Global Television v Sportsvision Australia (in liq.) & 2 Ors [2000] NSWSC 960

Global Television v Sportsvision Australia (in liq.) & 2 Ors [2000] NSWSC 960

The guarantee and indemnity given by Optus Vision to Global Television survives the liquidator’s disclaimer of the OB Agreement. The statutory regime (s568D(1) of the Corporations Law) preserves third party rights and liabilities except as necessary to release the company and its property, and the express terms of the guarantee do not preclude liability post-disclaimer. The OB Agreement was an 'unprofitable contract', allowing effective disclaimer by the liquidator without court leave. No grossly disproportionate prejudice is suffered to justify setting aside the disclaimer.

Jurisdiction
Australia
Judgment Date
16 October 2000
Procedural Posture
Corporations/equity Proceedings / Judgment at First Instance in Supreme Court of New South Wales, Equity Division
Outcome
Guarantee survives disclaimer; disclaimer effective as OB Agreement was an unprofitable contract; challenge to disclaimer fails.
Legal Topics
['effect of Disclaimer by Liquidator' 'guarantee and Indemnity' 'unprofitable Contract' 'third Party Rights Following Disclaimer']
['corporations Law' 'insolvency' 'contract Law'] ['effect of Disclaimer by Liquidator' 'guarantee and Indemnity' 'unprofitable Contract' 'third Party Rights Following Disclaimer']

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Procedural Posture

Corporations/equity Proceedings / Judgment at First Instance in Supreme Court of New South Wales, Equity Division

Legal Issues

  1. 1 ["Does a guarantee and indemnity survive a liquidator's disclaimer of the guaranteed contract under s568D(1) of the Corporations Law?" "Was the contract in question an 'unprofitable contract' under s568(1A) of the Corporations Law, such that disclaimer was effective without leave?" 'If the guarantee does not survive, would the disclaimer cause grossly disproportionate prejudice thereby necessitating its setting aside under s568B(3)?']

Ratio Decidendi

The guarantee and indemnity given by Optus Vision to Global Television survives the liquidator’s disclaimer of the OB Agreement. The statutory regime (s568D(1) of the Corporations Law) preserves third party rights and liabilities except as necessary to release the company and its property, and the express terms of the guarantee do not preclude liability post-disclaimer. The OB Agreement was an 'unprofitable contract', allowing effective disclaimer by the liquidator without court leave. No grossly disproportionate prejudice is suffered to justify setting aside the disclaimer.

Court Disposition

Guarantee survives disclaimer; disclaimer effective as OB Agreement was an unprofitable contract; challenge to disclaimer fails.

Orders

  • ['Parties to submit orders giving effect to judgment within fourteen days;' 'Subject to further hearing, vesting order under s568F of Corporations Law may be made in favour of Optus Vision;' 'Costs to follow the event, with Optus Vision to pay costs, subject to further submissions.']