Australian Executor Trustees Ltd v Provident Capital Ltd (No 4) [2012] FCA 1506

FEDERAL COURT OF AUSTRALIA

Australian Executor Trustees Ltd v Provident Capital Ltd (No 4) [2012] FCA 1506 Citation: Australian Executor Trustees Ltd v Provident Capital Ltd (No 4) [2012] FCA 1506

Parties: AUSTRALIAN EXECUTOR TRUSTEES LIMITED v PROVIDENT CAPITAL LIMITED

File number: NSD 808 of 2012

Judge: RARES J

Date of judgment: 17 December 2012

Legislation: Corporations Act 2001 (Cth) ss 283HA, 283HB(1)(g), 424

Cases cited: Australian Executor Trustees Limited v Provident Capital Limited (No 3) (2012) FCA 1253 referred to

Date of hearing: 17 December 2012

Place: Sydney

Division: GENERAL DIVISION

Category: No catchwords

Number of paragraphs: 8

Counsel for the Plaintiff: Mr J Hynes

Solicitor for the Plaintiff: Henry Davis York

Counsel for the Amicus Curiae Ms R A Howitt (Australian Securities & Investments Commission):

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 808 of 2012

BETWEEN: AUSTRALIAN EXECUTOR TRUSTEES LIMITED

Plaintiff

AND: PROVIDENT CAPITAL LIMITED

Defendant

JUDGE: RARES J DATE OF ORDER: 17 DECEMBER 2012 WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. Pursuant to section 283HB(1)(g) and section 424 of the Corporations Act 2001 (Cth) the defendant, by its receivers, Marcus William Ayres, Philip Patrick Carter and Anthony Milton Sims (the Receivers), would be justified in amending clause 11.5 of the Debenture Trust Deed dated 11 December 1998 (as amended from time to time) (the Deed) so that it reads as follows: (with the amendments underlined only for the purpose of identifying them in these orders): Notwithstanding clause 2.3, subject always to the rights of persons whose claims to payment are preferred by law, all money received by the Trustee or any receiver from the Company, as a consequence of enforcement of the Trustee's rights against the Company, must be applied in the following order: 11.5.1 first, in payment of the Trustee's remuneration and other expenses under this deed; 11.5.2 second, in payment of the receiver's remuneration and expenses; 11.5.3 third, in payment to the Trustee for the account of debenture holders in respect of interest accrued but unpaid on current debentures up to (and including) 3 July 2012; 11.5.4 fourth, in payment to the Trustee for the account of debenture holders in respect of the face value of current debentures; 11.5.4A fifth, when the face value of current debentures has been repaid in full, in or towards payment to the Trustee for the account of debenture holders in respect of interest accrued but unpaid on current debentures after 3 July 2012 (such interest to accrue after 3 July 2012 at a flat rate of 10% per annum on each current debenture on the daily balance of the face value remaining unpaid of that debenture despite any provision to the contrary in this deed or in the Terms of Issue of any debenture); and 11.5.5 sixth, when the amounts referred to in clause 11.5.4A have been paid in full, any balance to the Company. (the Amendment). 2. Pursuant to section 283HA of the Corporations Act 2001 (Cth) the plaintiff would be justified in approving the Amendment. 3. Pursuant to section 283HB(1)(g) and section 424 of the Corporations Act 2001 (Cth) the defendant, by the Receivers, would be justified in making payments to debenture holders in accordance with the terms of the Deed, as amended by the Amendment. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.