Angus Carnegie Gordon In the Matter of Macquarie Towns Partners Real Estate Pty Ltd (Subject to Deed of Company Arrangement) [2011] NSWSC 806

Angus Carnegie Gordon In the Matter of Macquarie Towns Partners Real Estate Pty Ltd (Subject to Deed of Company Arrangement) [2011] NSWSC 806

The circumstances warranted an order modifying the operation of Pt 5.3A because the Deed had terminated under its own provisions without the deed administrator or creditors being aware, an order would be in the interests of creditors by allowing them to consider the Deed in light of Mr Hardaker's apparent default, and it would also allow Mr Hardaker to propose variations for creditors' consideration.

Jurisdiction
Australia
Judgment Date
27 June 2011
Procedural Posture
Application Under S 447 A(1) of the Corporations Act 2001 (cth) to Modify the Operation of Pt 5.3 a in Relation to a Deed of Company Arrangement / Ex Tempore Principal Judgment on Originating Process
Outcome
Order made modifying the operation of Pt 5.3A so that the Deed did not terminate on the original Termination Date by reason only of cl 17.1 and would not terminate until 11 January 2012 unless otherwise terminated under the Deed, the Act, or an order made under the Act.
Legal Topics
['deed of Company Arrangement' 'voluntary Administration' 'modification of Pt 5.3 A' 'termination of Deed' 'corporations Act 2001 (cth) S 447 A(1)']
['corporations Law' 'insolvency Law'] ['deed of Company Arrangement' 'voluntary Administration' 'modification of Pt 5.3 A' 'termination of Deed' 'corporations Act 2001 (cth) S 447 A(1)']

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Procedural Posture

Application Under S 447 A(1) of the Corporations Act 2001 (cth) to Modify the Operation of Pt 5.3 a in Relation to a Deed of Company Arrangement / Ex Tempore Principal Judgment on Originating Process

Legal Issues

  1. 1 ['Whether the Court should make an order under s 447A(1) modifying the operation of Pt 5.3A so that the Deed of Company Arrangement did not terminate by reason of the Termination Date having been reached.' "Whether the circumstances in which the deed administrator and creditors were unaware of the Deed's termination warranted modification of the operation of Pt 5.3A."]

Ratio Decidendi

The circumstances warranted an order modifying the operation of Pt 5.3A because the Deed had terminated under its own provisions without the deed administrator or creditors being aware, an order would be in the interests of creditors by allowing them to consider the Deed in light of Mr Hardaker's apparent default, and it would also allow Mr Hardaker to propose variations for creditors' consideration.

Court Disposition

Order made modifying the operation of Pt 5.3A so that the Deed did not terminate on the original Termination Date by reason only of cl 17.1 and would not terminate until 11 January 2012 unless otherwise terminated under the Deed, the Act, or an order made under the Act.

Orders

  • ['Pursuant to s 447A(1) of the Corporations Act 2001 (Cth)("the Act") the Court orders that Pt 5.3A of the Act shall apply to the Deed of Company Arrangement made on 11 January 2010 between Macquarie Towns Partners Real Estate Pty Limited (Administrator Appointed) ACN 103 305 371, Kenneth Reginald Hardaker, Amelia...