Senvion GmbH, in the matter of Senvion GmbH (No 2) [2019] FCA 1732

Senvion GmbH, in the matter of Senvion GmbH (No 2) [2019] FCA 1732

The German Formal Self-Administration Proceeding is recognised as a foreign main proceeding under Article 17 of the Model Law and the Cross-Border Insolvency Act; Senvion GmbH is the proper foreign representative; the appropriate stay is that under Part 5.3A of the Corporations Act (analogous to voluntary administration); the Court has no power to modify the stay at recognition; leave to proceed with the Supreme Court of Victoria proceeding is granted to the Pacific Hydro Entities under s 440D, due to the essentially proprietary nature of the claim and significant potential disadvantage otherwise.

Jurisdiction
Australia
Judgment Date
22 October 2019
Procedural Posture
Cross Border Insolvency Recognition and Interlocutory Application / Judgment on Recognition and Application for Leave to Proceed
Outcome
Recognition granted; leave to proceed granted
Legal Topics
['cross Border Insolvency' 'recognition of Foreign Proceedings' 'stay of Proceedings' 'leave to Proceed Under S 440 D Corporations Act']
['bankruptcy and Insolvency' 'corporations'] ['cross Border Insolvency' 'recognition of Foreign Proceedings' 'stay of Proceedings' 'leave to Proceed Under S 440 D Corporations Act']

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Procedural Posture

Cross Border Insolvency Recognition and Interlocutory Application / Judgment on Recognition and Application for Leave to Proceed

Legal Issues

  1. 1 ['Whether the German insolvency proceeding should be recognised as a foreign proceeding and foreign main proceeding under the Model Law and CBI Act' 'Whether Senvion GmbH should be recognised as foreign representative' 'Which Australian insolvency regime is most analogous to the German proceeding for the purposes of the stay under Article 20 of the Model Law' 'Whether the Court may modify the scope of the stay under Article 20(2)' 'Whether leave should be granted to the Pacific Hydro Entities to continue the Supreme Court of Victoria proceeding']

Ratio Decidendi

The German Formal Self-Administration Proceeding is recognised as a foreign main proceeding under Article 17 of the Model Law and the Cross-Border Insolvency Act; Senvion GmbH is the proper foreign representative; the appropriate stay is that under Part 5.3A of the Corporations Act (analogous to voluntary administration); the Court has no power to modify the stay at recognition; leave to proceed with the Supreme Court of Victoria proceeding is granted to the Pacific Hydro Entities under s 440D, due to the essentially proprietary nature of the claim and significant potential disadvantage otherwise.

Court Disposition

Recognition granted; leave to proceed granted

Orders

  • ['The German insolvency proceeding is recognised as a foreign proceeding and as a foreign main proceeding under Article 17 of the Model Law and the CBI Act.' 'Senvion GmbH is recognised as the foreign representative of the proceeding.' 'For stay and suspension purposes, Part 5.3A of the Corporations Act is to apply...