McCabe, in the matter of McCabe his capacity as deed administrator of Comlek Group Pty Ltd

In the case of McCabe, in the matter of McCabe his capacity as deed administrator of Comlek Group Pty Ltd, the applicants sought judicial advice on the proper construction of a Deed of Company Arrangement (DOCA) pursuant to section 90-15 of the Insolvency Practice Schedule (IPS). The Comlek Companies, which were in voluntary administration, had entered into the DOCA, and the applicants, as Deed Administrators, sought clarification on how the Deed Fund should be applied to the Deed Administrators' Costs. The legal issues before the court included whether the DOCA had inconsistent terms and if the judicial advice was warranted under section 90-15 of the IPS.

The court considered whether section 90-15 of the IPS applied to the request for judicial advice on the DOCA's proper construction. It found that the task of construing the meaning of the terms of a deed or contract is inherently legal and thus appropriate for judicial advice under section 90-15 of the IPS. The court then examined the DOCA's terms, specifically the definitions of Comlek Companies' Funds and Deed Administrators’ Costs. It concluded that the plaintiffs were justified in applying the Deed Fund to the Deed Administrators' Costs according to the terms of the DOCA.

The court's reasoning was based on the principles of interpretation articulated in Matheson Property Group Pty Ltd (Trustee) v Virgin Australia Holdings Limited. It emphasised the need to focus on the terms of the DOCA itself but also to consider the evident purpose of the arrangements recorded in the DOCA. The court found that there was no inconsistency in the terms of the DOCA and that the proper construction supported the application of the Deed Fund to the Deed Administrators' Costs. The court made orders allowing the applicants to apply the Deed Fund to the Deed Administrators' Costs, with provisions for interested parties to apply to vary or amend the orders within specified time frames.

In summary, the court granted the applicants' request for judicial advice on the proper construction of the DOCA, finding that the Deed Fund could be applied to the Deed Administrators' Costs in accordance with the DOCA's terms. The court also ordered that interested parties be given notice of the decision and provided with opportunities to apply to vary or amend the orders.