Supreme Court New South Wales Medium Neutral Citation: In the matter of MAGS Dubbo Transitional Council; In the matter of OAGS Transitional Council; In the matter of Anglican Development Fund Diocese of Bathurst Board [2013] NSWSC 2030 Hearing dates: 18 December 2013 Decision date: 18 December 2013 Jurisdiction: Equity Division - Corporations List Before: Brereton J Decision: Leave granted to MAGS Dubbo Transitional Council, OAGS Transitional Council, Anglican Development Fund Dioceses of Bathurst Board to file interlocutory process. Catchwords: CORPORATIONS - winding up - liquidators receivers released funds - interim distribution to creditors - proofs of debt Legislation Cited: (NSW) Anglican Church of Australia (Bodies Corporate) Act 1938, s 4 Category: Interlocutory applications Parties: MAGS Dubbo Transitional Council OAGS Transitional Council Anglican Development Fund Dioceses of Bathurst Board Representation: Solicitors: Henry Davis York (applicants) File Number(s): 2013/320122, 2013/295983, 2013/319887 Judgment - EX TEMPORE 1HIS HONOUR: The Anglican Development Fund Diocese of Bathurst Board ("ADF"), the MAGS Dubbo Transitional Council and OAGS Transitional Council are bodies corporate incorporated under the (NSW) Anglican Church of Australia (Bodies Corporate) Act 1938, s 4. 2On 15 October 2013, the Court made orders in respect of the appointment of receivers and managers to the Anglican Development Fund and subsequently, on 23 October 2013 made similar orders in respect of each of MAGS and OAGS. In each case the orders contain provisions to the effect that the receivers are to take all reasonable steps to ascertain the assets and liabilities of the body corporate, including but not limited to any chose in action it may have against any party, that the receivers are to realise the assets of the body corporate, including but not limited to any such chose in action, that the receivers give notice to the creditors of the body corporate to formally prove their debts or claims by not later than a day specified by the receivers in that notice; that the receivers give such notice to every person who to the knowledge of the receivers claims to be a creditor of the body corporate, or appears from the books and records of the body corporate to have a claim as a creditor; that a creditor who fails within the time specified by the receivers to lodge a formal proof of debt or claim shall be informed that they will be excluded from the benefit of any recommendation for payment made by the receivers for the Court; that upon receiving proofs of debt the receivers take all reasonable steps to adjudicate upon them to ascertain the creditors of the body corporate; that if the receivers adjudicate to reject claims of any persons who have lodged a formal proof, the receivers must give those persons notice of their right to make application in this proceeding to be heard on the application of the receivers to make a distribution; that the receivers are to apply to the Court for approval to make any distribution to persons adjudicated to be creditors, or for the compromise or forgiveness of any debt owed to the body corporate; and finally, that the receivers give notice of any such application to all persons who lodged a proof of debt in accordance with those orders. 3In each matter, the receivers now seek leave to file an interlocutory process claiming an order permitting them to make an interim distribution to creditors. In each case, the receivers have realised funds, or will upon distributions from MAGS and OAGS to ADF have realised funds, such as to permit a distribution to be made. The receivers have notified creditors, called for proofs of debt, and adjudicated on proofs of debt. Some proofs have been rejected in whole or in part, and consideration of some others have been deferred. Those creditors whose proofs have been rejected have been notified of the rejection. The receivers have notified and advertised their intention to declare a dividend. 4In each case, provision has been made against the funds available for distribution, first, for admitted priority creditors, and secondly for admitted preferred creditors, and pari passu with them respectively for priority and preferred claims which have not at this stage been admitted, in order to ensure that if ultimately admitted they will rank equally with those that were admitted. Provision is then made for unsecured creditors, again on the basis that provision for those that have not at this stage been admitted will be set aside to ensure that there is a sufficient fund to meet them should they ultimately be admitted. 5On that basis, I am satisfied that it is prudent and appropriate for an interim distribution of the type proposed in each case to be made. The creditors, both admitted and not admitted, of each body corporate have been contacted and have indicated, with one exception, that they either consent to, or do not oppose the proposed distribution. In respect of the KPMG exception, I am satisfied that sufficient funds will be withheld to ensure that its position is not prejudiced by an interim distribution. 6In proceeding 2013/ 312122 (MAGS Dubbo Transitional Council), upon the undertaking of Scot Andrew Atkins, solicitor, to pay the appropriate filing fees, I grant leave to the plaintiffs to file interlocutory process in the form initialled by me, dated this day, and placed with the papers. I direct that the interlocutory process be returnable instanter. I dispense with further service of the interlocutory process. I make orders in accordance with the document entitled Short Minutes of Order, initialled by me dated this day and placed with the papers. 7In proceedings 2013/ 319887 (OAGS Transitional Council), upon the undertaking of Scot Andrew Atkins, solicitor, to pay the appropriate filing fees I grant leave to the plaintiffs to file an interlocutory process in the form initialled by me, dated this day, and placed with the papers. I direct that the interlocutory process be returnable instanter. I dispense with further service of the interlocutory process. I make orders in accordance with the document entitled Short Minutes of Order initialled by me, dated this day, and placed with the papers. 8In proceedings 2013/ 295983 (Anglican Development Fund Diocese of Bathurst Board), upon the undertaking of Scot Atkins, solicitor, to pay the appropriate filing fees, I grant leave to the plaintiffs to file an interlocutory process in the form initialled by me dated this day and placed with the papers. I direct that the interlocutory process be returnable instanter. I dispense with further service of the interlocutory process. I make orders in accordance with the document entitled Short Minutes of Order initialled by me dated this day and placed with the papers. 9In each matter, I direct that the plaintiffs lodge with my Associate a formal minute of the order together with the annexure for entry. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 July 2014