Hill v Fisher & Paykel Australia Pty Limited [2001] FCA 1880

FEDERAL COURT OF AUSTRALIA

Hill v Fisher & Paykel Australia Pty Limited [2001] FCA 1880 BANKRUPTCY – Deed of Arrangement under Part X of the Bankruptcy Act 1966 (Cth) – whether Part X Deed of Arrangement provided for release of debtors – whether primary judge erred in construction of Part X Deed – whether primary judge erred in terminating Deed – reference to surrounding circumstances in construction of Part X Deed – whether primary judge erred in making sequestration orders Bankruptcy Act 1966 (Cth) s 189A, s 236(1)(b), s 236(3), Part X Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1WLR 989 referred to Chitty on Contracts 28th ed. 1999 Vol 1 par 12-064 GAIL VALMA HILL & ANOR v FISHER & PAYKEL AUSTRALIA PTY LIMITED & ANOR N 1028 of 2001 CARR, CONTI & STONE JJ 21 DECEMBER 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1028 OF 2001

BETWEEN: GAIL VALMA HILL

FIRST APPELLANT

DAVID RONALD HILL

SECOND APPELLANT

AND: FISHER & PAYKEL AUSTRALIA PTY LIMITED

FIRST RESPONDENT

GEOFFREY DAVID McDONALD

SECOND RESPONDENT

JUDGE: CARR, CONTI & STONE JJ

DATE OF ORDER: 21 DECEMBER 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The orders made by the primary judge on 27 June 2001 in proceeding N 7163 of 2001 be set aside.

3. In lieu thereof the application in proceeding N 7163 of 2001 be dismissed.

4. The first respondent pay the appellants' costs of the proceedings at first instance and of the appeal, including any reserved costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1028 OF 2001