In the matter of Cook Cove Pty Ltd (admins apptd) and Boyd Cook Cove Finance Corporation Pty Ltd (admins apptd) [2009] NSWSC 620

In the matter of Cook Cove Pty Ltd (admins apptd) and Boyd Cook Cove Finance Corporation Pty Ltd (admins apptd) [2009] NSWSC 620

The s 447A(1) order was appropriate because the proposed limitation applied only to carefully defined Fixed Fee Contracts for Post Appointment Work and Westpac's Funding Indemnity Agreement, the contract form disclosed the limitation, the arrangements were supported by the Administrators' evidence as being in the best interests of creditors and likely to maximise the companies' chances of survival, pre-appointment creditors would be paid, secured creditors consented, and no creditor would be disadvantaged by confining the Administrators' liability to the property available for indemnity under s 443D.

Jurisdiction
Australia
Judgment Date
02 July 2009
Procedural Posture
Corporations; Voluntary Administration Application Under S 447 A(1) of the Corporations Act 2001 (cth) / Originating Process Filed in Court and Made Returnable Instanter
Outcome
Order made under s 447A modifying s 443A to limit administrators' liability for specified class of contracts; confidentiality order concerning evidence.
Legal Topics
['voluntary Administration' "administrators' Liability for Post Appointment Debts" 'modification of Part 5.3 a Under S 447 A' "administrators' Indemnity" 'post Appointment Contracts']
['corporations' 'insolvency' 'equity'] ['voluntary Administration' "administrators' Liability for Post Appointment Debts" 'modification of Part 5.3 a Under S 447 A' "administrators' Indemnity" 'post Appointment Contracts']

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Procedural Posture

Corporations; Voluntary Administration Application Under S 447 A(1) of the Corporations Act 2001 (cth) / Originating Process Filed in Court and Made Returnable Instanter

Legal Issues

  1. 1 ["Whether an order should be made under s 447A(1) modifying the operation of Part 5.3A, principally s 443A, to limit the Administrators' personal liability for specified post-appointment contracts." "Whether limiting the Administrators' liability to the property of Cook Cove available for indemnity under s 443D was appropriate where the proposed arrangements were intended to facilitate Westpac's exercise of Cure Rights, payment of pre-appointment creditors, and completion of Post Appointment Work." "Whether creditors or proposed contractors would be prejudiced by the limitation of liability, including in light of RSG's apparent opposition."]

Ratio Decidendi

The s 447A(1) order was appropriate because the proposed limitation applied only to carefully defined Fixed Fee Contracts for Post Appointment Work and Westpac's Funding Indemnity Agreement, the contract form disclosed the limitation, the arrangements were supported by the Administrators' evidence as being in the best interests of creditors and likely to maximise the companies' chances of survival, pre-appointment creditors would be paid, secured creditors consented, and no creditor would be disadvantaged by confining the Administrators' liability to the property available for indemnity under s 443D.

Court Disposition

Order made under s 447A modifying s 443A to limit administrators' liability for specified class of contracts; confidentiality order concerning evidence.

Orders

  • ['Pursuant to s 447A(1) of the Corporations Act 2001 (Cth), any liability of the Third Plaintiffs as administrators of the First Plaintiff to any Contractor in respect of any Fixed Fee Contract made in respect of any Post Appointment Work and to Westpac Banking Corporation pursuant to the Funding Indemnity Agreement...