In the matter of Bluenergy Group Limited (subject to a Deed of Company Arrangement) (administrator appointed) [2015] NSWSC 977

In the matter of Bluenergy Group Limited (subject to a Deed of Company Arrangement) (administrator appointed) [2015] NSWSC 977

The debt owing by the Company to Keybridge was released by cl 3.2 of the DOCA in conjunction with s 444D(1) of the Corporations Act, and Keybridge is not a creditor in the Second Administration. However, s 444D(2) and cl 3.1(b) of the DOCA preserved Keybridge's rights to realise or otherwise deal with its security interest only to the extent of secured property existing at the date of the DOCA, not future acquired property. The Second Administration should be terminated under s 447A as its continuance would frustrate the purposes of Part 5.3A and serves no utility when Keybridge is not a creditor and the only potential creditor (the Deed Administrators) oppose its continuance. Leave...

Jurisdiction
Australia
Judgment Date
21 July 2015
Procedural Posture
Corporations List Application / Principal Judgment Determination After Contested Hearing
Outcome
Declarations granted that Keybridge's secured debt has been released and it is not a creditor in the Second Administration; Second Administration to be terminated; leave granted to transfer Excluded Assets to Keybridge or sell and account for proceeds.
Legal Topics
['deed of Company Arrangement (doca)' 'secured Creditors' 'voluntary Administration' 'security Interests' 'section 444 D Corporations Act' 'section 447 a Corporations Act' 'section 436 C Corporations Act' 'section 442 C Corporations Act']
['corporations Law' 'insolvency'] ['deed of Company Arrangement (doca)' 'secured Creditors' 'voluntary Administration' 'security Interests' 'section 444 D Corporations Act' 'section 447 a Corporations Act' 'section 436 C Corporations Act' 'section 442 C Corporations Act']

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Procedural Posture

Corporations List Application / Principal Judgment Determination After Contested Hearing

Legal Issues

  1. 1 ['Whether the debt owed to secured creditor Keybridge was released by cl 3.2 of the DOCA and s 444D(1) of the Corporations Act 2001 (Cth)' "Whether Keybridge's security interest was preserved under cl 3.1(b) of the DOCA and s 444D(2) of the Corporations Act 2001 (Cth)" 'Whether Keybridge was a creditor entitled to appoint an administrator in the Second Administration' 'Whether the Second Administration should be terminated under s 447A of the Corporations Act 2001 (Cth)' 'Whether leave should be granted under s 442C of the Corporations Act 2001 (Cth) to transfer Excluded Assets to Keybridge']

Ratio Decidendi

The debt owing by the Company to Keybridge was released by cl 3.2 of the DOCA in conjunction with s 444D(1) of the Corporations Act, and Keybridge is not a creditor in the Second Administration. However, s 444D(2) and cl 3.1(b) of the DOCA preserved Keybridge's rights to realise or otherwise deal with its security interest only to the extent of secured property existing at the date of the DOCA, not future acquired property. The Second Administration should be terminated under s 447A as its continuance would frustrate the purposes of Part 5.3A and serves no utility when Keybridge is not a creditor and the only potential creditor (the Deed Administrators) oppose its continuance. Leave...

Court Disposition

Declarations granted that Keybridge's secured debt has been released and it is not a creditor in the Second Administration; Second Administration to be terminated; leave granted to transfer Excluded Assets to Keybridge or sell and account for proceeds.

Orders

  • ["Declarations to be made that Keybridge's debt secured by its charge has been released by cl 3.2 of the DOCA and that Keybridge is not a creditor in the Second Administration." 'Leave granted to the Plaintiffs to transfer Excluded Assets (as defined) to Keybridge, or otherwise sell those assets and account to...