Fowler v Lindholm, in the matter of Opes Prime Stockbroking Limited [2009] FCAFC 125

FEDERAL COURT OF AUSTRALIA

Fowler v Lindholm, in the matter of Opes Prime Stockbroking Limited [2009] FCAFC 125

CORPORATIONS – schemes of arrangement – schemes approved by primary judge and by majority of creditors – schemes contained release and indemnity provisions binding creditors other than in their capacity as creditors – scope of s 411 Corporations Act 2001 (Cth) – whether adequate nexus between release and indemnity and the relationship between the creditors and company – whether an intelligent and honest creditor, properly informed, acting alone, might approve the schemes

Corporations Act 2001 (Cth) ss 411, 412, 555, 556 Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; referred to Bridges v Hershon [1968] 3 NSWR 47; referred to Re Buildmat (Australia) Pty Ltd (1981) 5 ACLR 689; referred to Re Glendale Land Development Ltd (In liquidation) (1982) 1 ACLC 540; referred to Isles v The Daily Mail Newspaper Limited (1912) 14 CLR 193; referred to Re NRMA (2000) 34 ACSR 261; referred to Re Opes Prime Stockbroking Limited (No 2) [2009] FCA 864; affirmed Re Sonodyne International Ltd (1994) 15 ASCR 494; referred to IN THE MATTER OF OPES PRIME STOCKBROKING LIMITED (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) (ACN 086 294 028), LEVERAGED CAPITAL PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION), HAWKSWOOD INVESTMENTS PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) and OPES PRIME GROUP LIMITED (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) (ACN 120 372 223);ROBERT FOWLER v JOHN ROSS LINDHOLM, ADRIAN LAWRENCE BROWN, PETER DAMIEN MCCLUSKEY, MERRILL LYNCH INTERNATIONAL, MERRILL LYNCH INTERNATIONAL (AUSTRALIA) LIMITED, AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED and ANZ NOMINEES LIMITED

VID 627 of 2009

EMMETT, GORDON & JAGOT JJ