Application by Permanent Custodians Limited (ACN 001 426 384) [2017] NSWSC 1618

Application by Permanent Custodians Limited (ACN 001 426 384) [2017] NSWSC 1618

On the assumed facts, the Trustees were justified in entering into and performing the Proposed RCD. The proposed Extraordinary Senior and Junior Bondholder Resolutions were sufficient instructions because the four-hour payment timing change could be authorised by Extraordinary Resolution and did not require a Special Quorum Resolution; the continuation of the Dexia/FMS CPI Bonds with amended terms did not amount to an exchange or substitution requiring a Special Quorum Resolution; BNY could act on the instructions of Secured Beneficiaries under the Proposed RCD; the notices to Bondholders and proposed confirmations, including irrevocable MT202 SWIFT messages, were sufficient to justify...

Jurisdiction
Australia
Judgment Date
23 November 2017
Procedural Posture
Application for Judicial Advice Under Trustee Act 1925, S 63 / Further Amended Summons Seeking Judicial Advice About Entry Into and Performance of a Proposed Refinancing Coordination Deed
Outcome
Judicial advice given as sought in the Further Amended Summons.
Legal Topics
['judicial Advice' 'trustee Act 1925, S 63' 'trustees for Bondholders' 'debt Facility Refinancing' 'bondholder Resolutions' 'release of Security' 'finally Paid']
['equity' 'trusts' 'finance'] ['judicial Advice' 'trustee Act 1925, S 63' 'trustees for Bondholders' 'debt Facility Refinancing' 'bondholder Resolutions' 'release of Security' 'finally Paid']

Case Brief

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Procedural Posture

Application for Judicial Advice Under Trustee Act 1925, S 63 / Further Amended Summons Seeking Judicial Advice About Entry Into and Performance of a Proposed Refinancing Coordination Deed

Legal Issues

  1. 1 ['Whether the Trustees would be justified in relying on Extraordinary Senior Bondholder and Extraordinary Junior Bondholder Resolutions as instructions to enter into and perform the proposed NSW Rolling Stock PPP Refinancing Coordination Deed.' 'Whether a Special Quorum Senior Bondholder Resolution was required because payment under the Proposed RCD would occur at 4pm rather than 12 noon or because Dexia and FMS would continue as Senior Bondholders with amended terms.' 'Whether BNY as Security Trustee would be justified in entering into and performing the Proposed RCD on the basis of instructions from Secured Beneficiaries.' 'Whether the proposed notification, confirmation and payment arrangements were sufficient for the Trustees to treat Secured Money as Finally Paid and release security under the Global Security Deed.' 'Whether the arrangements involving Dexia and FMS complied with clause 7.4(d) of the Senior Inter-creditor Deed requiring refinancing of all Debt.']

Ratio Decidendi

On the assumed facts, the Trustees were justified in entering into and performing the Proposed RCD. The proposed Extraordinary Senior and Junior Bondholder Resolutions were sufficient instructions because the four-hour payment timing change could be authorised by Extraordinary Resolution and did not require a Special Quorum Resolution; the continuation of the Dexia/FMS CPI Bonds with amended terms did not amount to an exchange or substitution requiring a Special Quorum Resolution; BNY could act on the instructions of Secured Beneficiaries under the Proposed RCD; the notices to Bondholders and proposed confirmations, including irrevocable MT202 SWIFT messages, were sufficient to justify...

Court Disposition

Judicial advice given as sought in the Further Amended Summons.

Orders

  • ['The first plaintiff would be justified in relying on an Extraordinary Senior Bondholder Resolution as an instruction by Senior Bondholders to enter into, and perform its obligations and exercise its rights under, the proposed NSW Rolling Stock PPP Refinancing Coordination Deed in, or substantially in, the form...