TiVo, Inc v Vivo International Corporation Pty Ltd (subject to deed of company arrangement) [2014] FCA 789

TiVo, Inc v Vivo International Corporation Pty Ltd (subject to deed of company arrangement) [2014] FCA 789

The DOCA should be terminated and the company wound up because there were material non-disclosures or lack of essential information in the administration process, creating a real risk creditors were misled and that proper assessment could not be made; in this context, the public interest and interests of creditors require an inquiry by an independent liquidator. The creditors' votes in favour of the DOCA are not decisive given the particular circumstances and the concerns identified.

Jurisdiction
Australia
Judgment Date
29 July 2014
Procedural Posture
Corporations – Application to Terminate Deed of Company Arrangement and for Winding Up / Judgment After Hearing on Application to Terminate DOCA and Wind Up Company
Outcome
DOCA terminated. Company to be wound up. Orders for parties to make submissions on appointment of liquidator and costs.
Legal Topics
['deed of Company Arrangement (doca)' 'termination of Doca' 'liquidation' 'corporate Governance' 'administration of Insolvent Company']
['corporations Law' 'insolvency'] ['deed of Company Arrangement (doca)' 'termination of Doca' 'liquidation' 'corporate Governance' 'administration of Insolvent Company']

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Procedural Posture

Corporations – Application to Terminate Deed of Company Arrangement and for Winding Up / Judgment After Hearing on Application to Terminate DOCA and Wind Up Company

Legal Issues

  1. 1 ['Whether the Deed of Company Arrangement (DOCA) for Vivo International Corporation Pty Ltd should be terminated under s 445D(1)(f) or (g) of the Corporations Act 2001 (Cth)' 'Whether company should be wound up under the Corporations Act 2001 (Cth)' 'Whether non-disclosures and lack of essential information in administration support termination of the DOCA' 'Whether it is in the interests of creditors and/or the public interest to terminate the DOCA']

Ratio Decidendi

The DOCA should be terminated and the company wound up because there were material non-disclosures or lack of essential information in the administration process, creating a real risk creditors were misled and that proper assessment could not be made; in this context, the public interest and interests of creditors require an inquiry by an independent liquidator. The creditors' votes in favour of the DOCA are not decisive given the particular circumstances and the concerns identified.

Court Disposition

DOCA terminated. Company to be wound up. Orders for parties to make submissions on appointment of liquidator and costs.

Orders

  • ['On or before 12 noon on 31 July each party is to file and serve a short submission limited to 2 pages directed to who should be appointed liquidator and whether that person consents to being appointed, the question of costs and orders to give effect to these reasons for judgment.' 'The proceeding be adjourned...