Gosford City Council v Parbery (Liquidator); In the Matter of Lehman Brothers Australia Ltd (In Liq) (Scheme Administrators Appointed) [2016] FCA 353

Gosford City Council v Parbery (Liquidator); In the Matter of Lehman Brothers Australia Ltd (In Liq) (Scheme Administrators Appointed) [2016] FCA 353

Clause 57(e) of the Claims Resolution Process Deed requires that, where there are multiple transactions in a particular Claim CDO, loss calculations must assume 'first in first out' for all relevant transactions without distinction between portfolios. The CRP rules do not permit limiting the required calculation to transactions in only the Main Portfolio. Further, claims for adjustments under clause 59 regarding CDOs for which claims have been released under a prior Deed of Release cannot succeed. The plain wording of the Deed of Release bars such claims and precludes GCC from benefitting from clause 59 in relation to IMP Acquired CDOs.

Parties
Plaintiff: Gosford City Council; Defendants: Stephen James Parbery and Marcus William Ayres in their capacity as Liquidators for Lehman Brothers Australia Ltd (In Liquidation) (Scheme Administrators Appointed)
Jurisdiction
Australia
Judgment Date
11 April 2016
Procedural Posture
Application Under Corporations Act S 1321 to Modify the Decision of Liquidators Regarding Proof of Debt / Judgment After Contested Hearing
Outcome
Application dismissed; costs to defendants
Legal Topics
Proof of Debt in Liquidation, Claims Resolution Processes, Interpretation of Contracts and Deeds, Effect of Deeds of Release
Commercial Law Corporations Law Insolvency Law Proof of Debt in Liquidation Claims Resolution Processes Interpretation of Contracts and Deeds Effect of Deeds of Release

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 3 Party arguments 2 Amounts and remedies 8
Sign in to unlock

Parties

Gosford City Council

Plaintiff

Stephen James Parbery and Marcus William Ayres in their capacity as Liquidators for Lehman Brothers Australia Ltd (In Liquidation) (Scheme Administrators Appointed)

Defendants

Procedural Posture

Application Under Corporations Act S 1321 to Modify the Decision of Liquidators Regarding Proof of Debt / Judgment After Contested Hearing

Legal Issues

  1. 1 Proper construction and application of clause 57(e) ('first in first out') and clause 59(a) of the Claims Resolution Process Deed as incorporated into proof of debt calculations; whether all transactions in both Main and Loan Portfolios are relevant for calculation under the CRP rules; effect of a prior Deed of Release on adjustability under CRP clause 59

Ratio Decidendi

Clause 57(e) of the Claims Resolution Process Deed requires that, where there are multiple transactions in a particular Claim CDO, loss calculations must assume 'first in first out' for all relevant transactions without distinction between portfolios. The CRP rules do not permit limiting the required calculation to transactions in only the Main Portfolio. Further, claims for adjustments under clause 59 regarding CDOs for which claims have been released under a prior Deed of Release cannot succeed. The plain wording of the Deed of Release bars such claims and precludes GCC from benefitting from clause 59 in relation to IMP Acquired CDOs.

Court Disposition

Application dismissed; costs to defendants

Orders

  • The Application be dismissed.
  • The plaintiff pay the defendants' costs of and incidental to the Application.