In the matter of THO Services Limited [2016] NSWSC 509

Supreme Court New South Wales

Medium Neutral Citation: In the matter of THO Services Limited [2016] NSWSC 509 Hearing dates: Thursday, 17 March 2016 Date of orders: 21 March 2016 Decision date: 21 March 2016 Jurisdiction: Equity - Corporations List Before: Brereton J Decision: 1. Pursuant to (CTH) Corporations Act 2001, s. 447A, Part 5.3A of the Act operate in relation to THO Services Limited as if for the purposes of s 440D(1), a "proceeding in a court" included an arbitration proceeding to the intent that s 440D(1) applies to the arbitration proceedings between the company and the Commonwealth of Australia and the International Chamber of Commerce Court of Arbitration, case number 21321/CYK. 2. Costs of the application be costs in the administration of the company. Catchwords: CORPORATIONS – where "proceeding in a Court" does not include private arbitration proceeding for purposes of (CTH) Corporations Act 2001, s 440D(1) – whether power to make order under s 447A that s 440D operates as if it does include arbitration – whether, if order can be made, whether it ought to be made as a matter of discretion – relevant considerations Legislation Cited: (CTH) Corporations Act 2001, s 440D, s 436A, s 439A, s 440D, s 440D(1), s 444E, s 447A, s 471B. (CTH) International Arbitration Act 1974 (VIC) Commercial Arbitration Act 2011 Cases Cited: Auburn Council v Austin Australia Pty Ltd (2004) NSWSC 141 Australasian Memory Pty Ltd v Brian (2000) 200 CLR 270 Larkden Pty Ltd v Lloyd Energy Systems Pty Ltd [2011] NSWSC 1305 285 ALR 207 Mowbray College v Exhib Design & Construction Pty Ltd (1987) 5 ACLC 478 Re Ansett Australia Ltd [2001] FCA 1806 (2002) 115 FCR 376 Re Vassal Pty Limited [1983] 2 Qd R 769 Category: Procedural and other rulings Parties: Paul Gerard Weston & Geoffrey Trent Hancock as Administrators of THO Services Limited (administrators appointed)(first plaintiff) THO Services Limited (administrators appointed)(second plaintiff) The Commonwealth of Australia (defendant) Representation: Counsel: E Finnane (plaintiffs) O McCoy (defendant)