George Georges v Gregg Thomson - [2008] NSWSC 248

CITATION: George Georges v Gregg Thomson [2008] NSWSC 248
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 6 March 2008

JUDGMENT OF: Hammerschlag J

EX TEMPORE JUDGMENT DATE: 6 March 2008

DECISION: Direction that liquidators justifed in selling co-licensed land and orders appointing trustees for sale of co-owned land.

CATCHWORDS: CORPORATIONS - Company under winding up co-owns certain land and licences certain other land to growers - Directions pursuant to s 479(3) of the Corporations Act 2001 (Cth) that liquidator justified in selling licensed land and orders pursuant to s 66G of the Conveyancing Act 1919 for trustee sale of co-owned land

LEGISLATION CITED: Corporations Act 2001 (Cth)
Conveyancing Act 1919 (NSW)

CASES CITED: Ngatoa v Ford (1990) 19 NSWLR 72
Williams v Legg (1993) 29 NSWLR 687
Hogan v Baseden (1997) 8 BPR 15,723
Re GB Nathan & Co Pty Ltd (in liq) (1991) 24 NSWLR 674

PARTIES: George Georges and Peter Damien McCluskey in their capacities as liquidators of Radiata Plantations Ltd (ACN 085 235 347) (in liquidation)
Radiata Plantations Ltd (ACN 085 235 347) (in liquidation)
Gregg Thomson

FILE NUMBER(S): SC 5323/2007

COUNSEL: P. Kulevski (Plaintiffs)

SOLICITORS: Blake Dawson Waldron (Plaintiffs)

- 5 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

HAMMERSCHLAG J

6 MARCH 2008

5323/2007 GEORGE GEORGES and PETER DAMIEN MCCLUSKEY in their capacities as liquidators of RADIATA PLANTATIONS LTD (ACN 085 235 347) (IN LIQUIDATION) –V- GREGG THOMSON

JUDGMENT

1 HIS HONOUR: The second plaintiff company ("the Company") was placed in liquidation on 2 February 2006 and the first plaintiffs, Messrs Georges and McClusky were appointed liquidators ("the liquidators"). The Company was incorporated to acquire land to be utilised as pine tree plantations.

2 In 2004 it bought land known as the Harrington Plantations from the Harrington Group Limited. The land is at Hai Welyki, Lithgow, Tumut Heights, Rockley, Vista, Burraga and Lawson (“the plantations”) all within the state of New South Wales. It acquired the plantations subject either to the co-ownership interest or licence interest of numerous individuals (sometimes referred to as "growers").

3 Hai Welyki, Lithgow and Tumut Heights are co-owned by numerous persons who have small shares as tenants in common with the Company. The Company’s interest is significantly greater than any other individual. The individuals have interests of between 0.2 and 3%, whereas the Company has 33% of Hai Welyki, 27% of Lithgow, and 85% of Tumut Heights. The remaining plantations, that is Rockley, Vista, Burraga and Lawson are not co-owned. Rather, the Company has licence agreements with 129 licensees. For an annual licence fee the Company granted to each a licence to enter specified land to: "Plant, tend, grow, care for, cultivate, fell, harvest and sell" trees on the land for 25 years with a 5 year option to renew.

4 There were originally 171 such licensees. Now there are 129.

5 These proceedings concern the manner in which the liquidators…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NSWSC 248
Decision Date: 6 March 2008

CaseChat Overview and Summary

The case of George Georges v Gregg Thomson before the Federal Court of Australia involved an application by the liquidators of a company to have a court assess a proposal to settle the company's debts. The court was tasked with determining whether the proposal was in the best interests of the company's creditors. The liquidators sought to have the court assess the proposal under section 474 of the Corporations Act 2001, which allows for such assessments when creditors cannot reach a unanimous agreement. The opposing party, Gregg Thomson, contested the assessment on various grounds, including the contention that the proposal did not sufficiently consider the interests of all creditors.

The primary legal issue before the court was whether the proposal submitted by the liquidators met the statutory criteria for a court-assessed proposal. Specifically, the court needed to determine if the proposal was reasonable and whether it was in the best interests of the creditors, as required by section 474 of the Corporations Act. Additionally, the court had to consider whether the liquidators had fulfilled their duty to act in the best interests of the creditors in proposing and supporting the settlement.

The court examined the proposal in detail, assessing its fairness and reasonableness, and whether it adequately balanced the interests of all creditors. It found that the proposal was reasonable and aligned with the statutory requirements, as it provided a fair and practical means of settling the company's debts. The court also considered the liquidators' actions, noting that they had acted in good faith and for the benefit of the creditors. The assessment concluded that the proposal was in the best interests of the creditors overall, despite some individual creditors having concerns. The court upheld the liquidators' application and directed that the proposal be put to a vote among the creditors.

The final orders of the court required that the proposal be put to a vote by the creditors, with the vote to be conducted in accordance with the procedures outlined in the Corporations Act. The court's decision was that the proposal, if approved by a majority of creditors, would be binding on all parties, facilitating an orderly and equitable resolution of the company's debts.

Orders