Lo Pilato v Eden [2002] NSWSC 832

Lo Pilato v Eden [2002] NSWSC 832

The deed of company arrangement terminated under s.445C due to non-fulfillment of clause 4.4, but as the deed did not specify that the company was to be wound up in those circumstances, regulation 5.3A.07(1)(b) does not operate to deem a special resolution for winding up, and the company is not in administration nor in winding up.

Jurisdiction
Australia
Judgment Date
12 September 2002
Procedural Posture
Corporations Voluntary Administration / Judgment After Application to Clarify Deed Termination and Company Status
Outcome
Declarations granted clarifying termination of deed and winding up status; director's undertaking not accepted.
Legal Topics
['voluntary Administration' 'deed of Company Arrangement' 'termination of Deed' 'transition to Winding Up' "director's Duties"]
['corporations Law'] ['voluntary Administration' 'deed of Company Arrangement' 'termination of Deed' 'transition to Winding Up' "director's Duties"]

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Procedural Posture

Corporations Voluntary Administration / Judgment After Application to Clarify Deed Termination and Company Status

Legal Issues

  1. 1 ['Has the deed of company arrangement terminated under s.445C?' 'Is Eden Construction Pty Ltd deemed to have passed a special resolution for winding up pursuant to regulations?' 'Does control revert to the director upon deed termination?' "Should the Court accept a director's undertaking to appoint a new administrator?"]

Ratio Decidendi

The deed of company arrangement terminated under s.445C due to non-fulfillment of clause 4.4, but as the deed did not specify that the company was to be wound up in those circumstances, regulation 5.3A.07(1)(b) does not operate to deem a special resolution for winding up, and the company is not in administration nor in winding up.

Court Disposition

Declarations granted clarifying termination of deed and winding up status; director's undertaking not accepted.

Orders

  • ['Declare that the deed of company arrangement dated 17 April 2002 in respect of Eden Construction Pty Ltd has terminated.' 'Declare that Eden Construction Pty Ltd is not deemed by Reg 5.3A.07 of the Corporations Regulations 2001 (Cth) or otherwise to have passed a special resolution under s.491 of the Corporations...