The Trust Company (Nominees) Limited v Southern Finance Limited, in the matter of Southern Finance Limited [2012] FCA 1339

FEDERAL COURT OF AUSTRALIA

The Trust Company (Nominees) Limited v Southern Finance Limited, in the matter of Southern Finance Limited [2012] FCA 1339 Citation: The Trust Company (Nominees) Limited v Southern Finance Limited, in the matter of Southern Finance Limited [2012] FCA 1339

Parties: THE TRUST COMPANY (NOMINEES) LIMITED v SOUTHERN FINANCE LIMITED

File number: NSD 1909 of 2012

Judge: YATES J

Date of judgment: 26 November 2012

Catchwords: CORPORATIONS – application for relief pursuant to s 283HB of the Corporations Act 2001 (Cth)

Legislation: Corporations Act 2001 (Cth)

Cases cited: Australian Securities and Investments Commission v Bridgecorp Finance Ltd (2006) 58 ACSR 499

Date of hearing: 26 November 2012

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 20

Counsel for the Plaintiff: Mr AW Street SC

Solicitor for the Plaintiff: Ashurst Australia

Solicitor for the Defendant: Ms T Chater of Minter Ellison

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1909 of 2012

IN THE MATTER OF SOUTHERN FINANCE LIMITED ABN 80 007 352 089 BETWEEN: THE TRUST COMPANY (NOMINEES) LIMITED

Plaintiff

AND: SOUTHERN FINANCE LIMITED

Defendant

JUDGE: YATES J DATE OF ORDER: 26 NOVEMBER 2012 WHERE MADE: SYDNEY

THE COURT ORDERS BY CONSENT THAT:

1. Pursuant to section 283HB(1)(b) of the Corporations Act 2001 (Cth), until further order, the Defendant be restrained from paying any money to debenture holders under the Trust Deed for First Ranking Debenture Stock entered into between The Trust Company (Nominees) Limited (the "Plaintiff") and the Defendant and dated 4 July 1997, as amended and supplemented from time-to-time (the "Trust Deed"). 2. Pursuant to section 283HB(1)(f) of the Corporations Act 2001 (Cth), until further order, the Defendant be restrained from: (a) any borrowing, including accepting any investments in debentures issued by the Defendant under the Trust Deed; and/or (b) re-investing any existing investments in debentures issued by the Defendant under the Trust Deed, other than: (i) term investments in respect of which the term matures during the period in which these orders are in effect, as "at call" debentures bearing interest at 2.50% per annum for deposits $49,999 or less and 3.00% per annum for other deposits; and (ii) interest which is payable on term investments which have not yet matured during the period in which these orders are in effect, as additional term debentures which bear interest at the same rates as for the relevant investment. 3. Pursuant to section 283HB(1)(g) of the Corporations Act 2001 (Cth), until further order, any funds received by the Defendant by electronic transfer in respect of borrowing otherwise restrained by order 2 above, be refunded by it to the payor, or to or for the benefit of the person whom the Defendant reasonably believes is the intended beneficiary, within 48 hours of receipt and with written notice of any such refund being provided by the Defendant to the Plaintiff. 4. The matter be re-listed before Yates J as a Corporations List Duty Judge on 4 December 2012 at 9:30 am. 5. The parties have liberty to apply at one days notice. THE COURT FURTHER ORDERS THAT: 6. With reference to the Court's orders in these proceedings dated 23 November 2012: (a) vacate orders 1 and 3; and (b) vary order 2 to exclude the orders made by the Court dated 26 November 2012 and today from any continuing restriction. Note: Settlement and entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.