The Airtourer Co-operative Ltd v Millicer Aircraft Industries Pty Ltd (subject to a Deed of Company Arrangement) [2004] FCA 393

The Airtourer Co-operative Ltd v Millicer Aircraft Industries Pty Ltd (subject to a Deed of Company Arrangement) [2004] FCA 393

The applicant's claim for specific performance is not a claim of a creditor subject to the deed of company arrangement, as it is not connected to any debt or contingency provable at the relevant date. Accordingly, paragraph 12 of the respondents' Defence is struck out, as it does not answer the applicant's claim for specific performance.

Jurisdiction
Australia
Judgment Date
07 April 2004
Procedural Posture
Civil / Determination of a Preliminary/separate Question
Outcome
The applicant's claim for declaratory relief is struck out. Paragraph 12 of the respondents' Defence is struck out. No order for costs on the separate question.
Legal Topics
['issue Estoppel' 'abuse of Process' 'deed of Company Arrangement' 'specific Performance' 'creditor Claims']
['corporations' 'practice and Procedure'] ['issue Estoppel' 'abuse of Process' 'deed of Company Arrangement' 'specific Performance' 'creditor Claims']

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Procedural Posture

Civil / Determination of a Preliminary/separate Question

Legal Issues

  1. 1 ['Whether the applicant is a creditor for the purpose of the deed of company arrangement' 'Whether leave of the Court is required to bring proceedings against a company subject to a deed of company arrangement' 'Whether issue estoppel or abuse of process prevents the respondents from pleading paragraph 12 of their defence']

Ratio Decidendi

The applicant's claim for specific performance is not a claim of a creditor subject to the deed of company arrangement, as it is not connected to any debt or contingency provable at the relevant date. Accordingly, paragraph 12 of the respondents' Defence is struck out, as it does not answer the applicant's claim for specific performance.

Court Disposition

The applicant's claim for declaratory relief is struck out. Paragraph 12 of the respondents' Defence is struck out. No order for costs on the separate question.

Orders

  • ["The applicant's claim for declaratory relief made in paragraph 1 of its Application dated 23 October 2003 is struck out." "Paragraph 12 of the respondents' Defence is struck out." 'There is no order for costs in relation to the separate question.']