Hur v Samsun Logix Corporation - [2009] FCA 372

FEDERAL COURT OF AUSTRALIA
Hur v Samsun Logix Corporation [2009] FCA 372
CORPORATIONS – application under Cross-Border Insolvency Act 2008 (Cth) – Korean insolvency proceeding recognised as a foreign proceeding and a foreign main proceeding pursuant to the Model Law on Cross-Border Insolvency contained in Schedule 1 to the Cross-Border Insolvency Act
Cross-Border Insolvency Act 2009 (Cth), s 13, arts 2, 15, 16, 17, 20 and 21 of Schedule 1
Federal Court (Corporations) Rules 2000, r 15A.3, 15A.6, 15A.7
HYUN-CHUL HUR, IN HIS CAPACITY AS THE FOREIGN REPRESENTATIVE OF SAMSUN LOGIX CORPORATION v SAMSUN LOGIX CORPORATION
NSD 210 of 2009
JACOBSON J
17 APRIL 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 210 of 2009

BETWEEN:
HYUN-CHUL HUR, IN HIS CAPACITY AS THE FOREIGN REPRESENTATIVE OF SAMSUN LOGIX CORPORATION
Plaintiff

AND:
SAMSUN LOGIX CORPORATION
Defendant

JUDGE:

JACOBSON J

DATE OF ORDER:

17 APRIL 2009

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.Pursuant to clause 1 of article 17 of Schedule 1 of the Cross-Border Insolvency Act 2008 (Cth) (“Act”), the proceeding in the Seoul Central District Court, 3rd Bankruptcy Division, Case 2009Hoehap 24, Rehabilitation (“Korean Proceeding”), by which the plaintiff was appointed receiver of the defendant on 6 March 2009, be and is hereby recognised as a foreign proceeding.
2.Pursuant to clause 2 of article 17 of Schedule 1 of the Act, the Korean Proceeding be and is hereby recognised as a foreign main proceeding.
3.Pursuant to article 21 of Schedule 1 of the Act, except with the leave of this court or the plaintiff’s written consent:
(a)       No person may enforce a charge on the property of the defendant.
(b)       If:
(i)        property of the defendant is subject to a lien or pledge; and
(ii)property of the defendant is in the lawful possession of the holder of the lien or pledge;

then, the holder of the lien or pledge
(iii) may continue to possess the property; and
(iv) cannot sell the property or otherwise enforce the lien or pledge.
(c)The owner or lessor of property that is used or occupied by, or in the possession of, the defendant, cannot take possession of the property or otherwise recover it.
(d)A proceeding in any court against the defendant, or in relation to any of its property, cannot be begun or proceeded with.
(e)No enforcement process in relation to property of the defendant can be begun or proceeded with.

4.In satisfaction of sub-rules (c) and (d) of Rule 15A.7(1) of the Federal Court (Corporations) Rules 2000, the plaintiff is directed to:
(a)publish a notice of the making of this order in accordance with Form 21 in a daily newspaper circulating generally in Australia; and
(b)send a notice of the making of this order in accordance with Form 21 to each Australian creditor of the defendant known to the plaintiff.

5.Liberty to any person to apply to the Court in respect of order 3.

Note:Settlement and entry of orders is dealt with in Order 36…

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: [2009] FCA 372
Decision Date: 17 April 2009

CaseChat Overview and Summary

The matter of Hur v Samsun Logix Corporation before the Federal Court of Australia involved recognition and enforcement of foreign insolvency proceedings under the Cross-Border Insolvency Act 2008. The plaintiff, Hur, sought recognition of a Korean proceeding in which he had been appointed as a receiver over the defendant’s assets. The court was required to determine whether the foreign insolvency proceeding should be recognised as a foreign main proceeding and whether certain injunctive relief should be granted to prevent interference with the foreign proceeding.

The legal issues before the court included the recognition of the foreign proceeding under the Act, the granting of injunctive relief to support the foreign proceeding, and the imposition of publication requirements. The court considered whether the Korean proceeding met the criteria for recognition under the Act and whether the granting of injunctive relief would be appropriate to prevent interference with the foreign proceeding.

The court found that the Korean proceeding met the criteria for recognition under the Act, including that it was a foreign main proceeding and that the plaintiff had the requisite standing. The court recognised the Seoul Central District Court proceeding as a foreign main proceeding and granted injunctive relief to prevent enforcement of charges, liens, and other proceedings against the defendant's property in Australia. The court also directed the plaintiff to publish a notice of the order in Australian newspapers and to notify known Australian creditors of the defendant. The court held that any person could apply to the court to challenge the injunctive relief, ensuring that the relief was not overly broad.

The Federal Court of Australia ordered the recognition of the Seoul Central District Court proceeding as a foreign main proceeding, granted injunctive relief to prevent interference with the foreign proceeding, and imposed publication requirements on the plaintiff. The court's decision ensured that the foreign proceeding would be supported in Australia, facilitating international cooperation in insolvency matters.

Orders

Orders of the court

1. Pursuant to clause 1 of article 17 of Schedule 1 of the Cross-Border Insolvency Act 2008 (Cth) (“Act”), the proceeding in the Seoul Central District Court, 3rd Bankruptcy Division, Case 2009Hoehap 24, Rehabilitation (“Korean Proceeding”), by which the plaintiff was appointed receiver of the defendant on 6 March 2009, be and is hereby recognised as a foreign proceeding.

2. Pursuant to clause 2 of article 17 of Schedule 1 of the Act, the Korean Proceeding be and is hereby recognised as a foreign main proceeding.

3. Pursuant to article 21 of Schedule 1 of the Act, except with the leave of this court or the plaintiff’s written consent:

(a) No person may enforce a charge on the property of the defendant.

(b) If:

(i) property of the defendant is subject to a lien or pledge; and

(ii) property of the defendant is in the lawful possession of the holder of the lien or pledge;

then, the holder of the lien or pledge

(iii) may continue to possess the property; and

(iv) cannot sell the property or otherwise enforce the lien or pledge.

(c) The owner or lessor of property that is used or occupied by, or in the possession of, the defendant, cannot take possession of the property or otherwise recover it.

(d) A proceeding in any court against the defendant, or in relation to any of its property, cannot be begun or proceeded with.

(e) No enforcement process in relation to property of the defendant can be begun or proceeded with.

4. In satisfaction of sub-rules (c) and (d) of Rule 15A.7(1) of the Federal Court (Corporations) Rules 2000, the plaintiff is directed to:

(a) publish a notice of the making of this order in accordance with Form 21 in a daily newspaper circulating generally in Australia; and

(b) send a notice of the making of this order in accordance with Form 21 to each Australian creditor of the defendant known to the plaintiff.

5. Liberty to any person to apply to the Court in respect of order 3.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

JACOBSON J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: JACOBSON J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 210 of 2009

JUDGE:	JACOBSON J
DATE OF ORDER:	17 APRIL 2009
WHERE MADE:	SYDNEY