In the matter of Octaviar Limited (in liq); In the matter of Octaviar Administration Pty Limited (in liq) [2015] NSWSC 1621

In the matter of Octaviar Limited (in liq); In the matter of Octaviar Administration Pty Limited (in liq) [2015] NSWSC 1621

In the circumstances, the SPL is justified in retaining funds advanced by general purpose liquidators, in purporting to terminate the Fortress funding deed (or treating as terminated), and applying to expand powers to represent OCV’s interests in the OA winding up; further, approval to enter the funding deed by OA liquidators was not shown to be 'necessary' for OA’s winding up absent assignment and benefit, so approval application is to be held over pending further facts.

Jurisdiction
Australia
Judgment Date
03 November 2015
Procedural Posture
Corporate Insolvency – Applications for Judicial Advice and Approval of Liquidator Actions / Post Liquidator Appointment, Multiple Applications: Application for Judicial Advice (directions), Application for Approval of Funding Deed, Application to Stand Over Approval
Outcome
In proceedings 2011/397200, judicial advice (directions) given; in proceedings 2012/89484, application stood over to a date to be fixed.
Legal Topics
['winding Up' 'liquidator Powers' 'funding Agreements' 'court Approval' 'liquidator Disqualification']
['corporations' 'insolvency' 'equity'] ['winding Up' 'liquidator Powers' 'funding Agreements' 'court Approval' 'liquidator Disqualification']

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Procedural Posture

Corporate Insolvency – Applications for Judicial Advice and Approval of Liquidator Actions / Post Liquidator Appointment, Multiple Applications: Application for Judicial Advice (directions), Application for Approval of Funding Deed, Application to Stand Over Approval

Legal Issues

  1. 1 ['Whether special purpose liquidator justified in retaining funds advanced by general purpose liquidators' 'Whether Fortress funding deed between OA and SPL should be treated as terminated' "Whether SPL justified in seeking expanded powers to represent OCV's interests in OA winding up" 'Whether entry into deed by OA liquidators was necessary for winding up OA under Corporations Act, s 477(2)(m)' 'Whether liquidators of OA are disqualified under Corporations Act, s 532(2)(c)(ii)']

Ratio Decidendi

In the circumstances, the SPL is justified in retaining funds advanced by general purpose liquidators, in purporting to terminate the Fortress funding deed (or treating as terminated), and applying to expand powers to represent OCV’s interests in the OA winding up; further, approval to enter the funding deed by OA liquidators was not shown to be 'necessary' for OA’s winding up absent assignment and benefit, so approval application is to be held over pending further facts.

Court Disposition

In proceedings 2011/397200, judicial advice (directions) given; in proceedings 2012/89484, application stood over to a date to be fixed.

Orders

  • ['SPL (David John Kerr) justified in purporting to terminate Fortress funding deed or treating as already terminated.' 'SPL justified after 1 December 2015 to apply to expand his powers as SPL to represent OCV’s interests in OA winding up and to appeal rejection of OCV’s proof of debt.' 'SPL justified in dealing...