FEDERAL COURT OF AUSTRALIA Vopak Terminal Darwin Pty Limited v Natural Fuels Darwin Pty Limited (Subject to Deed of Company Arrangement) (No 2) [2009] FCA 822 VOPAK TERMINAL DARWIN PTY LIMITED (ACN 107 742 174) v NATURAL FUELS DARWIN PTY LIMITED (ACN 113 034 576) (SUBJECT TO DEED OF COMPANY ARRANGEMENT) and PETER WALKER AND STEVEN SHERMAN IN THEIR CAPACITIES AS DEED ADMINISTRATORS OF NATURAL FUELS DARWIN PTY LIMITED (ACN 113 034 576) NSD 437 of 2009 LINDGREN J 4 AUGUST 2009 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 437 of 2009 BETWEEN: VOPAK TERMINAL DARWIN PTY LIMITED (ACN 107 742 174) Plaintiff AND: NATURAL FUELS DARWIN PTY LIMITED (ACN 113 034 576) (SUBJECT TO DEED OF COMPANY ARRANGEMENT) First Defendant PETER WALKER AND STEVEN SHERMAN IN THEIR CAPACITIES AS DEED ADMINISTRATORS OF NATURAL FUELS DARWIN PTY LIMITED (ACN 113 034 576) Second Defendant JUDGE: LINDGREN J DATE OF ORDER: 31 JULY 2009 WHERE MADE: SYDNEY THE COURT DECLARES THAT: 1. The defendants do not have, and have not since 30 January 2009 had, any title or any rights in or related to the Biodiesel Plant on the Premises (as defined in the orders made on 10 July 2009) (including in relation to any sale proceeds from the sale of the Biodiesel Plant). THE COURT NOTES THAT BY CONSENT 2. There is no order as to costs. 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 NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 437 of 2009 BETWEEN: VOPAK TERMINAL DARWIN PTY LIMITED (ACN 107 742 174) Plaintiff AND: NATURAL FUELS DARWIN PTY LIMITED (ACN 113 034 576) (SUBJECT TO DEED OF COMPANY ARRANGEMENT) First Defendant PETER WALKER AND STEVEN SHERMAN IN THEIR CAPACITIES AS DEED ADMINISTRATORS OF NATURAL FUELS DARWIN PTY LIMITED (ACN 113 034 576) Second Defendant JUDGE: LINDGREN J DATE: 4 AUGUST 2009 PLACE: SYDNEY REASONS FOR JUDGMENT 1 On 10 July 2009 I made declarations and an order in this proceeding: see Vopak Terminal Darwin Pty Limited v Natural Fuels Darwin Pty Limited (Subject to Deed of Company Arrangement) [2009] FCA742 (Earlier Reasons). These reasons are supplementary to the Earlier Reasons. I will use the abbreviations that I used in them. 2 I reserved liberty for Vopak, NFD and the Administrators to seek any further orders, including an order as to costs. The parties agree that there should be no order as to costs. Vopak sought over the opposition of the defendants the following declaration which I made on 31 July 2009: The defendants do not have and have not since 30 January 2009 had, any title or any rights in or related to the Biodiesel Plant on the Premises (as defined in the orders made on 10 July 2009) (including in relation to any sale proceeds from the sale of the Biodiesel Plant). 3 These are the reasons why I made that declaration. 4 Notwithstanding the terms of the declaration, it is consistent with Vopak's submissions that the Biodiesel Plant had become part of the land, which I accepted, that the defendants did not have any interest in the Biodiesel Plant from a time earlier than 30 January 2009. This, however, is of no consequence. 5 The defendants have respectfully submitted that the two declarations made on 10 July 2009 were "proper and appropriate" and that as at and since 30 January 2009, Vopak was and has been entitled to take possession of and sell the "tenant's fixtures", that is to say, the Biodiesel Plant. The Administrators submit, however, that they have a lien over the proceeds of sale for their remuneration and expenses. 6 The Administrators were appointed on 19 September 2008. At that time they became administrators of a company under administration. The DOCA was executed on 14 January 2009. At that time the Administrators became administrators of a DOCA. 7 The distinction between the administrator of a company under administration and the administrator of a DOCA is made in the Act: see, for example, ss 448A, 448B, 448C, 448D, 449A, 449B. 8 The Administrators rely on the right of indemnity given to them by s 443D of the Act and the statutory lien given to them by s 443F of the Act to secure that right of indemnity. That statutory lien is on "the company's property" and is in respect of their role as administrators of NFD under administration from 19 September 2008 to 14 January 2009: the statutory lien is irrelevant to their role as administrators of the DOCA from 14 January 2009. 9 For the purposes of determining the present question, however, I will assume, without deciding, that the Administrators are also entitled to an equitable lien in respect of their remuneration and expenses associated with their role as DOCA administrators. 10 When the Administrators were appointed as administrators of NFD on 19 September 2008, the fixtures (relevantly, the Biodiesel Plant) were part of the land, but NFD had a right, indeed an obligation, to remove them subject to the terms of the Sublease which I discussed in the Earlier Reasons. Any lien that the Administrators had was only over the property of NFD. At all relevant times, the only relevant property of NFD was its right to remove the fixtures and in doing so to convert them into its chattels again. As explained in the Earlier Reasons, that right ceased to exist at midday on 30 January 2009. 11 At no time could the Administrators have had a lien over the Biodiesel Plant itself because it was part of LDC's land. At most, the Administrators could have had a lien over NFD's right to remove the Biodiesel Plant and if that right had been exercised in due time, over the Biodiesel Plant itself, and, no doubt, over any proceeds of a sale of it. But there was no removal in due time, the Biodiesel Plant remained part of LDC's land, and NFD's right to remove it ceased to exist at midday on 30 January 2009. 12 The making of the declaration on 31 July 2009 says nothing as to any in personam right or claim that NFD or the Administrators or any other person may have against Vopak or against any other person. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate: Dated: 4 August 2009 Counsel for the Plaintiff: Mr M J Leeming SC Solicitor for the Plaintiff: Corrs Chambers Westgarth Solicitor for the Defendants: Mr G Cussen of Kemp Strang Date of Hearing: 29, 31 July 2009 Date of Judgment: 31 July 2009 Date of Publication of Reasons: 4 August 2009