Debis Financial Services (Aust) Pty Ltd v Allied Bellambi Collieries Pty Ltd [1999] NSWSC 936

Debis Financial Services (Aust) Pty Ltd v Allied Bellambi Collieries Pty Ltd [1999] NSWSC 936

The Court was not prepared to hold that the machines were not in the possession of the first and/or second defendants, because they were on premises controlled by those defendants and access could be denied. Given that less than 48 hours of the administration remained, the administrator was engaged in attempting to bring the deed of company arrangement and sale agreement to fruition, the plaintiff could pursue its rights when the administration ended, and an undertaking had been offered on terms, leave under s 440C was refused at that stage.

Jurisdiction
Australia
Judgment Date
13 September 1999
Procedural Posture
Application for Leave Under Section 440 C of the Corporations Law / Application for Leave to Take Possession of Property During Voluntary Administration
Outcome
Application for leave to take possession refused.
Legal Topics
['voluntary Administration' 'protection of Company Property' 'secured Creditor' 'leave to Take Possession of Property' 'meaning of "in the Possession Of"']
['corporations Law'] ['voluntary Administration' 'protection of Company Property' 'secured Creditor' 'leave to Take Possession of Property' 'meaning of "in the Possession Of"']

Case Brief

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Procedural Posture

Application for Leave Under Section 440 C of the Corporations Law / Application for Leave to Take Possession of Property During Voluntary Administration

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave under s 440C of the Corporations Law to take possession of Un-a-Haulers located in the Bellambi West colliery during the administration of the first and second defendants.' 'Whether the machines were "in the possession of" the first defendant and/or the second defendant for the purposes of s 440C.']

Ratio Decidendi

The Court was not prepared to hold that the machines were not in the possession of the first and/or second defendants, because they were on premises controlled by those defendants and access could be denied. Given that less than 48 hours of the administration remained, the administrator was engaged in attempting to bring the deed of company arrangement and sale agreement to fruition, the plaintiff could pursue its rights when the administration ended, and an undertaking had been offered on terms, leave under s 440C was refused at that stage.

Court Disposition

Application for leave to take possession refused.

Orders

  • ['Leave under s 440C to take possession of the machines refused at this stage.' 'Proceedings stood over till 15 September 1999 before the Duty Judge.' 'Costs of the application for leave under section 440C in relation to the machines reserved.']