In the matter of Jabiru Satellite Limited (in liq) and NewSat Limited (in liq) [2022] NSWSC 459

In the matter of Jabiru Satellite Limited (in liq) and NewSat Limited (in liq) [2022] NSWSC 459

Appointment of special purpose liquidator was refused because the sole identified purpose was to permit conduct of proceedings under a funding arrangement with a funding fee of at least 70% of the net proceeds, uncapped, payable to a funder with minimal assets, and other alternatives were not properly canvassed; appointment on such terms was not shown to be just or beneficial, nor of sufficient utility to the external administration or creditors.

Parties
First Plaintiff: Rockgold Holdings Pty Ltd; Second Plaintiff: Ever Tycoon Limited; First Defendant: Jabiru Satellite Limited (in liquidation); Second Defendant: NewSat Limited (in liquidation); Third Defendant: Glen Ian Livingston (liquidator of Jabiru Satellite Limited and NewSat Limited)
Jurisdiction
Australia
Judgment Date
14 April 2022
Procedural Posture
Corporations Winding Up Application / Application for Appointment of Special Purpose Liquidator, Final Determination
Outcome
Plaintiffs' Originating Process dismissed.
Legal Topics
Appointment of Special Purpose Liquidator, Litigation Funding, Creditor Claims, Distribution of Proceeds, Liquidator Independence
Corporations Law Insolvency Law Appointment of Special Purpose Liquidator Litigation Funding Creditor Claims Distribution of Proceeds Liquidator Independence

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Parties

Rockgold Holdings Pty Ltd

First Plaintiff

Ever Tycoon Limited

Second Plaintiff

Jabiru Satellite Limited (in liquidation)

First Defendant

NewSat Limited (in liquidation)

Second Defendant

Glen Ian Livingston (liquidator of Jabiru Satellite Limited and NewSat Limited)

Third Defendant

Procedural Posture

Corporations Winding Up Application / Application for Appointment of Special Purpose Liquidator, Final Determination

Legal Issues

  1. 1 Whether a special purpose liquidator should be appointed to conduct specified proceedings
  2. 2 Whether the proposed funding agreement on terms of a 70% funding fee is in the interests of creditors
  3. 3 Utility and justice of the appointment to the external administration

Ratio Decidendi

Appointment of special purpose liquidator was refused because the sole identified purpose was to permit conduct of proceedings under a funding arrangement with a funding fee of at least 70% of the net proceeds, uncapped, payable to a funder with minimal assets, and other alternatives were not properly canvassed; appointment on such terms was not shown to be just or beneficial, nor of sufficient utility to the external administration or creditors.

Court Disposition

Plaintiffs' Originating Process dismissed.

Orders

  • Plaintiffs to bring in a proposed suppression and non-publication order within 7 days.
  • Liberty to apply within 7 days reserved to interested persons as to costs.