NSW Caselaw
Reported Decision : (2006) 24 ACLC 1179
New South Wales Supreme Court
CITATION : Brandrill v Newmont Yandal [2006] NSWSC 974
HEARING DATE(S) : 6 April 2006
JUDGMENT DATE : 20 September 2006
JURISDICTION : Equity
JUDGMENT OF : Austin J
DECISION : Orders under s 447A(1) for rectification of deeds of company arrangement and associated deeds
CATCHWORDS : CORPORATIONS - external administration under deeds of company arrangement - parties intended that creditors would be no worse off than in a liquidation - defendant was insured in respect of plaintiff's claim for damages - in liquidation plaintiff would have access to insurance proceeds under s 562 - deed of company arrangement extinguished defendant's liability to plaintiff and arguably destroyed insurance claim - proposal for rectification of deed to put creditors including plaintiff in equivalent position to s 562 - whether court had jurisdiction to make a rectifying orders under s 447A
LEGISLATION CITED : Corporations Act 2001 (Cth) ss 444D, 444E, 444G, 444H, 445A, 447A, 562, 562A
Ansett Australia Ltd v Ansett Australia Ground Staff Superannuation Plan Pty Ltd [2002] VSC 114 Australasian Memory Pty Ltd v Brien (2000) 200 CLR 270 Gibbons v LibertyOne Ltd (in liq) (2002) 41 ACSR 442 CASES CITED : J Aron Corporation v Newmont Yandal Operations Pty Ltd [2004] NSWSC 1145 Mulvaney v Rob Wintulich (1995) 60 FCR 81 Re Pasminco Ltd (Subject to Deed of Company Arrangement) (No 2) [2004] FCA 656 Re Wood Parsons Pty Ltd (in liq) (2002) 43 ACSR 257
Brandrill Pty Ltd (P1, XD4) Lumley General Insurance Limited and CGU Insurance Limited (P2, P3, XD5, XD6) Newmont Yandal Operations Pty Ltd (D1, XC1) PARTIES : Clynton Court Pty Ltd (subject to deed of company arrangement) (D2, XD1) Mark Francis Xavier Mentha and Mark Anthony Korda (D3, D4, XD2, XD3) XL London Market Limited and Zurich Australia Insurance Limited (XD7, XD8) Australian Metals Corporation Pty Ltd, Great Central Holdings Pty Ltd, Great Central Investments Pty Ltd, Eagle Mining Pty Ltd, Newmont Wiluna Mines Pty Ltd, Hunter Resources Pty Ltd, Quotidian No.117 Pty Ltd, Matlock Mining Pty Ltd, Newmont Wiluna Metals Pty Ltd, Newmont Wiluna Gold Pty Ltd, Great Central Mines Pty Ltd, Matlock Castellano Pty Ltd, Newmont Australia Limited (XC2-14)
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