Larkden Pty Limited -v- Lloyd Energy Systems Pty Limited [2011] NSWSC 1567

Supreme Court New South Wales

Medium Neutral Citation: Larkden Pty Limited -v- Lloyd Energy Systems Pty Limited [2011] NSWSC 1567 Hearing dates: 8 December 2011 Decision date: 16 December 2011 Jurisdiction: Equity Division - Commercial Arbitration List Before: Hammerschlag J Decision: Arbitrator's costs award of 12 October 2011 is not a claim arising on or before 13 September 2011 within the meaning of s 444D(1) of the Corporations Act 2001 (Cth) Catchwords: CORPORATIONS - ss 444A(4)(i), 444D(1), 444E(3) and 553(1) Corporations Act 2001 (Cth)- COMMERCIAL ARBITRATION - ss 35(1) Commercial Arbitration Act 2010 (NSW) - where the plaintiffs and the defendant company were parties to arbitration - in respect of disputes arising out of a contract entered into between them in 2001 - where the defendant company goes into voluntary administration and enters into a deed of company arrangement after the arbitration is held but before the arbitrator renders his final award and before he makes a subsequent award requiring the defendant to pay the plaintiffs' costs - whether the costs award is a claim arising on or before the date of voluntary administration or reflects a contingent claim as at that date - held that the costs award is neither a claim arising on or before the date of voluntary administration nor reflects a contingent claim in existence as at that date Legislation Cited: Corporations Act 2001 (Cth) Commercial Arbitration Act 2010 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Bankruptcy Act 1966 (Cth) Cases Cited: Larkden Pty Ltd v Lloyd Energy Systems [2011] NSWSC 268 Larkden Pty Ltd v Lloyd Energy Systems Pty Ltd [2011] NSWSC 1305 Larkden Pty Ltd v Lloyd Energy Systems Pty Ltd [2011] NSWSC 1331 Lehman Brothers Holdings Inc v City of Swan (2010) 240 CLR 509 Brash Holdings Ltd (Administrator appointed) v Katile Pty Ltd [1996] 1 VR 24 Re Walker (2007) 215 FLR 428 McDonald v Commissioner of Taxation (2005) 187 FLR 461 Sons of Gwalia v Margaretic (2007) 231 CLR 160 Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52 cf Southern Cross Mine Management Pty Ltd v Ensham Resources Pty Ltd (2006) 196 FLR 419 Haagmans v Australian Bight Infrastructure Pty Ltd [2010] SASC 337 McLellan v Australian Stock Exchange (2005) 144 FCR 327 Glenister v Rowe [2000] Ch 76 Texts Cited: MGR Gronow, McPherson's Law of Company Liquidation (5th ed) (2006) (Thomson Lawbook, Sydney) Category: Principal judgment Parties: Larkden Pty Limited - Plaintiff Lloyd Energy Systems Pty Limited - Defendant Representation: Counsel: A.S. Bell SC with T.M. Mehigan - Plaintiff S.D. Robb QC with R.C. Scruby - Defendant Solicitors: Allens Arthur Robinson - Plaintiff Bridges Lawyers - Defendant File Number(s): 2011/308556