FEDERAL COURT OF AUSTRALIA Australian Executor Trustees Limited v Provident Capital Limited (Receivers and Managers Appointed) (In Liq) [2014] FCA 1446 Citation: Australian Executor Trustees Limited v Provident Capital Limited (Receivers and Managers Appointed) (In Liq) [2014] FCA 1446 Parties: AUSTRALIAN EXECUTOR TRUSTEES LIMITED v PROVIDENT CAPITAL LIMITED (RECEIVERS AND MANAGERS APPOINTED) (IN LIQ) File number: NSD 808 of 2012 Judge: RARES J Date of judgment: 18 December 2014 Legislation: Corporations Act 2001 (Cth) Federal Court of Australia Act 1976 (Cth) Date of hearing: 18 December 2014 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 7 Counsel for the Respondent: Mr A Henskens SC with Mr J Hynes Solicitor for the Respondent: Henry Davis York IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 808 of 2012 BETWEEN: AUSTRALIAN EXECUTOR TRUSTEES LIMITED Applicant AND: PROVIDENT CAPITAL LIMITED (RECEIVERS AND MANAGERS APPOINTED) (IN LIQ) Respondent JUDGE: RARES J DATE OF ORDER: 18 DECEMBER 2014 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Anthony Milton Sims be retired as a joint and several receiver and manager of Provident Capital Limited (receivers and managers appointed) (Provident). 2. Christopher Clarke Hill be appointed as a joint and several receiver and manager of Provident. 3. The advice, opinion and direction of the Court is that the receivers and managers of Provident would be justified in entering into, and causing Provident to enter into, a deed of indemnity substantially in the form of the document marked for identification 1 in the interlocutory process filed on 11 December 2014 (MFI-1). 4. Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth): (a) MFI-1; (b) the words in paragraph 11(a) of the affidavit of Marcus William Ayres sworn 10 December 2014 (Ayres affidavit) following the words "that AET will provide the Receivers with a further indemnity"; (c) paragraph 11(c) of the Ayres affidavit; (d) paragraph 12 of the Ayres affidavit; (e) annexure B to the Ayres affidavit, are not to be published to any person until further order of the Court. 5. The costs associated with the interlocutory process filed 11 December 2014 be costs in the receivership of Provident. THE COURT NOTES THAT: 6. The ground for order 4 is that the order is in the interests of justice. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 808 of 2012 BETWEEN: AUSTRALIAN EXECUTOR TRUSTEES LIMITED Applicant AND: PROVIDENT CAPITAL LIMITED (RECEIVERS AND MANAGERS APPOINTED) (IN LIQ) Respondent JUDGE: RARES J DATE: 18 DECEMBER 2014 PLACE: SYDNEY REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 This is an application by the receivers and managers of Provident Capital Limited, who have applied for relief in the course of their conduct of the receivership and management of Provident in two respects. 2 First, one of the receivers, Anthony Sims, wishes to retire. The continuing receiver, Marcus Ayres, wishes to have further assistance from another one of the partners in his firm, Christopher Hill, as an additional receiver and manager so that there will be two persons at all times, jointly and severally, conducting the receivership and management of Provident's affairs. 3 I am satisfied that it is appropriate to allow Mr Sims to retire and for him to be replaced by Mr Hill. Both have indicated that there will be an orderly transition in arrangements between them in the handover of the responsibilities that Mr Sims has had. 4 Secondly, the receivers seek judicial advice under s 424 of the Corporations Act 2001 (Cth) and the inherent jurisdiction of the Court with respect to its own officers concerning their proposal to enter into a further deed of indemnity for the conduct of the litigation they have commenced against the current and former directors of Provident in the Supreme Court of New South Wales. 5 The trustee for debenture holders and plaintiff in these proceedings, Australian Executor Trustees Limited, has agreed to provide the receivers with indemnity in addition to the indemnity already granted to them by it in July 2012 relating to the conduct of the proceedings. 6 I am satisfied that the particular arrangements for the provision of that indemnity have commercial confidentiality and sensitivity, including in respect of the conduct of the litigation for which it is given, justifying the making of an order in the interests of justice that the contents of the proposed deed of indemnity and portions of paragraph 11 and the whole of paragraph 12 of Mr Ayres' affidavit of 10 December 2014 ought not be published to any person until further order pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth). 7 For these reasons, I will make orders, first, permitting Mr Sims to retire and replacing him with Mr Hill, secondly, giving the receivers advice that they are justified in entering into a deed of indemnity, substantially in the form of the document that I have marked for identification in this application and, thirdly, providing that the costs of the interlocutory process be costs in the receivership of Provident. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 21 January 2015