Parkview Constructions Pty Ltd v Tayeh & Ors [2009] NSWSC 186

Parkview Constructions Pty Ltd v Tayeh & Ors [2009] NSWSC 186

The deed of company arrangement had already terminated under s 445C(c) when the clause 4.1 steps were completed on 20 February 2009, so an order under s 445D(1) would have no utility. Parkview could not shift in submissions in reply to a new case under s 447A, and in any event a s 447A order treating the deed as never binding would not abolish or neutralise the independent rights and obligations created by the trust deed, implementation deed and charge. The proceedings were therefore dismissed except for leave nunc pro tunc under s 440D for proceedings 55003/09.

Jurisdiction
Australia
Judgment Date
24 March 2009
Procedural Posture
Corporations List Proceeding Concerning Voluntary Administration and Deed of Company Arrangement / Final Hearing of Amended Originating Process
Outcome
Leave to proceed granted under s 440D; amended originating process otherwise dismissed; restraining orders dissolved.
Legal Topics
['voluntary Administration' 'deed of Company Arrangement' "creditors' Trust" 'termination of Deed of Company Arrangement' 'set Off' 'security of Payment Adjudication' 'section 447 a Orders']
['corporations Law' 'insolvency' 'building and Construction'] ['voluntary Administration' 'deed of Company Arrangement' "creditors' Trust" 'termination of Deed of Company Arrangement' 'set Off' 'security of Payment Adjudication' 'section 447 a Orders']

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Procedural Posture

Corporations List Proceeding Concerning Voluntary Administration and Deed of Company Arrangement / Final Hearing of Amended Originating Process

Legal Issues

  1. 1 ['Whether the Court should terminate the deed of company arrangement under s 445D(1)(c), (e), (f) or (g) of the Corporations Act 2001 (Cth).' 'Whether the deed of company arrangement had already terminated under s 445C(c) when the specified circumstances in the deed occurred.' 'Whether Parkview could rely on s 447A in submissions in reply to seek termination ab initio of the deed of company arrangement.' "Whether an order under s 447A could abolish or neutralise independently created rights and obligations under the creditors' trust, implementation deed and charge." 'Whether leave nunc pro tunc should be granted under s 440D for proceedings 55003/09.']

Ratio Decidendi

The deed of company arrangement had already terminated under s 445C(c) when the clause 4.1 steps were completed on 20 February 2009, so an order under s 445D(1) would have no utility. Parkview could not shift in submissions in reply to a new case under s 447A, and in any event a s 447A order treating the deed as never binding would not abolish or neutralise the independent rights and obligations created by the trust deed, implementation deed and charge. The proceedings were therefore dismissed except for leave nunc pro tunc under s 440D for proceedings 55003/09.

Court Disposition

Leave to proceed granted under s 440D; amended originating process otherwise dismissed; restraining orders dissolved.

Orders

  • ['Order pursuant to s 440D(1) of the Corporations Act 2001 (Cth) that the plaintiff have leave nunc pro tunc to begin and to proceed with proceedings 55003/09 in the Technology and Construction List of this Division.' 'Order that the amended originating process be otherwise dismissed.' 'Order that the restraining...