In the matter of Octaviar Limited (in liq); In the matter of Octaviar Administration Pty Limited (in liq) [2016] NSWSC 16

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Octaviar Limited (in liq); In the matter of Octaviar Administration Pty Limited (in liq) [2016] NSWSC 16 Hearing dates: 15 December 2015 Date of orders: 02 February 2016 Decision date: 02 February 2016 Before: Brereton J Decision: The court should not give directions under s 479(3) which have the effect of retrospectively ratifying what the OA Liquidators have already done. The OA Liquidators would be justified in proceeding henceforth on the basis that they validly entered into the Fortress Funding Deed and that that Deed was valid, effective and binding on OA, notwithstanding the judgment of the Court of Appeal. The OA Liquidators would be justified in adopting the position that OA is entitled to receive payments pursuant to clauses 7.2, 7.3 and 7.5 of the Fortress Funding Deed and should be given advice to that effect. The OA Liquidators would be justified in releasing the Castle Charge, and in not releasing, at least for the time being, the other charges assigned to OA by Fortress. To the extent that the GPLs may require leave to continue to act, where those charges have been assigned to OA, such leave should be granted. The OA Liquidators are entitled to negotiate with the Commissioner a resolution of OA's liability as garnishee without reference to the SPL, and do not need a direction to do so. They should not be authorised to negotiate with the Commissioner, so as to bind OCV and to the exclusion of the SPL, in respect of the OCV Proof. The SPL's powers should be expanded to include (a) calling for, assessing and administering any proof of debt lodged by OA in the estate of OCV, without previous limitations; (b) representing the interests of OCV in respect of any proof of debt that may be appropriate for it to lodge in the estate of OA (including by appealing the decision of Mr Fletcher and Ms Barnet as the liquidators of OA rejecting OCV's proof dated 11 April 2011 for approximately $514m; and (c) representing exclusively the interests of OCV in respect of OCV's claims to be a creditor of OA, and OA's claims to be a creditor of OCV. The GPLs should be required to provide him with such assistance in the winding up of OCV as he reasonably requires in his capacity as SPL. There should not be any formal deferral of the SPL's enlarged powers. Catchwords: PROCEDURE – judgments and orders – superior courts – where deed entered into in reliance on order later set aside on appeal – whether obligations under deed validly incurred – held, they were and remain valid effective and binding notwithstanding appellate judgment