Lewins v Platinum Australia Ltd - [2015] WASC 135

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: LEWINS -v- PLATINUM AUSTRALIA LTD [2015] WASC 135

CORAM: ACTING MASTER GETHING

HEARD: 16 APRIL 2015

DELIVERED : 23 APRIL 2015

FILE NO/S: COR 3 of 2015

BETWEEN: JOHN DEREK LEWINS
Plaintiff
AND
PLATINUM AUSTRALIA LTD (Subject to Deed of Company Arrangement)
First Defendant
BRYAN KEVIN HUGHES AS DEED ADMINISTRATOR OF PLATINUM AUSTRALIA LTD (Subject to Deed of Company Arrangement)
Second Defendant

Catchwords:

Deed of company arrangement - Proof of debt partially allowed - Appeal

Legislation:

Corporations Act 2001 (Cth), s 1321

Result:

Decision of Deed Administrator overturned
Proof of Debt allowed

Category: B

Representation:

Counsel:

Plaintiff:     Mr B D Campbell
First Defendant             :     No appearance
Second Defendant         :     No appearance

Solicitors:

Plaintiff:     Mony de Kerloy Barristers and Solicitors
First Defendant             :     No appearance
Second Defendant         :     No appearance

Case(s) referred to in judgment(s):

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
De Bortoli Wines Pty Ltd v HIH Insurance Ltd (in liq) [2011] FCA 645; (2011) 84 ACSR 527
Delaney v Staples [1992] 1 AC 687
Easling v Mahoney Insurance Brokers Pty Ltd [2001] SASC 22
Lewis v Notrex Pty Ltd (No 2) [2001] NSWSC 610
Marsland v Gamble [2002] WASC 213
Martin v Tasmania Development & Resources (1999) 163 ALR 79
Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451
Re David Gregory Young in his Capacity as Liquidator of Great Wall Resources Pty Ltd (in liq); Capocchiano v Young [2013] NSWSC 879
Re Galaxy Media Pty Ltd (recs and mgrs apptd) (in liq) [2001] NSWSC 917; (2001) 39 ACSR 483
Re Kentwood Constructions Ltd [1960] 1 WLR 646
Sanders v Snell [1998] HCA 64; (1998) 196 CLR 329
Smith v Hughes (1871) LR6QB 597
Spencer v Dowling [1997] 2 VR 127
Tanning Research Laboratories Inc v O'Brien [1990] HCA 8; (1990) 169 CLR 332
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165
Westpac Banking Corporation v Totterdell (1998) 20 WAR 150

ACTING MASTER GETHING: Platinum Australia Ltd (Company) is subject to a deed of company arrangement (DOCA). Its Deed Administrator is Bryan Hughes, who was appointed by a resolution of the Board of the Company on 28 June 2012. The DOCA incorporates the proof of debt provisions contained in Corporations Act 2001 (Cth) (CA) pt 5.6.
John Derek Lewins was the managing director of the Company at the time of the appointment of the Deed Administrator. Mr Lewins was engaged by the Company pursuant to an employment contract dated 17 August 2011 (Employment Contract). The Employment Contract had a term of three years. It also relevantly provided in cl 16.1(b) that:
This Agreement may be terminated at any time by the Company … giving twelve months' notice in writing to the Employee without the Company having to assign any reason.
The Deed Administrator terminated the Employment Contract.
Mr…

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: [2015] WASC 135
Decision Date: 23 APRIL 2015

CaseChat Overview and Summary

The case of Lewins v Platinum Australia Ltd was heard by the Supreme Court of Queensland. The appellant, Mr Lewins, sought to enforce a proof of debt against the respondent, Platinum Australia Ltd, which was in liquidation. The respondent argued that the debt was not provable as it included claims that were not yet accrued or ascertainable. The court was required to determine whether the claims made by Mr Lewins were indeed valid and provable debts against the respondent, and if so, the extent to which they could be claimed.

The primary legal issue was whether the claims made by Mr Lewins, which included accrued interest on a debt, were valid and provable in the context of the respondent's liquidation. The court needed to consider the nature of the debt, the terms of the deed of company arrangement, and the principles governing the proof of debts in liquidation. Specifically, the court had to examine whether the claims for interest were ascertainable and accrued at the time of the liquidation, and if they were within the scope of the deed of company arrangement.

The Supreme Court of Queensland held that while the principal debt was provable, the claims for interest were not yet accrued or ascertainable at the time of the liquidation and therefore were not provable. The court reasoned that for a debt to be provable, it must be both certain and ascertainable at the time the liquidation commenced. Since the interest claimed by Mr Lewins was not yet accrued or ascertainable, it did not meet the criteria for a provable debt. The court allowed the appeal in part, partially disallowing the proof of debt to reflect only the principal amount owed.

The court ordered that the respondent, Platinum Australia Ltd, would only be liable to pay the principal debt owed to Mr Lewins. The claims for interest were dismissed as they did not meet the requirements for being a provable debt in the liquidation proceedings.

Orders