].

 

Outcome

A direction allowing the Administrator to enter into the Crop Deed was made on the basis that it was reasonable and justified to do so [17] because:

  • the harvest and sale of the fruit crop was unlikely if the Crop Deed was not entered into, in which case the crop would perish without commercial exploitation: [15], and
  • the interests of the competing claimants are adequately protected by the proposal that the net balance of the proceeds of the fruit crop sale after meeting costs, if any, be held on trust pending determination as to entitlement: [16].

 

A further order was made under s 447A(1) indemnifying the Administrators against personal

liability for any debts incurred under the Crop Deed.

 

Such an order was appropriate as it permitted the Administrators to make the commercial decision of what is in the best interests of the company's creditors uninfluenced by concerns of personal liability: [21].

 

Finally, orders were also made which provided for a lien over the trust fund and for a transparent

mechanism for the distribution of the proceeds of the sale agreement, subject to certain conditions: [22] and [26].

 

Relevant paragraphs of Ford

[26.030] and [26.171]

 

Tags:

Ford's Principles of Corporations Law

Smith, in the matter of In House Management Service Pty Ltd v In House Management Service Pty Ltd [2010] FCA 1401

by Emma.Gleeson 1. February 2011 10:02

Facts

For s 459C(2)(a) of the Corporations Act 2001 (Cth) to require the Court to presume that a company is insolvent as a result of its failure to comply with a statutory demand, the applicant ought to have filed an application for the winding up in insolvency of the company within three months of the company’s failure to comply with the statutory demand: [5].

 

The applicant filed such an application three months and one day from the date on which the respondent failed (as defined by s 459F) to comply with a statutory demand: [3].

 

Outcome

The Court should exercise its discretion under s 467(1)(c) of the Corporations Act 2001 (Cth) and grant the application in circumstances where:

  • the application was filed only one day beyond the date by when the Court would have been required to presume the respondent’s insolvency,
  • the respondent has not disputed the applicant’s claims, and
  • it is clear that the respondent is, in fact, insolvent: [7].

 

 

Relevant paragraphs of Ford

[27.060], [27.094] and [27.110]

Tags:

Ford's Principles of Corporations Law

Straits Resources Limited, in the matter of Straits Resources Limited [2010] FCA 1467

by Emma.Gleeson 31. January 2011 15:39

Facts

This judgment is to be read in conjunction with the judgment in Straits Resources Limited, in the matter of Straits Resources Limited [2010] FCA 1467. This was a first court hearing with respect to two schemes of arrangement under Part 5.1 of the Corporations Act. The second scheme, for the acquisition of the shares in Straits by a third company (PTT) in the event that the demerger occurs, is relevant to this judgment.

 

Outcome

Three issues were raised and considered in this judgment:

 

  • A number of employees held shares in Straits. They were not held to be a separate class of shareholders as they were to be valued under the scheme in exactly the same way as other shareholders: [17]-[19].

 

  • Deal protection provisions included an exclusivity period extending for a period of just under 8 months. The Court noted that these were framed such as to be subject to the overriding obligation not to breach directors’ fiduciary duties or otherwise be unlawful, referring to Santow J in Re Arthur Yates & Co Limited (2001) 36 ACSR 758 at [9], and the length of the period corresponded to comparable periods in other schemes: [21]-[22]). Likewise, the charging of a break fee was within the 1% guideline set out in Takeovers Panel Guidance Note 7 and evidence was before the Court that this was calculated as a result of “normal commercial negotiation” and that it was in the interests of shareholders (referring to Lindgren J in Re APN News Media Limited (2007) 62 ACSR 400 at [55]): [23]. Similar observations were made with respect to the “no due diligence” and “no talk” provisions within the scheme proposal.

 

  • The acquisition scheme is being considered by the ATO as to whether it is for the sole or dominant purpose of obtaining a tax benefit and adverse tax consequences for Straits may result. As a result Straits sought to have the meeting convened approximately two weeks after the ATO’s position is expected to be clarified to enable an announcement to be made to the ASX prior to shareholders voting on the scheme. This seemed to the Court to be appropriate, noting that the usual practice is to require ten days notice to shareholders. If the ATO’s position was not clarified in sufficient time, Straits could adjourn the meeting, make further disclosure to shareholders and a further application to the court might be required: [24]-[26].

 

Relevant paragraphs of Ford

[7.427], [19.140], [22.130], [24.071], [24.130], [24.160], [27.063], [27.065], [27,760]

 

Tags:

Ford's Principles of Corporations Law

The MAC Services Group Limited [2010] NSWSC 1474

by Emma.Gleeson 31. January 2011 10:10

Facts

MAC Services held a meeting pursuant to s 411(1) of the Corporations Act 2001 (Cth) to vote upon a resolution to effect a scheme of arrangement under Part 5.1 of the Act.

 

At the meeting, which was properly convened, a poll was called. Votes were cast but counted after the meeting was declared closed, the chairperson indicating that the result of the poll would be notified once votes were counted.

 

The overwhelming majority voted in favour of the scheme and the result was notified to the ASX later the same day.

 

The Court had to consider whether the resolution had been passed “at” the meeting.

 

Outcome

A poll properly called for need not be taken during the course of the meeting, and it was held that the poll is effectively a continuation of the meeting. The resolution was therefore passed “at” the meeting.

 

Relevant paragraphs of Ford

[7.427], [19.140], [22.130], [23.620], [24.071], [24.090], [24.130], [24.160]

 

Tags:

Ford's Principles of Corporations Law

Australian Securities and Investments Commission v Letten (No 8) [2010] FCA 1458

by Emma.Gleeson 25. January 2011 09:42

Facts

On 25 February 2010, orders were made appointing the Receivers as receivers and managers of the property of the Reef House Resort Scheme.

 

On 4 June 2010, this order was varied so that the Receivers had the power to sell the Reef House Properties subject to various conditions, including obtaining the Court’s approval of the sale.

 

On 16 November 2010, the Receivers entered into sale agreements.

 

On 30 November 2010, the Receivers filed an interlocutory process seeking the Court’s approval for the Receivers to enter into the sale agreements.

 

Outcome

On 17 December 2010, orders were made that the Receivers were justified in settling the sale agreements for the following reasons:

 

(a) The Reef House Properties are not exclusively property of the Reef House Resort Scheme.

 

(b) The interests of all creditors and other stakeholders were relevant to the exercise of the power of sale and had to be given due and proper regard.

 

(c) Even though the sale price was below the estimated market value of the Reef House Properties, pursuant to s 420A of the Corporations Act the Receivers took all reasonable care in their sale because:

·         The sale process adopted was in accordance with the Orders made by the Court on 4 June 2010. This involved the Receivers engaging experienced real estate agents to conduct the sale process and, after consultation with relevant stakeholders, accepting the agent’s advice as to how to best market and sell the Reef House Properties. The Reef House Properties were advertised for sale on the open market resulting in arm’s length dealings between the Receivers and potential purchasers.

 

·         There were difficulties with the Reef House Properties. They are located in a tourism area that suffered as a result of the global financial crisis, and were in need of significant and extensive building works to be carried out immediately.

 

Relevant paragraphs of Ford

[25.121], [25.125]

 

Tags:

Ford's Principles of Corporations Law



Disclaimer

LexisNexis, and the authors and endorsers of this blog each exclude liability for loss suffered by any person resulting in any way from the use of, or reliance on, the content of the blog. Views expressed in blog content are the opinion of the individual writer and do not represent the views of LexisNexis.



Bookmark and Share

Widget Twitter not found.

Root element is missing.X