Dean-Willcocks v GSA Formwork [1999] NSWSC 166

Dean-Willcocks v GSA Formwork [1999] NSWSC 166

The Court declined to terminate the deed under s.445D(1)(d) because convening the meetings was not sufficient evidence of anticipatory breach and there was no evidence allowing an inference as to how members would decide. The Court terminated the deed under s.445D(1)(g) because, on the special facts, GSA was insolvent, substantial post-deed debts had been incurred without appropriate protection for new creditors, uncertainty would arise if the members and creditors meetings proceeded while the deed remained on foot, the proposed creditors meeting suffered serious notice deficiencies affecting pre-21 January 1998 creditors and possibly other creditors, and the directors supported the...

Jurisdiction
Australia
Judgment Date
16 February 1999
Procedural Posture
Corporation Voluntary Administration Application to Terminate Deed of Company Arrangement / Summons Seeking Orders Under S.445 D or S.447 a of the Corporations Law
Outcome
Application granted; deed of company arrangement terminated under s.445D(1)(g) of the Corporations Law.
Legal Topics
['voluntary Administration' 'deed of Company Arrangement' 'termination of Deed of Company Arrangement' 'creditors Voluntary Winding Up' 'notice to Creditors' 'director Penalty Notices']
['corporations Law' 'insolvency'] ['voluntary Administration' 'deed of Company Arrangement' 'termination of Deed of Company Arrangement' 'creditors Voluntary Winding Up' 'notice to Creditors' 'director Penalty Notices']

Case Brief

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Procedural Posture

Corporation Voluntary Administration Application to Terminate Deed of Company Arrangement / Summons Seeking Orders Under S.445 D or S.447 a of the Corporations Law

Legal Issues

  1. 1 ['Whether the deed of company arrangement should be terminated under s.445D or s.447A of the Corporations Law.' 'Whether convening meetings of members and creditors to consider voluntary winding up amounted to a material contravention or anticipatory breach of the deed under s.445D(1)(d).' "Whether the deed should be terminated for 'some other reason' under s.445D(1)(g)." 'Whether deficiencies in notice of the proposed creditors meeting made it appropriate for the Court to intervene rather than leave the matter to the meeting.']

Ratio Decidendi

The Court declined to terminate the deed under s.445D(1)(d) because convening the meetings was not sufficient evidence of anticipatory breach and there was no evidence allowing an inference as to how members would decide. The Court terminated the deed under s.445D(1)(g) because, on the special facts, GSA was insolvent, substantial post-deed debts had been incurred without appropriate protection for new creditors, uncertainty would arise if the members and creditors meetings proceeded while the deed remained on foot, the proposed creditors meeting suffered serious notice deficiencies affecting pre-21 January 1998 creditors and possibly other creditors, and the directors supported the...

Court Disposition

Application granted; deed of company arrangement terminated under s.445D(1)(g) of the Corporations Law.

Orders

  • ['Order terminating the deed of company arrangement dated 10 March 1998 under s.445D(1)(g) of the Corporations Law.' 'Order that the plaintiff have costs.']