Hill, in the matter of Fisher & Paykel Australia Pty Ltd v Hill [2001] FCA 800

FEDERAL COURT OF AUSTRALIA

Hill, in the matter of Fisher & Paykel Australia Pty Ltd v Hill [2001] FCA 800

BANKRUPTCY – application to terminate Part X Deed of Arrangement – whether debtors have failed to carry out or comply with a provision of the Deed under s 236(1)(a) of Bankruptcy Act 1966 (Cth) – failure to transfer valueless shares to the Trustee and failure to transfer equity in property do not justify exercise of Court's discretion to terminate deed – whether continuation of Deed would cause injustice or undue delay to creditors under s 236(1)(b) – where there is no chance that debts will be discharged by continuation of the Deed it cannot be proceeded with without injustice and undue delay – Deed of Arrangement terminated and a sequestration order made WORDS & PHRASES – meaning of "upon final payment", "injustice" Khera v National Australia Bank [1996] 1050 FCA 1 referred to Heuir; Ex parte Benedeich [1998] 641 FCA distinguished Bankruptcy Act 1966 (Cth) ss 236, 234(1), 116, 187, 222, 232, 237A, 204 Corporations Law ss 446A, 493(2) IN THE MATTER OF GAIL VALMA HILL AND DAVID RONALD HILL FISHER & PAYKEL AUSTRALIA PTY LTD AND EMAIL LTD v GAIL VALMA HILL, DAVID RONALD HILL AND GEOFFREY DAVID McDONALD N 7163 OF 2001 HELY J 27 JUNE 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 7163 OF 2001

BETWEEN: FISHER & PAYKEL AUSTRALIA PTY LTD

FIRST APPLICANT

EMAIL LTD

SECOND APPLICANT

AND: GAIL VALMA HILL

FIRST RESPONDENT

DAVID RONALD HILL

SECOND RESPONDENT

GEOFFREY DAVID McDONALD

THIRD RESPONDENT

JUDGE: HELY J

DATE OF ORDER: 27 JUNE 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The Deed of Arrangement entered into by the first and second respondents on 21 April 1999 be terminated. 2. A sequestration order be made against the estates of the first and second respondents. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.