Australian Executor Trustees Ltd v Provident Capital Ltd [2012] FCA 728

FEDERAL COURT OF AUSTRALIA

Australian Executor Trustees Ltd v Provident Capital Ltd [2012] FCA 728 Citation: Australian Executor Trustees Ltd v Provident Capital Ltd [2012] FCA 728

Parties: AUSTRALIAN EXECUTOR TRUSTEES LIMITED v PROVIDENT CAPITAL LIMITED

File number: NSD 808 of 2012

Judge: RARES J

Date of judgment: 29 June 2012

Catchwords: CORPORATIONS – receivers – debentures issued by corporation to the public under a debenture trust deed – application by trustee pursuant to ss 283HB (1)(c) and (d) of the Corporations Act 2001 (Cth) for order that security for debentures be made immediately enforceable and receiver appointed to realise that security, notwithstanding absence of event of default under trust deed – where corporation opposes orders sought by trustee and seeks moratorium under s 283HB1(b) on obligations to pay interest on and repay debentures falling due for next twelve months – where financial position of security for debenture holders in corporation's loan portfolio is deteriorating and 90% of loans non-performing – where corporation likely to have a deficiency of net assets – where there is a need to realise security properties – where appointment of receiver is likely to cause further damage to the corporation – where there have been significant and not isolated failures by corporation to give full and accurate disclosures of its financial position in public financial documents and to Court Held: s 283HB(1) confers a broad remedial and protective jurisdiction on the Court – such provisions are intended to protect members of public who have invested in corporations that raise funds by the issue of debentures – the interests of the corporation's creditors, and in particular debenture holders, require that receiver be appointed