Berjaya Group (Aust) Pty Ltd v Ariff [2007] NSWSC 1049

Berjaya Group (Aust) Pty Ltd v Ariff [2007] NSWSC 1049

Section 445C(c) had not operated to terminate the deeds because the court could not conclude that the specified circumstance in clause 30.1(c), payment to all Admitted Creditors of the Dividend, had arisen. Deed Fund Number 1 might still be augmented by franchisee recoveries, superior claims including the deed administrator's remuneration were unquantified, and the Westpoint proof issue meant the relevant Admitted Creditors had not been finally identified.

Jurisdiction
Australia
Judgment Date
19 September 2007
Procedural Posture
Corporations List Proceedings Concerning Voluntary Administration and Deeds of Company Arrangement / Preliminary Question Whether the Deeds of Company Arrangement Had Already Terminated by Operation of S.445 C(c) of the Corporations Act 2001 (cth)
Outcome
The court noted that s.445C(c) had not operated to terminate the deeds of company arrangement and listed the proceedings for directions; costs were reserved.
Legal Topics
['voluntary Administration' 'deed of Company Arrangement' 'termination of Deed of Company Arrangement' 'construction of Deed Provisions' 'deed Administrator Remuneration and Indemnity']
['corporations Law' 'insolvency'] ['voluntary Administration' 'deed of Company Arrangement' 'termination of Deed of Company Arrangement' 'construction of Deed Provisions' 'deed Administrator Remuneration and Indemnity']

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Procedural Posture

Corporations List Proceedings Concerning Voluntary Administration and Deeds of Company Arrangement / Preliminary Question Whether the Deeds of Company Arrangement Had Already Terminated by Operation of S.445 C(c) of the Corporations Act 2001 (cth)

Legal Issues

  1. 1 ['Whether s.445C(c) of the Corporations Act 2001 (Cth) had operated to terminate the deeds of company arrangement.' 'Whether the circumstances specified in clause 30.1(c) of the CCA deed, namely payment to all Admitted Creditors of the Dividend, existed.' 'Whether non-payment to Deed Fund Number 1 Creditors could nevertheless amount to payment of the Dividend if creditors were entitled to nothing after superior claims.']

Ratio Decidendi

Section 445C(c) had not operated to terminate the deeds because the court could not conclude that the specified circumstance in clause 30.1(c), payment to all Admitted Creditors of the Dividend, had arisen. Deed Fund Number 1 might still be augmented by franchisee recoveries, superior claims including the deed administrator's remuneration were unquantified, and the Westpoint proof issue meant the relevant Admitted Creditors had not been finally identified.

Court Disposition

The court noted that s.445C(c) had not operated to terminate the deeds of company arrangement and listed the proceedings for directions; costs were reserved.

Orders

  • ['Note that s.445C(c) has not operated to terminate deeds of company arrangement.' 'List for directions before Barrett J at 10am on 24 September 2007.' 'Costs of the hearing on 13 September 2007 reserved.']