In the matter of Bantex Pty Limited (subject to deed of company arrangement) [2018] NSWSC 531

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Bantex Pty Limited (subject to deed of company arrangement) [2018] NSWSC 531 Hearing dates: 18 & 19 April 2018 Decision date: 19 April 2018 Before: Gleeson JA Decision: (1) Order that upon:

(a) execution of the document described as the Share Subscription Agreement that is annexure 'B' to the affidavit of Franck Pierre Frederik Maria Troquay sworn 17 April 2018 or an agreement substantially in the form of that document; and

(b) receipt by Riad Tayeh and Suelen McCallum, in their capacity as the Deed Administrators of Bantex Pty Limited (subject to deed of company arrangement) (Bantex), of the sum of $1.1 million,

leave be granted, pursuant to s 450E(2) of the Corporations Act 2001 (Cth), to Bantex thereafter to omit the words 'subject to deed of company arrangement' after its name on all public documents and all negotiable instruments, until the termination of the Deed of Company Arrangement executed by Bantex, Riad Tayeh, Suelen McCallum and Michael Stathakis on 16 March 2018.

(2) Order that, by 4.00pm on 20 April 2018, the Defendants file an affidavit as to whether they have received the funds referred to in order 1(b).

(3) Order that the Plaintiff pay the Defendants' costs of the proceedings, as agreed or assessed.

(4) Note the agreement of the parties that the Defendants will notify the creditors of Bantex of these orders, in writing, by 4.00pm on 24 April 2018.

(5) Direct that these orders be entered forthwith. Catchwords: CORPORATIONS – voluntary administration – deed of company arrangement – Corporations Act 2001 (NSW), s 450E(2) – requirement that the words "subject to deed of company" be included after the company's name in public documents and negotiable instruments – where dispensation order sought –Corporations Act 2001 (NSW), s 450E(5) – where the deed administrators do not oppose the dispensation – whether the dispensation will result in any significant risk to interests of creditors – exercise of discretion to grant dispensation from the requirement of s 450E(2) Legislation Cited: Corporations Act 2001 (Cth), s 450E Corporations Amendment (Insolvency) Act 2007 (Cth) Personal Property Securities Act 2009 (Cth), s 267 Cases Cited: Allatech Pty Ltd v Construction Management Group Pty Ltd (2002) 41 ACSR 587 De Vries re TMPL Pty Ltd [2009] NSWSC 818 Re Brashs Pty Ltd (1994) 15 ACSR 477 Re Multelink Australia Ltd [2003] NSWSC 836; (2003) 21 ACLR 1661 Firebird Global Masterfund II Ltd v Republic of Nauru (2015) 258 CLR 31; [2015] HCA 43 Category: Principal judgment Parties: Bantex Pty Limited (subject to deed of company arrangement) ACN 000 994 310 (Plaintiff) Riad Tayeh (in his capacity as joint and several deed administrator of Bantex Pty Limited) (First defendant) Suelen McCallum (in her capacity as joint and several deed administrator of Bantex Pty Limited) (Second Defendant) Representation: Counsel: Mr D Krochmalik (Plaintiff)