Parbery; in the matter of Lehman Brothers Australia Limited (in liq) [2011] FCA 1449

Parbery; in the matter of Lehman Brothers Australia Limited (in liq) [2011] FCA 1449

The Court refused to send the proposed letter because it would effectively request Judge Peck to lift or not extend the stay in the US LBA Notes Proceeding, potentially pre-empting a matter before the United States court and impinging on comity; the application was ex parte and the Court had not heard from directly affected parties such as LBSF and BNY; no communication protocol had been established; Judge Peck was already aware of the conflicting English and United States authorities; and there was no proceeding before the Federal Court directly concerning the validity and effect of the flip clause.

Jurisdiction
Australia
Judgment Date
15 December 2011
Procedural Posture
Ex Parte Application Under Articles 25 and 27 of the Model Law on Cross Border Insolvency as Given Force by the Cross Border Insolvency Act 2008 (cth) for Communication With a United States Bankruptcy Court / Judgment on Application
Outcome
Application dismissed otherwise than as stated in the reasons; the Court declined to send the requested letter but proposed a limited communication to Judge Peck.
Legal Topics
['court to Court Communication' 'judicial Comity' 'letter of Request' 'model Law on Cross Border Insolvency Articles 25 and 27' 'cross Border Insolvency Protocol' 'conflicting Foreign Court Decisions Concerning Priority to Collateral']
['practice and Procedure' 'cross Border Insolvency'] ['court to Court Communication' 'judicial Comity' 'letter of Request' 'model Law on Cross Border Insolvency Articles 25 and 27' 'cross Border Insolvency Protocol' 'conflicting Foreign Court Decisions Concerning Priority to Collateral']

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Procedural Posture

Ex Parte Application Under Articles 25 and 27 of the Model Law on Cross Border Insolvency as Given Force by the Cross Border Insolvency Act 2008 (cth) for Communication With a United States Bankruptcy Court / Judgment on Application

Legal Issues

  1. 1 ['Whether the Federal Court should communicate directly with or send a letter of request to Judge Peck of the United States Bankruptcy Court for the Southern District of New York in the terms sought by the Liquidators.' 'Whether the proposed communication would be consistent with judicial comity and the appropriate limits of court-to-court cooperation in cross-border insolvency.' 'Whether the ex parte nature of the application, absence of a protocol, and absence of directly affected parties made the requested communication inappropriate.']

Ratio Decidendi

The Court refused to send the proposed letter because it would effectively request Judge Peck to lift or not extend the stay in the US LBA Notes Proceeding, potentially pre-empting a matter before the United States court and impinging on comity; the application was ex parte and the Court had not heard from directly affected parties such as LBSF and BNY; no communication protocol had been established; Judge Peck was already aware of the conflicting English and United States authorities; and there was no proceeding before the Federal Court directly concerning the validity and effect of the flip clause.

Court Disposition

Application dismissed otherwise than as stated in the reasons; the Court declined to send the requested letter but proposed a limited communication to Judge Peck.

Orders

  • ['Otherwise than as stated in the reasons for judgment delivered on 15 December 2011, the application be dismissed.']