in the matter of Lehman Brothers Australia Limited (in liq)

Lehman Brothers Australia Limited (LBA), in liquidation, applied for a letter of request to be sent to a United States court to act in aid of proceedings in Australia. The application was made under Articles 25 and 27 of the Cross-Border Insolvency Act 2008 (Cth). The application was concerned with the effect of a flip clause in the Supplemental Trust Deed and the conflicting decisions of the English and United States courts on this issue. The Liquidators of LBA sought to ensure that the United States court would not make any orders that would require BNY to act in a particular way with the collateral or its proceeds until further communication had taken place between the English and American courts. The court was required to decide whether the application should be granted and, if so, what the appropriate form and content of the letter of request should be. Henderson J found that the question of whether or not to send a letter was finely balanced but concluded that the arguments in favour of sending a request outweighed the arguments against it. However, the letter which he agreed to send was less prescriptive than that which Perpetual had sought. In particular, he said the letter should invite Judge Peck not to make any order which would require BNY to act in a particular way or deal in any particular way with the collateral or its proceeds until further communication had taken place between the English and American courts as envisaged by the protocol established between Judge Peck and the Chancellor. Henderson J dismissed the application otherwise.