Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Hall, in the matter of Australian Capital Reserve Limited (in Liquidation) (ACN 089 189 502) [2008] FCA 1895
CORPORATIONS – liquidators' application for order that they would be justified in deferring dividend to unsecured creditors – liquidators doubt solvency of company from whom funds are being received – potential preference claim – issue not matter of commercial judgment but rather a question of propriety or reasonableness – note holders oppose deferral of dividends – order made as per liquidators' request Corporations Act 2001 (Cth) s 511 Re Ansett Australia Ltd (No 3) (2002) 115 FCR 409 referred to Dean-Willcocks v Soluble Solution Hydroponics Pty Ltd (1997) 42 NSWLR 209 referred to Re Statewide Investments Ltd (In liq) (1981) 6 ACLR 265 referred to Ford HAJ, Austin RP and Ramsay IM, Ford's Principles of Corporations Law (Butterworths Australia, looseleaf service) IN THE MATTER OF AUSTRALIAN CAPITAL RESERVE LIMITED (IN LIQUIDATION) (ACN 089 189 502); APPLICATION OF GREGORY WINFIELD HALL & PHILIP PATRICK CARTER AS JOINT & SEVERAL LIQUIDATORS OF AUSTRALIAN CAPITAL RESERVE (IN LIQUIDATION) (ACN 089 189 502)
NSD 1893 of 2008
JACOBSON J
9 DECEMBER 2008
SYDNEY IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NSD 1893 of 2008
IN THE MATTER OF AUSTRALIAN CAPITAL RESERVE LIMITED (IN LIQUIDATION) (ACN 089 189 502) APPLICATION OF GREGORY WINFIELD HALL & PHILIP PATRICK CARTER AS JOINT & SEVERAL LIQUIDATORS OF AUSTRALIAN CAPITAL RESERVE LIMITED (IN LIQUIDATION) (ACN 089 189 502)
Applicants
JUDGE: JACOBSON J
DATE OF ORDER: 9 DECEMBER 2008
WHERE MADE: SYDNEY
THE COURT ORDERS THAT:
1. The Originating Process be made returnable instanter. 2. The Plaintiffs have leave to file in Court the affidavit of Gregory Winfield Hall sworn on 8 December 2008. 3. Confidential Exhibit GWH-2 to the affidavit of Gregory Winfield Hall sworn on 8 December 2008 and filed in this proceeding be confidential, and no person is to have access to those documents without an order of the Court. 4. Pursuant to s 511(1) of the Corporations Act 2001 (Cth), the Plaintiffs would be justified in not declaring any interim or final dividend to ordinary unsecured creditors of ACR that would involve distribution of funds received or to be received under the Agreement until expiry of a period of at least six months following the respective dates of receipt of those funds. 5. The Plaintiffs' costs of and incidental to the Originating Process be paid as expenses of ACR's winding up. In these orders: ACR means Australian Capital Reserve Limited (In Liquidation) (ACN 089 187 502). Agreement means the "Receivables Acquisition Deed" dated 21 September 2007 made between ACR, Becton Investment Management Limited and Becton Property Group Limited, as amended by the "Amending Deed" dated 2 December 2008 made between those same parties. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA
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