In the matter of Antqip Hire Pty Limited (subject to deed of company arrangement) (in liquidation) [2020] NSWSC 487

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Antqip Hire Pty Limited (subject to deed of company arrangement) (in liquidation) [2020] NSWSC 487 Hearing dates: 23 October 2019; last submissions 1 November 2019 Date of orders: 05 May 2020 Decision date: 05 May 2020 Jurisdiction: Equity - Corporations List Before: Rees J Decision: 1. Appointment of the plaintiffs as liquidators of the first and second defendants declared valid. 2. Terminate the deeds of company arrangement. 3. Order deed administrators to remit deed funds to the liquidators. Catchwords: PROCEDURE – leave to bring proceedings under section 444E(3) Corporations Act – leave sought by liquidators –principles at [6]-[7] – leave granted

PROCEDURE – application under section 445D Corporations Act to terminate deed of company arrangement (DOCA) – whether liquidator an "interested person" under section 445D(2)(c) – principles at [85] – liquidator was an "interested person"

CORPORATIONS – defendant companies subject to DOCAs executed in 2014 – appointment of voluntary liquidator in 2019 – whether appointment of liquidator valid – sections 440A(1), 444E, 446A and 446AA Corporations Act – transition to deemed creditors' voluntary winding up – can appoint voluntary liquidator while DOCA on foot – principles at [42]-[52]

CORPORATIONS – construction of a DOCA – principles at [65]-[74] – statutory construction appropriate – poses problems given DOCAs often poorly drafted – DOCA provided company must not appoint liquidator during period of the deed – resolving inconsistency – relevant clause should be construed as subject to the Corporations Act – right to appoint liquidator under Pt 5.5 remained but exercise of that right was an event giving rise to consequences specified in the DOCA – appointment of voluntary liquidator valid and effective