Helou v Mulligan Pty Limited

Reported Decision: 57 NSWLR 74
(2003) 21 ACLC 1220

Court of Appeal

CITATION:	HELOU v MULLIGAN PTY LIMITED [2003] NSWCA 92
HEARING DATE(S):	1 April 2003
JUDGMENT DATE:	24 April 2003
JUDGMENT OF:	Mason P at 1; Sheller JA at 38; Davies AJA at 39
DECISION:	Appeal dismissed.
CATCHWORDS:	Creditors - Personal guarantee for monies "due and payable" - Deed of Administration - moratorium on enforcement proceedings against company - whether debt still "due and payable"- whether guarantee still operative (D)
LEGISLATION CITED:	Corporations Act 2001, ss444D, 444E, 444G, 444H
CASES CITED:	Baldry v Jackson [1976] 2 NSWLR 415 at 417 Clyne v Deputy Commissioner of Taxation (1981) 150 CLR 1 Commercial Banking Co of Sydney Limited v Gaty [1978] 2 NSWLR 271 Deputy Commissioner of Taxation v Peacock [1980] 2 NSWLR 130 Ehrenfeld v Oriana Nominees Pty Ltd [1999] WASCA 222 Gan v Sanders (1994) 15 ACSR 298 Guthrie v Motor Credits Ltd (1963) 37 ALJR 167 Hill v Anderson Meat Industries Ltd [1971] 1 NSWLR 868 [1972] 2 NSWLR 704 (CA) In the matter of Carey Builders Pty Ltd (1997) 23 ACSR 754 Jowitt v Callaghan (1938) 38 SR(NSW) 512 McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457 Peacock v Commonwealth Trading Bank of Australia [1979] 2 NSWLR 412 Perrott v Newton King Ltd [1933] NZLR 1131 Quainoo v New Zealand Breweries Ltd [1991] 1 NZLR 161
PARTIES :	Hanibaal HELOU v P D MULLIGAN PTY LIMITED
FILE NUMBER(S):	CA 40262/02
COUNSEL:	Appellant: R G Forster SC Respondent: J Simpkin SC
SOLICITORS:	Appellant: Ehahoud Kalouche & Assoc Respondent: Gadens

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 10926/01
LOWER COURT JUDICIAL OFFICER :	Puckeridge DCJ

CA 40262/2002
DC 10926/01

MASON P
SHELLER JA
DAVIES AJA

Thursday 24 April 2003

Hanibaal HELOU v P D MULLIGAN PTY LTD

FACTS:

The appellant Helou was a director and shareholder of Belmore Meats Prestons Pty Ltd. At the time of its entry into a Deed of Arrangement on 13 September 2001, Belmore Meats still owed the respondent P D Mulligan

$107,304.98 which was due to be paid by 22 June 2001 for meat supplied and delivered. The respondent sued the appellant pursuant to his personal guarantee for “payment of all and any monies due and payable“ by Belmore to the respondent.

At trial before Puckeridge DCJ in the District Court, Helou contended that the money ceased to be “due and payable” from 13 September 2001 because P D Mulligan was a creditor bound by the Deed which, in accordance with the Corporations Act 2001, established a moratorium period for commencing or continuing any proceedings or enforcement process against the company without leave of the court.

In the District Court, Puckeridge DCJ held that the Deed of Arrangement did not release the rights of the creditor against any guarantor and therefore P D Mulligan was entitled to proceed against Helou on the basis of his personal guarantee.

The appellant accepted this reasoning, but argued before the Court of Appeal that the…