Case: Emanuele v Australian Securities Commission (1995) 63 FCR 54
Outcome: cited
The plaintiff has sought an order that the deed be terminated. It is not clear in which capacity the plaintiff makes that application but I think because of the provisions of s 471A that he has made this application as liquidator. Section 445D of the Act empowers the Court to terminate a deed in the circumstances specified in the section. A deed would be terminated if, in the exercise of the Court's discretion, it is in the interests of the creditors as a whole and in the public interest: Emanuele v Australian Securities Commission (1995) 63 FCR 54. 54 In the present circumstances, on the appointment of the plaintiff as liquidator, the DOCA has no further work to do and cannot assist the two creditors who have not received their dividend in accordance with the DOCA. For that reason, it would be appropriate to order its termination: s 445D(1)(g). In those circumstances, I am prepared to make an order terminating the deed. 55 If the deed is terminated, the plaintiff's remuneration as deed administrator would become a deferred expense for the purpose of s 556 of the Act and payable accordingly. 56 I make the following directions and orders: 1. A direction that the plaintiff would be justified in making an application for the termination of the deed of company arrangement executed by Strongest Link Pty Ltd (in Liq) (Subject to a Deed of Company Administration) on 31 December 2005. 2. An order pursuant to s 445D(1) of the Corporations Act 2001 (Cth) (the Act) that the deed of company arrangement executed by Strongest Link Pty Ltd (in Liq) (Subject to a Deed of Company Administration) on 31 December 2005 be terminated. 3. An order that pursuant to s 447A of the Act that the order made in paragraph 2 hereof is not to be taken as the passing of a special resolution in accordance with s 446B(1) of the Act and reg 5.3A.07 of the Corporations Regulations 2001 (Cth). 4. A direction that the plaintiff would be justified upon the termination of the deed of company arrangement executed by Strongest Link Pty Ltd (in Liq) (Subject to a Deed of Company Administration) on 31 December 2005, in applying and distributing the fund described in clause 5 of that deed as the property of Strongest Link Pty Ltd (in Liq) (Subject to a Deed of Company Administration) in due course of winding up. 5. A direction that the plaintiff would be justified upon the termination of the deed of company arrangement executed by Strongest Link Pty Ltd (in Liq) (Subject to a Deed of Company Administration) on 31 December 2005, in treating his remuneration payable pursuant to clause 8 of the deed "as deferred expenses" within the meaning of s 556 of the Act in the winding up. 6. The costs of this application be paid out of the assets of Strongest Link Pty Ltd (in Liq) (Subject to a Deed of Company Administration) as an expense of the winding up. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate: Dated: 3 July 2008 Counsel for the Plaintiff: Mr S Ower Solicitor for the Plaintiff: Camatta Lempens Pty Limited Date of Hearing: 24 June 2008 Date of Judgment: 3 July 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1007.html