Berjaya Group (Aust) Pty Ltd v Ariff [2009] NSWSC 569

Berjaya Group (Aust) Pty Ltd v Ariff [2009] NSWSC 569

The 9 September 2004 letter contained an unconditional representation by Mr Ariff to Berjaya Group (Cayman) Limited and Berjaya Group (Aust) Pty Ltd that future approved remuneration would be paid only from Deed Fund Number 1 and without recourse to CCA or CCL. The contractual claim failed because the intended consideration, committee approval of remuneration in September 2004, was ineffective and illusory. However, the representation induced the Berjaya companies' expectation and their later consent to the 2005 court-created regime for committee approval of remuneration; it would be unconscionable for Mr Ariff to depart from that representation. Promissory estoppel therefore arose, and s...

Jurisdiction
Australia
Judgment Date
18 June 2009
Procedural Posture
Corporations List Proceedings Concerning Remuneration of a Deed Administrator Under Part 5.3 a of the Corporations Act 2001 (cth) / Principal Judgment After Hearing; Declaration and Orders Made
Outcome
Declaration and orders made for the plaintiffs; defendant ordered to pay the plaintiffs' costs.
Legal Topics
['voluntary Administration' 'deed of Company Arrangement' 'remuneration of Deed Administrator' 'contractual Promise' 'promissory Estoppel' 's 447 a Orders']
['corporations' 'equity' 'insolvency'] ['voluntary Administration' 'deed of Company Arrangement' 'remuneration of Deed Administrator' 'contractual Promise' 'promissory Estoppel' 's 447 a Orders']

Case Brief

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Procedural Posture

Corporations List Proceedings Concerning Remuneration of a Deed Administrator Under Part 5.3 a of the Corporations Act 2001 (cth) / Principal Judgment After Hearing; Declaration and Orders Made

Legal Issues

  1. 1 ["Whether the defendant's 9 September 2004 representation that future remuneration would be paid from Deed Fund Number 1 only was conditional on variation of the deeds of company arrangement." "Whether the 9 September 2004 letter gave rise to a binding contract restricting the defendant's recourse for remuneration." 'Whether the defendant was estopped from claiming remuneration for work completed from 1 September 2004 to 1 November 2007 other than from Deed Fund Number 1.' 'Whether an order should be made under s 447A of the Corporations Act 2001 (Cth) to prevent departure from the representation.']

Ratio Decidendi

The 9 September 2004 letter contained an unconditional representation by Mr Ariff to Berjaya Group (Cayman) Limited and Berjaya Group (Aust) Pty Ltd that future approved remuneration would be paid only from Deed Fund Number 1 and without recourse to CCA or CCL. The contractual claim failed because the intended consideration, committee approval of remuneration in September 2004, was ineffective and illusory. However, the representation induced the Berjaya companies' expectation and their later consent to the 2005 court-created regime for committee approval of remuneration; it would be unconscionable for Mr Ariff to depart from that representation. Promissory estoppel therefore arose, and s...

Court Disposition

Declaration and orders made for the plaintiffs; defendant ordered to pay the plaintiffs' costs.

Orders

  • ['Declare that Stuart Karim Ariff is estopped as against Berjaya Group (Cayman) Limited and Berjaya Group (Aust) Pty Ltd from claiming remuneration for work completed from 1 September 2004 to 1 November 2007 as administrator of the deeds of company arrangement of Carlovers Carwash Limited, Carlovers Carwash (Aust)...