Lewins v Platinum Australia Ltd

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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

  1. 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.

  2. 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.

  3. The Deed Administrator terminated the Employment Contract.

  4. Mr…

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Details
Case
[2015] WASC 135
Decision Date

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

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Ratio Decidendi

Legal Principle Established

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