In the matter of Henry Walker Eltin Group Ltd (Administrators Appointed) (No 4) [2005] FCA 745

FEDERAL COURT OF AUSTRALIA In the matter of Henry Walker Eltin Group Ltd (Administrators Appointed) (No 4) [2005] FCA 745 Corporations Act 2001 (Cth) s 447A IN THE MATTER OF HENRY WALKER ELTIN GROUP LTD (ADMINISTRATORS APPOINTED) NSD 1368 OF 2005 HELY J 10 AUGUST 2005 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1368 OF 2005

BETWEEN: HENRY WALKER ELTIN GROUP

(ACN 007 710 483)

(ADMINISTRATORS APPOINTED)

FIRST PLAINTIFF

ANTHONY GREGORY McGRATH

SECOND PLAINTIFF

SCOTT BRADLEY KERSHAW

THIRD PLAINTIFF

JOSEPH DAVID HAYES

FOURTH PLAINTIFF

SHAUN ROBERT FRASER

FIFTH PLAINTIFF

JUDGE: HELY J DATE OF ORDER: 10 AUGUST 2005 WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. Pursuant to s 447A of the Corporations Act 2001 (Cth) ('the Act'), that Part 5.3A of the Act is to operate in relation to each of the second plaintiff and the third plaintiff so that: (a) by entering into the agreements which are identified as: (i) Master Asset Finance Agreement and each Lease under it for equipment; (ii) Put and Call Option Deed (Yandi - New Equipment); (iii) Put and Call Option Deed (Area C – New Equipment); or agreements substantially to the effect of those documents, identified in the affidavit of Joseph David Hayes sworn on 10 August 2005 whilst the first plaintiffs are administrators of the third plaintiff and the third plaintiff incurring liabilities (whether arising during the administration or after) from the obligations thereunder, the first plaintiffs will, subject to the limitations on the liability of the first plaintiffs contained in those documents, be deemed to incur debts in the performance and exercise of their functions as administrators of the third plaintiff under subs 443A(1) of the Act for property hired, leased, used or occupied (Debts); (b) by entering into the guarantee of the Master Asset Finance Agreement and each Lease under it for equipment, or agreements substantially to the effect of those documents, identified in the affidavit of Joseph David Hayes sworn on 10 August 2005 whilst the first plaintiffs are administrators of the second plaintiff and the second plaintiff incurring liabilities (whether arising during the administration or after) from the obligations thereunder, the first plaintiffs will, subject to the limitations on the liability of the first plaintiffs contained in those documents, be deemed to incur debts in the performance and exercise of their functions as administrators of the second plaintiffs under subs 443A(1) of the Act (Debts) for property hired, leased, used or occupied; and (c) by entering into the agreements which are identified as: (i) Put and Call Option Deed (Yandi – Existing Equipment); (ii) Put and Call Option Deed (Area C – Existing Equipment), or agreements substantially to the effect of those documents, identified in the affidavit of Joseph David Hayes sworn on 10 August 2005 whilst the first plaintiffs are administrators of the third plaintiff and the third plaintiff incurring liabilities (whether arising during the administration or after) from the obligations set out in clauses 8.2 to 8.8 (inclusive) of each of those documents, the first plaintiffs will, subject to the limitations on the liability of the first plaintiffs contained in those documents, be deemed to incur debts in the performance and exercise of their functions and powers as administrators of the third plaintiff under subs 443A(1) of the Act (Debts) for property hired, leased, used or occupied; and (d) notwithstanding paragraphs (a), (b) and (c), if the first plaintiffs' indemnity under s 443D of the Act is insufficient to meet any such Debts, the first plaintiffs will not be liable to pay any such Debts to the extent of that insufficiency. 2. The costs of this application be costs in the administration of each of the second and third plaintiffs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.