YOUNG (As representative for the Australian Partnership known as ACCENTURE) v SHERMAN & ANOR [2002] NSWCA 281

Reported Decision : (2002) 20 ACLC 1559

New South Wales Court of Appeal

CITATION : YOUNG (As representative for the Australian Partnership known as ACCENTURE) v SHERMAN & ANOR [2002] NSWCA 281 revised - 3/09/2002 FILE NUMBER(S) : CA 40991/01 HEARING DATE(S) : 9 August 2002 JUDGMENT DATE : 28 August 2002

Derek Young (As representative for the Australian Partnership known as Accenture) - Appellant PARTIES : Steven Sherman in his capacity as Administrator of Agriculture.Com Pty Ltd - First Respondent Agriculture.Com Pty Ltd - Second Respondent JUDGMENT OF : Sheller JA at 1; Hodgson JA at 70; Davies AJA at 79

LOWER COURT JURISDICTION : Supreme Court - Equity Division LOWER COURT 20770/01 FILE NUMBER(S) : LOWER COURT Austin J JUDICIAL OFFICER :

COUNSEL : M Aldridge SC/D Ash - Appellants P M Wood/T D Castle - Respondents SOLICITORS : Rodd Peters Lawyers - Appellants Henry Davis York - Respondents CATCHWORDS : CORPORATIONS LAW - deed of company arrangement - premium payment to creditors to enter into deed - premium payment contrary to public policy - exercise of casting vote by administrator - requirement to disclose relevant matters to creditors - Corporations Act 2001 (Cth), ss 445D, 600B - Corporations Regulations 2001 (Cth), reg 5.6.21 LEGISLATION CITED : Corporations Act 2001 (Cth) Corporations Regulations 2001 Australasian Memory Pty Ltd v Brien (2000) 200 CLR 270 Cresvale Far East Ltd (In Liq) v Cresvale Securities Ltd & Ors (2001) 37 ACSR 394 R v Bradford City Metropolitan Council; Ex parte Corris [1990] 2 QB 363 Re Martco Engineering Pty Ltd (Administrator Appointed); Deputy Commissioner of Taxation v Martco Engineering Pty Ltd (1999) 32 ACSR 487 CASES CITED: Re Coalleen Pty Ltd [2000] 1 QdR 245 Paton v Campbell Capital Ltd (1993) 46 FCR 30 Re Jacobs; Ex parte O'Connor (1984) 1 FCR 1 Khoury v Zambeena Pty Ltd [1999] NSWCA 402 Re Bartlett Researched Securities Pty Ltd (1994) 12 ACSR 707 DECISION : 1 Appeal allowed; 2 Set aside the orders of Austin J of 19 November 2001 dismissing the originating process and ordering the plaintiffs to pay the defendants' costs; 3 In lieu thereof, order; (a) that pursuant to s445D the deed of company arrangement made on 12 April 2001 between the company, Mr Sherman, MJ Mason Holdings Pty Limited and SRM Holdings Pty Limited be terminated forthwith; (b) that the proceedings be remitted to the Equity Division for further consideration.; 4 The respondents to pay the appellants' costs of the hearing before Austin J and of this appeal.