McCabe, in the matter of McCabe his capacity as deed administrator of Comlek Group Pty Ltd [2023] FCA 1415

FEDERAL COURT OF AUSTRALIA

McCabe, in the matter of McCabe his capacity as deed administrator of Comlek Group Pty Ltd [2023] FCA 1415 File number: NSD 1276 of 2023

Judgment of: CHEESEMAN J

Date of judgment: 20 November 2023

Catchwords: CORPORATIONS – whether judicial advice should be given pursuant to s 90-15 of the Insolvency Practice Schedule (IPS) as to the proper construction of the Deed of Company Arrangement (DOCA) – whether on proper construction the DOCA has inconsistent terms – Held: relief granted

Legislation: Corporations Act 2001 (Cth) ss 9, 435A, 436A, 445D, Insolvency Practice Schedule s 1-1, 2-15, 90-15

Cases cited: Australian Securities and Investments Commission v Jones [2023] WASCA 130 Fitzgerald v Masters [1956] HCA 53; 95 CLR 420 HDI Global Specialty SE v Wonkana No 3 Pty Ltd [2020] NSWCA 296; 104 NSWLR 634 Hill, in the matter of Autocare Services Pty Ltd (administrators appointed) [2021] FCA 167 Kelly, in the matter of Halifax Investment Services Pty Ltd (in liquidation) (No 8) [2020] FCA 533 Matheson Property Group Pty Ltd (Trustee) v Virgin Australia Holdings Limited [2022] FCA 1243; 165 ACSR 550 McCabe, in the matter of Andrew McCabe and Joseph Hayes in their capacity as joint and several deed administrators of companies listed in Schedule 1 [2023] FCA 1042 MYT Engineering Pty Ltd v Mulcon Pty Ltd [1999] HCA 24; 195 CLR 636 One T Development Pty Ltd v Kreji in his capacity as liquidator of ENA Development Pty Ltd [2023] NSWCA 120 Re Ansett Australia Ltd (No 3) [2002] FCA 90; 115 FCR 409 Re MF Global Australia Ltd (in liq) [2012] NSWSC 994; 267 FLR 27 Re Peak Invest Pty Ltd [2022] NSWSC 1288 Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (in liq) [2019] NSWCA 11; 99 NSWLR 317