Sydney Water Corporation v McGrath [2014] NSWCA 197

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Sydney Water Corporation v McGrath [2014] NSWCA 197 Hearing dates: 12 March 2014 Decision date: 23 June 2014 Before: Macfarlan JA at [1]; Barrett JA at [22]; Ward JA at [120] Decision: Appeal dismissed with costs [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: CORPORATIONS - winding up - whether trial judge erred in deciding not to exercise power conferred by s 562A(4) of the Corporations Act 2001 (Cth) - whether trial judge's exercise of discretion vitiated by material error of fact - whether determination was unreasonable or plainly unjust - whether error in quantification of amount received by insurers for purpose of determining relevant amount had discretion been exercised in favour of insured. Legislation Cited: Corporations Act 2001 (Cth) Third Parties (Rights Against Insurers) Act 1930 (UK) Cases Cited: Amaca Pty Ltd v McGrath (as liquidators of HIH Underwriting and Insurance (Aust) Pty Ltd) [2011] NSWSC 90; 82 ACSR 281 Amaca Pty Ltd v McGrath & Honey (as liquidators of HIH Group of Companies) [2012] NSWSC 176; 87 ACSR 625 Amaca Pty Ltd v McGrath & Honey (as liquidators of HIH Group of Companies) [2012] NSWSC 1523; 92 ACSR 105 AssetInsure Pty Limited v New Cap Reinsurance Corporation Limited [2006] HCA 13; 225 CLR 331 Barton v Atlantic 3 Financial (Australia) Pty Ltd [2004] QSC 376; 212 ALR 348 Chan v Cresdon Pty Ltd [1989] HCA 63; 168 CLR 242 Ebrahimi v Westbourne Galleries Ltd [1973] AC 360 Gye v McIntyre [1991] HCA 60; 171 CLR 609 HIH Casualty and General Insurance Ltd v Building Insurers' Guarantee Corporation [2003] NSWSC 1083; 188 FLR 153 House v R [1936] HCA 40; 55 CLR 499 Krishell Pty Ltd v Nilant and Ors [2006] WASCA 223 McGrath & Anor re HIH Insurance Ltd [2008] NSWSC 9; 26 ACLC 111 Pitt-Owen v Lenin [2006] NSWSC 748 Re HIH Casualty and General Insurance Ltd and Ors [2005] NSWSC 240; 190 FLR 398 Stein v Blake [1996] AC 243 Category: Principal judgment Parties: Sydney Water Corporation (Appellant) Messrs A G McGrath and C J Honey as liquidators of the HIH Group of Companies (First Respondent) HIH Casualty & General Ltd (in liquidation and subject to Schemes of Arrangement) (Second Respondent) Representation: Counsel: J C Sheahan SC/K Rees SC (Appellant) R A Dick SC/R M Foreman (First and Second Respondents) Solicitors: Clayton Utz (Appellant) Ashurst Australia (First and Second Respondents) File Number(s): 2013/206927 Publication restriction: Nil Decision under appeal Jurisdiction: 9111 Citation: [2013] NSWSC 741 Date of Decision: 2013-06-12 00:00:00 Before: Nicholas J File Number(s): 2012/310781