In the matter of ACN 150 567 098 Pty Ltd (in liquidation) (formerly known as Organic Response Investors Pty Ltd) and ACN 151 527 098 Pty Ltd (in liquidation) (formerly known as Organic Response Pty Ltd) [2019] NSWSC 869

Supreme Court New South Wales

Medium Neutral Citation: In the matter of ACN 150 567 098 Pty Ltd (in liquidation) (formerly known as Organic Response Investors Pty Ltd) and ACN 151 527 098 Pty Ltd (in liquidation) (formerly known as Organic Response Pty Ltd) [2019] NSWSC 869 Hearing dates: 26 June 2019 Decision date: 11 July 2019 Jurisdiction: Equity - Corporations List Before: Black J Decision: Declaration to be made in respect of Note Deed. Declaration sought in respect of ranking of E.ON Loan Agreement and Constellation Loan Agreement not to be made in present form. The parties to bring in a form of orders to give effect to this judgment. Catchwords: CORPORATIONS – winding up – debt subordination – application for declarations in respect of proper construction of convertible note deed and loan agreements – where loan agreements in substantially same form – whether claims of noteholders under note deed subordinated to claims of ordinary creditors – whether claims under loan agreements rank equally with claims of ordinary creditors – whether declarations sought should be made. Legislation Cited: - Corporations Act 2001 (Cth) ss 436A, 511, 556, 563C - Insolvency Practice Schedule (Corporations) s 90-15 Cases Cited: - Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) (2014) 251 CLR 640 - Fitzgerald v Masters (1956) 95 CLR 420 - HP Mercantile Pty Ltd v Hartnett [2016] NSWCA 342 - Kershaw in his capacity as liquidator of Equiticorp Tasman Ltd [2005] NSWSC 313; (2005) 54 ACSR 214 - Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104 - Noon v Bondi Beach Astra Retirement Village Pty Ltd [2010] NSWCA 202 - Re Ansett Australia Ltd [2001] FCA 1439; (2001) 39 ACSR 355 - Re Broens Pty Limited (in liq) [2018] NSWSC 1747 - Re Direct Acceptance Corporation Ltd (recs apptd) (in liq) [2019] NSWSC 395 - Re Dungowan Manly Pty Ltd (in liq) [2017] NSWSC 1771; (2017) 124 ACSR 218 - Re MF Global Australia Ltd (in liq) [2012] NSWSC 994; (2012) 267 FLR 27 - Re Octaviar Administration Pty Ltd (in liq) [2017] NSWSC 1556 - Rinehart v Hancock Prospecting Pty Ltd [2019] HCA 13 - Saxby Soft Drinks Pty Ltd v George Saxby - Beverages Pty Ltd [2009] NSWSC 1486 - Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 Category: Principal judgment Parties: Geoffrey Robert Davis and John Morgan in their capacity as joint and several liquidators of ACN 150 567 098 Pty Ltd (in liquidation) (formerly known as Organic Response Investors Pty Ltd) and ACN 151 527 098 Pty Ltd (in liquidation) (formerly known as Organic Response Pty Ltd) (First Plaintiff) ACN 150 567 098 Pty Ltd (in liquidation) (formerly known as Organic Response Investors Pty Ltd) (Second Plaintiff) ACN 151 527 098 Pty Ltd (in liquidation) (formerly known as Organic Response Pty Ltd) (Third Plaintiff) Christopher Duffield (Defendant) Representation: Counsel: D Krochmalik (Plaintiffs) S Golledge (Defendant)