McCallum, in the Matter of Re Holdco Pty Ltd (Administrators Appointed) (No 2) [2021] FCA 377

FEDERAL COURT OF AUSTRALIA

McCallum, in the Matter of Re Holdco Pty Ltd (Administrators Appointed) (No 2) [2021] FCA 377 File number: VID 285 of 2020

Judgment of: O'BRYAN J

Date of judgment: 21 April 2021

Catchwords: BANKRUPTCY AND INSOLVENCY – where administrators have disposed of property used or in the possession of companies under administration by way of sale pursuant to orders of the Court made under s 44C(2)(c) of the Corporations Act 2010 (Cth) – where the proceeds of sale have been retained to meet the claims of persons who assert ownership or security interests in the property sold – where the administrators claim their costs out of the retained proceeds of sale – where a number of interested parties have made claims to ownership or security interests in the property sold – determination of the relative value of the property sold by administrators – consideration of different valuation methodologies proposed by expert valuers – proper approach to valuation – whether unaccepted offers to purchase an asset are admissible as direct evidence of market value of that asset INTELLECTUAL PROPERTY – whether works done pursuant to technology and marketing services agreements created copyright works – whether the copyright works were sold as part of the property used or in the possession of companies under administration so as to generate some of the sale proceeds – whether relevant services agreements contained a retention of title clause which was a security interest within the meaning of section 12 of the Personal Property Securities Act 2009 (Cth) – whether ownership of copyright works, the subject of the retention of title clause, vested in grantor of the interest EQUITY – whether a vendor's equitable lien arose under a share purchase agreement which provided for the payment of an initial purchase price and the remainder of the purchase price was deferred to a later date – where the share purchase agreement was subsequently varied – whether variations to the share purchase agreement evince an intention to exclude, abandon or waive the lien