mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Re Royal &amp; Sun Alliance Life Assurance Ltd [2000] FCA 1259 ; (2000) 104 FCR 37
Outcome: cited
power to grant a dispensation from the need to comply with the requirement that an approved summary of the scheme has been given to every effected policy holder under s 17C(5) is not conditioned to occur at any particular time prior to the actual order for the making of the confirmation of the scheme. The conditions in s 17C(2) and its analogues under the Act are not preconditions to the power to order confirmation of a scheme and a failure to comply strictly with them will not prevent the Court confirming a scheme: Re Armstrong Jones Life Assurance Ltd (1997) 74 FCR 160 at 162C per Emmett J; Re Royal &amp; Sun Alliance Life Assurance Ltd [2000] FCA 1259 ; (2000) 104 FCR 37 at 40 [16] - [18] per Katz J; Re Insurance Australia Ltd [2004] FCA 524 ; (2004) 139 FCR 450 at 458-459 [31] - [37] , 463 [62]-[63] per Lindgren J.
Case: Re Insurance Australia Ltd [2004] FCA 524 ; (2004) 139 FCR 450
Outcome: cited
power to grant a dispensation from the need to comply with the requirement that an approved summary of the scheme has been given to every effected policy holder under s 17C(5) is not conditioned to occur at any particular time prior to the actual order for the making of the confirmation of the scheme. The conditions in s 17C(2) and its analogues under the Act are not preconditions to the power to order confirmation of a scheme and a failure to comply strictly with them will not prevent the Court confirming a scheme: Re Armstrong Jones Life Assurance Ltd (1997) 74 FCR 160 at 162C per Emmett J; Re Royal &amp; Sun Alliance Life Assurance Ltd [2000] FCA 1259 ; (2000) 104 FCR 37 at 40 [16] - [18] per Katz J; Re Insurance Australia Ltd [2004] FCA 524 ; (2004) 139 FCR 450 at 458-459 [31] - [37] , 463 [62]-[63] per Lindgren J.
Case: FCT v Simionato Holdings Pty Ltd (1997) 15 ACLC 477
Outcome: referred to
However, the width of the meaning of the term creditor in the Deed is likely to bring SETL within the class of creditors to which s 444D(1) and 444E apply. (See: Smith v Carr (1993) 10 ACSR 427 per Debelle J at 432). The material facts recited in the pleading show that notwithstanding the limited relief sought by SETL against London Partners in this proceeding, it is plainly arguable that SETL may be a person who has a cause of action against London Partners at law or in equity that sounds in damages albeit at this point it may be of uncertain measure. It may be a claim for equitable compensation or compensation under s 1317H of the Act for involvement in a contravention of s 181 that exists independently of rectification of the register, or it may be a contingent claim that, for example, may arise in the event that it is the fact that London Partners holds the securities on trust for a bona fide purchaser for value without notice and is unable to deliver up the securities. In either circumstance it would follow that SETL would be a creditor of London Partners in respect of an unliquidated sum. (See: Re: R L Child &amp; Co Pty Ltd (1986) 10 ACLR 673, per McLelland J at 674; FCT v Simionato Holdings Pty Ltd (1997) 15 ACLC 477 per Mansfield J at 481; Re McLean (1992) 108 ALR 360; Forshaw v Thompson (1992) 35 FCR 329; Petrochemical Industries Ltd v Dempster Nominees Pty Ltd (1994) 15 ACSR 468 per Murray J at 475-476).
Case: Forshaw v Thompson (1992) 35 FCR 329
Outcome: referred to
However, the width of the meaning of the term creditor in the Deed is likely to bring SETL within the class of creditors to which s 444D(1) and 444E apply. (See: Smith v Carr (1993) 10 ACSR 427 per Debelle J at 432). The material facts recited in the pleading show that notwithstanding the limited relief sought by SETL against London Partners in this proceeding, it is plainly arguable that SETL may be a person who has a cause of action against London Partners at law or in equity that sounds in damages albeit at this point it may be of uncertain measure. It may be a claim for equitable compensation or compensation under s 1317H of the Act for involvement in a contravention of s 181 that exists independently of rectification of the register, or it may be a contingent claim that, for example, may arise in the event that it is the fact that London Partners holds the securities on trust for a bona fide purchaser for value without notice and is unable to deliver up the securities. In either circumstance it would follow that SETL would be a creditor of London Partners in respect of an unliquidated sum. (See: Re: R L Child &amp; Co Pty Ltd (1986) 10 ACLR 673, per McLelland J at 674; FCT v Simionato Holdings Pty Ltd (1997) 15 ACLC 477 per Mansfield J at 481; Re McLean (1992) 108 ALR 360; Forshaw v Thompson (1992) 35 FCR 329; Petrochemical Industries Ltd v Dempster Nominees Pty Ltd (1994) 15 ACSR 468 per Murray J at 475-476).
Case: Re: R L Child &amp; Co Pty Ltd (1986) 10 ACLR 673
Outcome: referred to
However, the width of the meaning of the term creditor in the Deed is likely to bring SETL within the class of creditors to which s 444D(1) and 444E apply. (See: Smith v Carr (1993) 10 ACSR 427 per Debelle J at 432). The material facts recited in the pleading show that notwithstanding the limited relief sought by SETL against London Partners in this proceeding, it is plainly arguable that SETL may be a person who has a cause of action against London Partners at law or in equity that sounds in damages albeit at this point it may be of uncertain measure. It may be a claim for equitable compensation or compensation under s 1317H of the Act for involvement in a contravention of s 181 that exists independently of rectification of the register, or it may be a contingent claim that, for example, may arise in the event that it is the fact that London Partners holds the securities on trust for a bona fide purchaser for value without notice and is unable to deliver up the securities. In either circumstance it would follow that SETL would be a creditor of London Partners in respect of an unliquidated sum. (See: Re: R L Child &amp; Co Pty Ltd (1986) 10 ACLR 673, per McLelland J at 674; FCT v Simionato Holdings Pty Ltd (1997) 15 ACLC 477 per Mansfield J at 481; Re McLean (1992) 108 ALR 360; Forshaw v Thompson (1992) 35 FCR 329; Petrochemical Industries Ltd v Dempster Nominees Pty Ltd (1994) 15 ACSR 468 per Murray J at 475-476).
Case: Re McLean (1992) 108 ALR 360
Outcome: referred to
However, the width of the meaning of the term creditor in the Deed is likely to bring SETL within the class of creditors to which s 444D(1) and 444E apply. (See: Smith v Carr (1993) 10 ACSR 427 per Debelle J at 432). The material facts recited in the pleading show that notwithstanding the limited relief sought by SETL against London Partners in this proceeding, it is plainly arguable that SETL may be a person who has a cause of action against London Partners at law or in equity that sounds in damages albeit at this point it may be of uncertain measure. It may be a claim for equitable compensation or compensation under s 1317H of the Act for involvement in a contravention of s 181 that exists independently of rectification of the register, or it may be a contingent claim that, for example, may arise in the event that it is the fact that London Partners holds the securities on trust for a bona fide purchaser for value without notice and is unable to deliver up the securities. In either circumstance it would follow that SETL would be a creditor of London Partners in respect of an unliquidated sum. (See: Re: R L Child &amp; Co Pty Ltd (1986) 10 ACLR 673, per McLelland J at 674; FCT v Simionato Holdings Pty Ltd (1997) 15 ACLC 477 per Mansfield J at 481; Re McLean (1992) 108 ALR 360; Forshaw v Thompson (1992) 35 FCR 329; Petrochemical Industries Ltd v Dempster Nominees Pty Ltd (1994) 15 ACSR 468 per Murray J at 475-476).
Case: Petrochemical Industries Ltd v Dempster Nominees Pty Ltd (1994) 15 ACSR 468
Outcome: referred to
However, the width of the meaning of the term creditor in the Deed is likely to bring SETL within the class of creditors to which s 444D(1) and 444E apply. (See: Smith v Carr (1993) 10 ACSR 427 per Debelle J at 432). The material facts recited in the pleading show that notwithstanding the limited relief sought by SETL against London Partners in this proceeding, it is plainly arguable that SETL may be a person who has a cause of action against London Partners at law or in equity that sounds in damages albeit at this point it may be of uncertain measure. It may be a claim for equitable compensation or compensation under s 1317H of the Act for involvement in a contravention of s 181 that exists independently of rectification of the register, or it may be a contingent claim that, for example, may arise in the event that it is the fact that London Partners holds the securities on trust for a bona fide purchaser for value without notice and is unable to deliver up the securities. In either circumstance it would follow that SETL would be a creditor of London Partners in respect of an unliquidated sum. (See: Re: R L Child &amp; Co Pty Ltd (1986) 10 ACLR 673, per McLelland J at 674; FCT v Simionato Holdings Pty Ltd (1997) 15 ACLC 477 per Mansfield J at 481; Re McLean (1992) 108 ALR 360; Forshaw v Thompson (1992) 35 FCR 329; Petrochemical Industries Ltd v Dempster Nominees Pty Ltd (1994) 15 ACSR 468 per Murray J at 475-476).
Case: Smith v Carr (1993) 10 ACSR 427
Outcome: referred to
However, the width of the meaning of the term creditor in the Deed is likely to bring SETL within the class of creditors to which s 444D(1) and 444E apply. (See: Smith v Carr (1993) 10 ACSR 427 per Debelle J at 432). The material facts recited in the pleading show that notwithstanding the limited relief sought by SETL against London Partners in this proceeding, it is plainly arguable that SETL may be a person who has a cause of action against London Partners at law or in equity that sounds in damages albeit at this point it may be of uncertain measure. It may be a claim for equitable compensation or compensation under s 1317H of the Act for involvement in a contravention of s 181 that exists independently of rectification of the register, or it may be a contingent claim that, for example, may arise in the event that it is the fact that London Partners holds the securities on trust for a bona fide purchaser for value without notice and is unable to deliver up the securities. In either circumstance it would follow that SETL would be a creditor of London Partners in respect of an unliquidated sum. (See: Re: R L Child &amp; Co Pty Ltd (1986) 10 ACLR 673, per McLelland J at 674; FCT v Simionato Holdings Pty Ltd (1997) 15 ACLC 477 per Mansfield J at 481; Re McLean (1992) 108 ALR 360; Forshaw v Thompson (1992) 35 FCR 329; Petrochemical Industries Ltd v Dempster Nominees Pty Ltd (1994) 15 ACSR 468 per Murray J at 475-476).
Case: Allam &amp; Co Ltd v Europa Poster Services Ltd [1968] 1 WLR 638
Outcome: considered
last case is Allam &amp; Co Ltd v Europa Poster Services Ltd [1968] 1 WLR 638. I need not go into the facts. I cite the case for the observation by Buckley J who looked closely at Phipps v Rogers and Addis v Burrows and (at 652) said this: "No doubt if those cases are both good law, as I must assume that they are, the question of the validity of the notice, the interpretation of which involves some question of law, must become a question of degree. There must be cases which, because of the difficulty or complexity of the case, fall within the principle of Phipps v Rogers . There must be others which, notwithstanding that some question of law arises, because of the simplicity or comparative simplicity of the problem fall within Addis v Burrows ."
Case: Barclays Mercantile Business Finance Ltd v Sibec Developments Ltd [1992] 1 WLR 1253
Outcome: cited
these sections in mind Mr Horgan for ASP argued that the owner was forbidden from giving a notice that would determine the charter as that was prohibited by s 440C. He referred me to Barclays Mercantile Business Finance Ltd v Sibec Developments Ltd [1992] 1 WLR 1253 to support the view that this was a reasonably arguable proposition. I do not feel able to accept Mr Horgan's argument. The effect of s 440C is to prevent possession (actual or constructive) being taken of property in the hands of the administrators: Cinema Plus Ltd (Administrators Appointed) v Australia &amp; New Zealand Banking Group Ltd [2000] NSWCA 195 ; (2000) 49 NSWLR 513, 545. The notice determining the charter, even if it were effective, did not remove possession of the vessel from Pan Australia. In any event, it is plain that s 441J permits the giving of a notice of termination. In Re Java 452 Pty Ltd (Administrators Appointed) (1999) 32 ACSR 507, 515 Byrne J said in relation to a notice to determine a tenancy that the result of ss 440C and 441J was that "although the lessor may not recover possession, it may take steps to perfect its right to possession which right might be exercisable, if available, at the end of the administration". This reasoning applies a fortiori to a charterparty. The English legislation considered in Barclays Mercantile, the Insolvency Act 1986 (UK), is in different terms. There is in any case nothing like s 441J in that statute.
Case: Cinema Plus Ltd (Administrators Appointed) v Australia &amp; New Zealand Banking Group Ltd [2000] NSWCA 195 ; (2000) 49 NSWLR 513
Outcome: cited
do not feel able to accept Mr Horgan's argument. The effect of s 440C is to prevent possession (actual or constructive) being taken of property in the hands of the administrators: Cinema Plus Ltd (Administrators Appointed) v Australia &amp; New Zealand Banking Group Ltd [2000] NSWCA 195 ; (2000) 49 NSWLR 513, 545. The notice determining the charter, even if it were effective, did not remove possession of the vessel from Pan Australia. In any event, it is plain that s 441J permits the giving of a notice of termination. In Re Java 452 Pty Ltd (Administrators Appointed) (1999) 32 ACSR 507, 515 Byrne J said in relation to a notice to determine a tenancy that the result of ss 440C and 441J was that "although the lessor may not recover possession, it may take steps to perfect its right to possession which right might be exercisable, if available, at the end of the administration". This reasoning applies a fortiori to a charterparty. The English legislation considered in Barclays Mercantile, the Insolvency Act 1986 (UK), is in different terms. There is in any case nothing like s 441J in that statute.
Case: Morris v Ship Kiama (Mubum) (1998) 16 ACLC 945
Outcome: cited
administrators seek the revocation because they have a potential buyer for the business and the sale may not go ahead unless the buyer is able to charter the vessel. They also say that if the action in rem remains on foot the owner will incur legal costs that will be passed on to the company in administration. I think there is little substance in the first point. If the vessel is arrested the owner will put up security and obtain its release. That will happen quickly, as it always does with a vessel that can easily be demised. There is some substance to the second point. I accept the owner will incur some costs in sorting out the quantum of ASP's claim and a portion of the costs will be payable by Pan Australia, leaving less for the other unsecured creditors. But the costs will not be excessive, in my opinion. Anyway, I am of opinion that the interests of the general body of unsecured creditors should be subordinated to those of ASP whose claim over the vessel is proprietary in nature. See also in relation to a similar application: Morris v Ship Kiama (Mubum) (1998) 16 ACLC 945. For the foregoing reasons, I will make orders that Jaymont's motion be dismissed with costs and Pan Australia's application be dismissed but with no order as to costs. There will also be an order that ASP have leave to apply in proceeding no. VID 1099 of 2006 for the arrest of the vessel. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein. Associate: Dated: 20 October 2006 Counsel for the Plaintiff in proceeding nos. VID 1092 of 2006 and VID 1099 of 2006: Mr S Horgan Solicitor for the Plaintiff in proceeding nos. VID 1092 of 2006 and VID 1099 of 2006: Holman Fenwick &amp; Willan Counsel for the Defendant in proceeding no. VID 1092 of 2006: Mr J Evans Solicitor for the Defendant in proceeding no. VID 1092 of 2006: Russell Kennedy Counsel for the Defendant in proceeding no. VID 1099 of 2006: Mr H N G Austin Solicitor for the Defendant in proceeding no. VID 1099 of 2006: Monahan + Rowell Date of Hearing: 12 October 2006 Date of Judgment: 18 October 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1379.html
Case: Re Ansett; Intrepid Aviation Partners VII LLC v Ansett Australia Ltd [2001] FCA 1360 ; (2001) 115 FCR 175
Outcome: cited
general purpose of the moratorium provisions to which I have referred is to prevent outside intervention that could jeopardise the continuation of the company's business during its administration: National Australia Bank Ltd v King (2003) 45 ACSR 413. By keeping outsiders at bay there is greater likelihood that the objects of Pt 5.3A will be achieved: Re Ansett; Intrepid Aviation Partners VII LLC v Ansett Australia Ltd [2001] FCA 1360 ; (2001) 115 FCR 175. Those objects are to maximise the chances of the company or as much as possible of its business continuing in existence and, if that is not possible, to achieve a better return for the company's creditors and members than would result from an immediate winding up of the company: see s 435A. Holding those objects in mind, I am nonetheless of the view that the leave order should not be revoked. Shortly after their appointment the administrators decided that they did not wish to retain the vessel and wrote to the owner advising that the vessel would be redelivered. Thus, the administrator cannot say indeed they do not say that the removal of the vessel from their control by its arrest will impede the administration.
Case: Re Java 452 Pty Ltd (Administrators Appointed) (1999) 32 ACSR 507
Outcome: applied
do not feel able to accept Mr Horgan's argument. The effect of s 440C is to prevent possession (actual or constructive) being taken of property in the hands of the administrators: Cinema Plus Ltd (Administrators Appointed) v Australia &amp; New Zealand Banking Group Ltd [2000] NSWCA 195 ; (2000) 49 NSWLR 513, 545. The notice determining the charter, even if it were effective, did not remove possession of the vessel from Pan Australia. In any event, it is plain that s 441J permits the giving of a notice of termination. In Re Java 452 Pty Ltd (Administrators Appointed) (1999) 32 ACSR 507, 515 Byrne J said in relation to a notice to determine a tenancy that the result of ss 440C and 441J was that "although the lessor may not recover possession, it may take steps to perfect its right to possession which right might be exercisable, if available, at the end of the administration". This reasoning applies a fortiori to a charterparty. The English legislation considered in Barclays Mercantile, the Insolvency Act 1986 (UK), is in different terms. There is in any case nothing like s 441J in that statute.
Case: The Aegnoussiotis [1977] 1 Lloyd's Rep 268
Outcome: applied
owner contends that the fourth paragraph constitutes the notice of termination. ASP says that when regard is had to the entirety of the letter that paragraph could not stand as a notice of termination for it is neither clear nor unequivocal. In this regard the parties accept that under English law, which is the governing law, a notice of termination must clearly and unambiguously indicate that the owner has decided to terminate the charter. In The Aegnoussiotis [1977] 1 Lloyd's Rep 268, Donaldson J said (at 275): "No particular form of words or notice is required [to terminate a charter], but the charterers must be informed that the owner is treating the non-payment of hire as having terminated the charterparty." Although notice of termination may be informal, what is required is "an unequivocal act or statement [by the owner] communicated to [the charterer] showing that [the owner intends to terminate the charter]": The Mihalios Xilas [1979] 2 Lloyd's Rep 303, 307 per Lord Diplock. Put rather more simply, the owner must make plain his decision to terminate the charter, not to lawyers but to the person who is to act on the notice.
Case: The Mihalios Xilas [1979] 2 Lloyd's Rep 303
Outcome: applied
owner contends that the fourth paragraph constitutes the notice of termination. ASP says that when regard is had to the entirety of the letter that paragraph could not stand as a notice of termination for it is neither clear nor unequivocal. In this regard the parties accept that under English law, which is the governing law, a notice of termination must clearly and unambiguously indicate that the owner has decided to terminate the charter. In The Aegnoussiotis [1977] 1 Lloyd's Rep 268, Donaldson J said (at 275): "No particular form of words or notice is required [to terminate a charter], but the charterers must be informed that the owner is treating the non-payment of hire as having terminated the charterparty." Although notice of termination may be informal, what is required is "an unequivocal act or statement [by the owner] communicated to [the charterer] showing that [the owner intends to terminate the charter]": The Mihalios Xilas [1979] 2 Lloyd's Rep 303, 307 per Lord Diplock. Put rather more simply, the owner must make plain his decision to terminate the charter, not to lawyers but to the person who is to act on the notice.
Case: The Rangiora [2000] 1 Lloyd's Rep 36
Outcome: cited
second question, whether termination was effected, gives rise to several difficult issues. The first is whether a notice of termination will bring the charter to an end or whether the charter remains on foot until the vessel is repossessed. Unfortunately this is still a controversial topic. In The Turakina (1998) 154 ALR 666, Tamberlin J held that a demise charter, under which possession and control of the ship had been given to the charterer, could not be terminated by notice alone. He said termination would only occur when the owner retook possession of the ship. In The Rangiora [2000] 1 Lloyd's Rep 36, the New Zealand High Court followed that decision, stating that the principle was a rule of the common law. Nonetheless, there is a view that the rule established in The Turakina may be avoided by careful drafting. In CMC (Australia) Pty Ltd v Ship 'Socofl Stream' [1999] FCA 1419 ; (1999) 95 FCR 403 it was held that the question whether a demise charter could be terminated without repossession depended upon the terms of the charterparty. The judge, Moore J, said (at 419): "[I]t is necessary to ascertain from the terms of the charterparty whether the continuing physical possession of a vessel by the charterer (pending the taking of physical possession by the owner either by redelivery or some other means) is co-extensive with continuing possession and absolute control of the vessel of the type characteristic of a demise charter." He went on to say (at 520) that it: "... is difficult to avoid a conclusion that if a charterparty expressly provided for its termination and the power to terminate was exercised, then the charterer ceased to be a demise charterer from the time of termination at least in the absence of provisions in the charterparty that suggested some other result."