Mulvaney, B N v Rob Wintulich Pty Ltd & Ors [1995] FCA 826

CATCHWORDS CORPORATIONS - management and administration - external administration - application to vary deed of company arrangement - original deed drawn on erroneous assumption - extent of operation of s445G of Corporations Law - width of discretion conferred on the court by s447A - whether appropriate in the circumstances to exercise discretion to vary deed - factors applicable to exercise of discretion. Corporations Law ss 444G, 445G(1) and 447A Re GIGA Investments Pty Ltd (Admin Apptd.) (1995) 13 ACLC 1185 No SG 3184 of 1995 BRUCE NEIL MULVANEY v ROB WINTULICH PTY LTD (ACN 007 782 121), TREBOR PTY LTD (ACN 007 849 229), FRANK WALTER WINTULICH and THE DECEASED ESTATE OF THELMA LILLIAN WINTULICH Branson J Adelaide 16 October 1995

IN THE FEDERAL COURT OF AUSTRALIA) ) SOUTH AUSTRALIA DISTRICT REGISTRY) No SG 3184 of 1995 ) GENERAL DIVISION ) BETWEEN: BRUCE NEIL MULVANEY Applicant - and - ROB WINTULICH PTY LTD (ACN 007 782 121) First Respondent - and - TREBOR PTY LTD (ACN 007 849 229) Second Respondent - and - FRANK WALTER WINTULICH Third Respondent - and - THE DECEASED ESTATE OF THELMA LILLIAN WINTULICH Fourth Respondent MINUTES OF ORDER CORAM: Branson J PLACE: Adelaide DATE: 16 October 1995 THE COURT ORDERS THAT: 1. Service of the notice of motion dated 13 October 1995 is dispensed with. 2. The deed of company arrangement executed on 19 September 1995 is varied by the deletion of the present clause 3B.1 and its replacement by the following clause:-

"3B.1 One (1) clear business day prior to the Operation Date the shareholders listed in Schedule A shall deliver duly executed transfers of all of their shares in Wintulichs to the Administrator or as directed by the Administrator for a total consideration of $1.00 being paid to each of the shareholders by the consortium of investors subject to the consortium of investors making a further payment of $12,600.00 to Robert Wintulich, a director of Wintulichs, and Rob Wintulich Pty Ltd and Trebor Pty Ltd by way of reimbursement of legal fees and other expenses incurred by him in negotiating the settlement of a long outstanding dispute with Wintulichs Pty Ltd. That payment is in full and final settlement and satisfaction of all and any disputes between Wintulichs Pty Ltd, Robert Wintulich, Trebor Pty Ltd, the deceased estate of Thelma Lillian Wintulich, John Wintulich Pty Ltd, Huxley Pty Ltd and Frank Wintulich. The Administrator will cause the share transfers to be allocated to the consortium of investors pro rata according to their respective contributions of capital and hand them over to the consortium of investors on the Operation Date." Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.