Helenic Pty Ltd as trustee of the Mastrantonis Family Trust v Retail Adventures Pty Ltd (Administrators Appointed) [2013] NSWSC 1973

Supreme Court New South Wales

Medium Neutral Citation: Helenic Pty Ltd as trustee of the Mastrantonis Family Trust v Retail Adventures Pty Ltd (Administrators Appointed) [2013] NSWSC 1973 Hearing dates: 12-15, 18 and 20 November 2013 Decision date: 23 December 2013 Jurisdiction: Equity Division - Corporations List Before: Robb J Decision: (1)Order that the resolution made by the creditors of the first defendant on 2 September 2013 to the effect that the first defendant execute a deed of company arrangement as outlined in the second defendants' Report to Creditors dated 26 August 2013, be set aside. (2)Order that the first defendant be wound up. (3)Order that the winding up shall operate as if s 446A of the Corporations Act 2001 (Cth) applies, and the first defendant is taken to have passed a resolution under s 491 that the first defendant be wound up voluntarily, (4)Order that the second defendants be appointed as the liquidators of the first defendant. (5)Give the parties leave to apply to the court on three days' notice to vary or supplement orders (3) and (4). (6)Reserve the costs of the proceedings for further submissions. Catchwords: DEED OF COMPANY ARRANGEMENT - whether resolution of creditors executing deed of company arrangement be set aside - whether the proposed resolution of creditors unreasonably prejudices the interests of creditors - whether company should be wound up - matters relevant to the making of a winding up order. Legislation Cited: Corporations Act 2001 (Cth) Corporations Regulations 2001 (Cth) Cases Cited: Bidald Consulting Pty Ltd v Miles Special Builders Pty Ltd (2005) 226 ALR 510 Deputy Commissioner of Taxation v Portinex Pty Ltd (2000) 34 ACSR 391 Deputy Commissioner of Taxation v Schmierer [2002] QSC 262 Hagenvale Pty Ltd v Depela Pty Ltd (1995) 17 ACSR 139 Hamilton v National Australia Bank Ltd (1996) 66 FCR 12 Hoath v Comcen Pty Ltd (2005) 53 ACSR 708 Kantfield Pty Ltd v Plastamatic (Aust) Pty Ltd (1994) 14 ACSR 687 Khoury v Zambena Pty Ltd [1999] NSWCA 402 Mediterranean Olives Financial Pty Ltd v Loaders Traders Pty Ltd (subject to deed of company arrangement) (No 2) (2011) 82 ACSR 300 Molit (No 55) Pty Ltd v Lam Soon Australia Pty Ltd (Admin Apptd) (1997) 24 ACSR 47 Network Exchange Pty Ltd v MIG International Communications Pty Ltd (1994) 13 ACSR 544 Public Trustee (Qld) v Octaviar Ltd (subject to a deed of company arrangement) (2009) 73 ACSR 139 Ravenswood Resort Pty Ltd (in liq) v Kammal (2006) 60 ACSR 507 Re Le Meilleur Pty Ltd [2011] NSWSC 1115 Strawbridge v Retail Adventures Pty Ltd (administrators appointed) (2013) 95 ACSR 121 Vero Insurance Ltd v Kassem (2011) 86 ACSR 607 Yeshiva Properties No 1 Pty Ltd [2011] NSWSC 25 Category: Principal judgment Parties: Helenic Pty Ltd as trustee of the Mastrantonis Family Trust formerly trading as Tasty Treats (First plaintiff) JFK Group Company Limited (Second plaintiff) Retail Adventures Pty Limited (Administrators Appointed)(First defendant) Vaughan Strawbridge, John Lethbridge Greig and David John Frank Lombe as Administrators of Retail Adventures Pty Ltd (Administrators Appointed)(Second defendants) Retail Adventures Holdings Pty Ltd (Administrators Appointed)(Third defendant) Vaughan Strawbridge, John Lethbridge Greig and David John Frank Lombe as Administrators of Retail Adventures Holdings Pty Ltd (Administrators Appointed)(Fourth defendants) DSG Holdings Australia Pty Ltd (Fifth defendant) Bicheno Investments Pty Ltd as trustee for the Jan Cameron Trust (Sixth defendant) Representation: Counsel: R Newlinds SC and V Whittaker (Plaintiffs) R Dick SC and F Assaf (Second and fourth defendants) D Studdy SC and E Holmes (Fifth and sixth defendants) Solicitors: Colin Biggers & Paisley (Plaintiffs) Herbert Smith Freehills (Second and fourth defendants) Russells (Fifth and sixth defendants) File Number(s): 2013/275639