ABC Learning Centres Limited, in the matter of ABC Learning Centres Limited; application by Walker (No 6) [2008] FCA 2009

FEDERAL COURT OF AUSTRALIA

ABC Learning Centres Limited, in the matter of ABC Learning Centres Limited; application by Walker (No 6) [2008] FCA 2009

PETER WALKER & GREGORY MOLONEY (IN THEIR CAPACITY AS VOLUNTARY ADMINISTRATORS OF ABC LEARNING CENTRES LIMITED (ADMINISTRATORS APPOINTED) (RECEIVERS & MANAGERS APPOINTED) & THE COMPANIES LISTED IN SCHEDULE 1 and ABC LEARNING CENTRES LIMITED (ADMINISTRATORS APPOINTED) (RECEIVERS & MANAGERS APPOINTED) & THE COMPANIES LISTED IN SCHEDULE 1

NSD 1846 of 2008

EMMETT J

22 DECEMBER 2008

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1846 of 2008

IN THE MATTER OF ABC LEARNING CENTRES LIMITED & ORS, PETER WALKER & GREGORY MOLONEY (IN THEIR CAPACITY AS VOLUNTARY ADMINISTRATORS OF ABC LEARNING CENTRES LIMITED (ADMINISTRATORS APPOINTED) (RECEIVERS & MANAGERS APPOINTED) & THE COMPANIES LISTED IN SCHEDULE 1

First Plaintiff

ABC LEARNING CENTRES LIMITED (ADMINISTRATORS APPOINTED) (RECEIVERS & MANAGERS APPOINTED) & THE COMPANIES LISTED IN SCHEDULE 1

Second Plaintiff

JUDGE: EMMETT J

DATE OF ORDER: 22 DECEMBER 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. Directs, pursuant to s 447D of the Corporations Act 2001 (Cth) (the Act), that the First Plaintiffs may properly and justifiably execute and give effect to a deed substantially in the form of Document 4 in Exhibit PW-3 in this proceeding (the Deed). 2. Orders, pursuant to s 447A of the Act, that Part 5.3A of the Act shall operate in relation to each of the Second Plaintiffs as if, in an application by the First Plaintiffs for directions pursuant to s 447D(1) of the Act in relation to the Deed, the Court may give a direction that the First Plaintiffs may properly and justifiably execute and give effect to the Deed. 3. Orders, pursuant to s 447A of the Act, that Part 5.3A of the Act shall operate in relation to each of the Second Plaintiffs as if: (a) To the extent that the First Plaintiffs' indemnity under s 443D of the Act is insufficient to meet any debt to the Commonwealth of Australia (the Commonwealth) under the Deed, the First Plaintiffs will not be personally liable to repay such debt to the extent of that insufficiency; (b) Any debt to the Commonwealth under the Deed is given the same priority in the payment of the debts of the relevant Second Plaintiff during the administration of that company as it would have if that company had been in liquidation and the debt of the relevant Second Plaintiff had the priority governed and provided for under ss 556 and 560 of the Act; and (c) Sections 444DA(2) and 444DA(5) do not apply in respect of funds advanced by the Commonwealth pursuant to the provisions of the Deed. 4. Grants liberty to apply to any person who can demonstrate sufficient interest to modify or discharge these orders upon appropriate notice being given to the Plaintiffs and the Commonwealth. 5. Notes that the Commonwealth has undertaken to pay the Plaintiffs' costs of this application. 6. Orders that the Plaintiffs' costs are to be costs in the administration of the Second Plaintiffs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.