Newmetal Mines Limited; ex parte Laurence Brian Hunter and Peter Bernard Allen [1999] NSWSC 882

New South Wales Supreme Court CITATION : Newmetal Mines Limited; ex parte Laurence Brian Hunter and Peter Bernard Allen [1999] NSWSC 882 CURRENT JURISDICTION : Equity FILE NUMBER(S) : 2983/83 HEARING DATE(S) : 30/08/99 JUDGMENT DATE : 30 August 1999

PARTIES : In the matter of Newmetal Mines Limited and the Companies (NSW) Code Laurence Brian Hunter and Peter Bernard Allen (Applicants) JUDGMENT OF : Santow J

COUNSEL : J Priestley (Applicants) ex parte SOLICITORS : Kemp Strang (Applicants) CATCHWORDS : CORPORATIONS LAW - Scheme of Arrangement - Judicial advice ACTS CITED : Trustee Act 1925 (NSW), s63 DECISION : Judicial advice given.

REVISED — 31 August, 1999 IN THE SUPREME COURT OF NEW SOUTH WALES IN EQUITY

SANTOW J

No. 2983/83 In the matter of Newmetal Mines Limited and the Companies (NSW) Code Laurence Brian Hunter and Peter Bernard Allen Applicants

JUDGMENT — ex tempore 30 August 1999

1 What follows are my reasons for making the orders by way of judicial advice under s63 of the Trustee Act 1925 (NSW). 2 Attached to this judgment is a chronology of the relevant events. Essentially what has happened is that back in October 1984, a scheme of arrangement contemplated that certain monies be paid to the relevant overseas shareholder beneficiaries of the scheme and indeed that is what so far as possible occurred. However, a number of such beneficiaries have failed to present their cheques and some cannot be located. The amounts individually are small. But in overall terms, out of approximately $300,000 realised for overseas shareholders from sale of their shares, $106,000 only was able to be distributed of their entitlement for the reasons mentioned, leaving approximately $190,000 still in the relevant trust fund held by the two applicants as trustee. 3 The trustees of these funds are accountants who wish to be indemnified for their costs and are entitled to be. This is in circumstances where the company is now insolvent. Under the terms of clause 2.7 of the scheme, the company bears the cost of meeting the trustee's costs. The Applicant's submissions note that there is however no provision under clause 2.7 precluding the trustee's right of indemnity at general law from the relevant trust fund. In all the circumstances, including that the trustees forego any profit on their costs, calculated at a 10 per cent margin, and the long passage of time (nearly 15 years) in which the residue of the fund has been left unclaimed, and the fact that about $140,000 will still remain, I am satisfied that the monies standing in the relevant account may be applied as to $48,150.90 to pay all outstanding costs and a further amount be paid for the costs of the present application. 4 The detailed submissions are in the file and are initialled by me for identification and I consider they correctly state the position to the extent necessary to underpin the basis of the orders I have made.