FEDERAL COURT OF AUSTRALIA
Australian Executor Trustees Ltd v Provident Capital Ltd (No 4)
[2012] FCA 1506
Citation: Australian Executor Trustees Ltd v Provident Capital Ltd (No 4) [2012] FCA 1506 Parties: AUSTRALIAN EXECUTOR TRUSTEES LIMITED v PROVIDENT CAPITAL LIMITED File number: NSD 808 of 2012 Judge: RARES J Date of judgment: 17 December 2012 Legislation: Corporations Act 2001 (Cth) ss 283HA, 283HB(1)(g), 424 Cases cited: Australian Executor Trustees Limited v Provident Capital Limited (No 3) (2012) FCA 1253 referred to Date of hearing: 17 December 2012 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 8 Counsel for the Plaintiff: Mr J Hynes Solicitor for the Plaintiff: Henry Davis York Counsel for the Amicus Curiae
(Australian Securities & Investments Commission):Ms R A Howitt
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 808 of 2012
BETWEEN: AUSTRALIAN EXECUTOR TRUSTEES LIMITED
Plaintiff
AND: PROVIDENT CAPITAL LIMITED
Defendant
JUDGE:
RARES J
DATE OF ORDER:
17 DECEMBER 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Pursuant to section 283HB(1)(g) and section 424 of the Corporations Act 2001 (Cth) the defendant, by its receivers, Marcus William Ayres, Philip Patrick Carter and Anthony Milton Sims (the Receivers), would be justified in amending clause 11.5 of the Debenture Trust Deed dated 11 December 1998 (as amended from time to time) (the Deed) so that it reads as follows: (with the amendments underlined only for the purpose of identifying them in these orders):
Notwithstanding clause 2.3, subject always to the rights of persons whose claims to payment are preferred by law, all money received by the Trustee or any receiver from the Company, as a consequence of enforcement of the Trustee's rights against the Company, must be applied in the following order:
11.5.1first, in payment of the Trustee's remuneration and other expenses under this deed;
11.5.2second, in payment of the receiver's remuneration and expenses;
11.5.3third, in payment to the Trustee for the account of debenture holders in respect of interest accrued but unpaid on current debentures up to (and including) 3 July 2012;
11.5.4fourth, in payment to the Trustee for the account of debenture holders in respect of the face value of current debentures;
11.5.4Afifth, when the face value of current debentures has been repaid in full, in or towards payment to the Trustee for the account of debenture holders in respect of interest accrued but unpaid on current debentures after 3 July 2012 (such interest to accrue after 3 July 2012 at a flat rate of 10% per annum on each current debenture on the daily balance of the face value remaining unpaid of that debenture despite any provision to the contrary in this deed or in the Terms of Issue of any debenture); and
11.5.5sixth, when the amounts referred to in clause 11.5.4A have been paid in full, any balance to the Company.
(the Amendment).
2.Pursuant to section 283HA of the Corporations Act 2001 (Cth)…
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- Case
- [2012] FCA 1506
- Decision Date
CaseChat Overview and Summary
The court found that the receivers had acted within their authority under sections 283HA and 283HB(1)(g) of the Corporations Act 2001 (Cth) by amending the trust deed to modify the repayment priority. The receivers had convened a meeting of debenture holders, where a significant majority voted in favour of the proposed amendments. The Australian Securities and Investments Commission, appearing as an amicus curiae, did not oppose the amendment, stating that there had been adequate disclosure and that the majority vote should be upheld. The court concluded that the receivers were justified in amending the trust deed as proposed and in making payments to debenture holders according to the new terms.
The court's decision was based on the overwhelming support from debenture holders and the receivers' careful handling of the meeting and voting process. The amendment ensured that the trust deed reflected the likely financial reality, prioritising certain payments to secure some recovery for debenture holders. Consequently, the court made orders approving the amendment and authorising the receivers to proceed with the changes and subsequent payments.
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