In the matter of HIH Casualty & General Insurance Limited (in liquidation and subject to schemes of arrangement); In the matter of HIH Underwriting Insurance (Australia) Pty Ltd (in liquidation and subject to a scheme of arrangement) [2015] NSWSC 923

Supreme Court New South Wales

Medium Neutral Citation: In the matter of HIH Casualty & General Insurance Limited (in liquidation and subject to schemes of arrangement); In the matter of HIH Underwriting Insurance (Australia) Pty Ltd (in liquidation and subject to a scheme of arrangement) [2015] NSWSC 923 Hearing dates: 19 June 2015 Decision date: 14 July 2015 Jurisdiction: Equity Division - Corporations List Before: Black J Decision: Held that proceeds were not received under a contract of reinsurance. No order under s 562A(4) of the Corporations Act 2001 (Cth). No order as to costs. Catchwords: CORPORATIONS – winding up – insolvency – proceeds of contract of reinsurance – application for orders under Corporations Act 2001 (Cth) s 562A(4) – where proceeds received as consideration under an assignment agreement in respect of unpaid reinsurance debts – whether proceeds were "in respect of" a reinsurance liability and were "received" by insurers for the purposes of Corporations Act 2001 (Cth) s 562A(1)(b) – whether proceeds received "under a contract of reinsurance" – whether "just and equitable" to make orders sought by the Plaintiffs Legislation Cited: - Corporations Act 2001 (Cth) Pt 5.6 div 6, ss 536, 555, 556, 562A, 562A(1), 562A(2), 562A(3), 562A(4), 562A(5) Cases Cited: - Amaca Pty Ltd (under NSW administered winding up) v McGrath (as liquidators of the HIH Group of companies) [2012] NSWSC 176; (2012) 87 ACSR 625 - Amaca Pty Ltd (under NSW administered winding up) v McGrath (as liquidators of the HIH Group of companies) [2012] NSWSC 1523 - Amaca Pty Ltd v McGrath (as liquidators of HIH Underwriting and Insurance (Australia) Pty Ltd) [2011] NSWSC 90; (2011) 82 ACSR 281 - AssetInsure Pty Ltd v New Cap Reinsurance Corporation Ltd (in liq) [2006] HCA 13; (2006) 225 CLR 331 - Chan v Cresdon Pty Ltd [1989] HCA 63; (1989) 168 CLR 242 - Commercial Factors Ltd v Maxwell Printing Ltd [1994] 1 NZLR 724 - Federal Commissioner of Taxation v Sara Lee Household & Body Care (Australia) Pty Ltd (2000) 201 CLR 520 - Grave v Blazevic Holdings Pty Ltd [2010] NSWCA 324; (2010) 79 NSWLR 132 - HIH Casualty & General Insurance Ltd v Building Insurers' Guarantee Corporation [2003] NSWSC 1083; (2003) 202 ALR 610 - Queensland Premier Mines Pty Ltd v French (2007) 235 CLR 81 - Re HIH Casualty and General Insurance Ltd (in liquidation and subject to schemes of arrangement) [2014] NSWSC 1741 - Re HIH Underwriting and Insurance (Australia) Pty Ltd (in liquidation and subject to a scheme of arrangement) [2013] NSWSC 2014 - Re HIH Underwriting Insurance (Australia) Pty Ltd (in liquidation and subject to a scheme of arrangement) [2014] NSWSC 484 - Re HIH Underwriting Insurance (Aust) Pty Ltd (in liq and subject to a scheme of arrangement) [2015] NSWSC 36 - Re McGrath; Re HIH Insurance Limited [2008] NSWSC 9 Category: Procedural and other rulings Parties: 2012/277122 Amaca Pty Ltd (under NSW administered winding up) (First Plaintiff) Ababa Pty Ltd (under NSW administered winding up) (Second Plaintiff) ABN 60 Pty Ltd (under NSW administered winding up) (Third Plaintiff) Messrs A G McGrath & C J Honey as liquidators of the HIH Group of Companies (First Defendant) HIH Casualty & General Insurance Ltd (in liq and subject to schemes of arrangement) (Second Defendant) 2013/378933 Amaca Pty Ltd (under NSW administered winding up) (First Plaintiff) Ababa Pty Ltd (under NSW administered winding up) (Second Plaintiff) ABN 60 Pty Ltd (under NSW administered winding up) (Third Plaintiff) Messrs A G McGrath & C J Honey as liquidators of the HIH Group of companies (First Defendant) HIH Underwriting & Insurance (Australia) Pty Ltd (in liq and subject to a scheme of arrangement) (Second Defendant) Representation: Counsel: K Rees SC (Plaintiffs) D G Healey (Defendants)