In the matter of Le Meilleur Pty Ltd (subject to Deed of Company Arrangement); Le Meilleur Pty Ltd (subject to Deed of Company Arrangement) & Ors v Jin Heung Mutual Savings Bank Co Ltd & Anor [2011] NSWSC 1115

In the matter of Le Meilleur Pty Ltd (subject to Deed of Company Arrangement); Le Meilleur Pty Ltd (subject to Deed of Company Arrangement) & Ors v Jin Heung Mutual Savings Bank Co Ltd & Anor [2011] NSWSC 1115

The Deed of Company Arrangement executed on 18 August 2010 was not a binding instrument within the meaning of s 444B(6) or s 444D of the Corporations Act 2001 (Cth) because it did not conform with the proposal statement tabled and resolved at the second creditors' meeting; accordingly, Jin Heung was not bound by the Deed, as there was no valid vote in favour by its proxy, and the company's administration was deemed terminated by s 446A, placing it in creditors' voluntary winding up.

Parties
First Plaintiff: Le Meilleur Pty Ltd (subject to Deed of Company Arrangement); Second Plaintiff: Kenneth Michael Whittingham; Third Plaintiff: Atle Crowe-Maxwell; First Defendant: Jin Heung Mutual Savings Bank Co Ltd; Second Defendant: NH Capital Co Ltd; Intervening Creditor: Port Stephens Council; Intervening Creditor: Greg Ramsey; Intervening Creditor: Chief Commissioner of State Revenue; Intervening Creditor: Community Association of DP 270021
Jurisdiction
Australia
Judgment Date
15 September 2011
Procedural Posture
Corporations – Originating Process and Interlocutory Relief / Final Judgment After Trial
Outcome
Plaintiffs' originating process dismissed. Declarations made regarding invalidity of the Deed of Company Arrangement and operation of s 446A.
Legal Topics
Deed of Company Arrangement, Secured Creditors' Rights, Creditors' Meetings, Corporations Voluntary Administration, Discharges of Mortgage, Estoppel and Acquiescence
Corporations Law Insolvency Deed of Company Arrangement Secured Creditors' Rights Creditors' Meetings Corporations Voluntary Administration Discharges of Mortgage Estoppel and Acquiescence

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 22 Party arguments 2 Amounts and remedies 12
Sign in to unlock

Parties

Le Meilleur Pty Ltd (subject to Deed of Company Arrangement)

First Plaintiff

Kenneth Michael Whittingham

Second Plaintiff

Atle Crowe-Maxwell

Third Plaintiff

Jin Heung Mutual Savings Bank Co Ltd

First Defendant

NH Capital Co Ltd

Second Defendant

Port Stephens Council

Intervening Creditor

Greg Ramsey

Intervening Creditor

Chief Commissioner of State Revenue

Intervening Creditor

Community Association of DP 270021

Intervening Creditor

Procedural Posture

Corporations – Originating Process and Interlocutory Relief / Final Judgment After Trial

Legal Issues

  1. 1 Whether the Deed of Company Arrangement executed on 18 August 2010 is a binding instrument within s 444B(6) of the Corporations Act 2001 (Cth)
  2. 2 Whether Jin Heung is bound by the Deed of Company Arrangement and voted in favour of it
  3. 3 Whether relief should be granted under Corporations Act provisions to compel discharges of mortgage to allow sale contracts to complete

Ratio Decidendi

The Deed of Company Arrangement executed on 18 August 2010 was not a binding instrument within the meaning of s 444B(6) or s 444D of the Corporations Act 2001 (Cth) because it did not conform with the proposal statement tabled and resolved at the second creditors' meeting; accordingly, Jin Heung was not bound by the Deed, as there was no valid vote in favour by its proxy, and the company's administration was deemed terminated by s 446A, placing it in creditors' voluntary winding up.

Court Disposition

Plaintiffs' originating process dismissed. Declarations made regarding invalidity of the Deed of Company Arrangement and operation of s 446A.

Orders

  • Order dismissing the originating process filed 2 February 2011.
  • Declare the 18 August 2010 Deed of Company Arrangement not a deed of company arrangement within s 444B(6) and s 444D of the Corporations Act 2001 (Cth).