MYT Engineering Pty Ltd v Mulcon Pty Ltd

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, GUMMOW, KIRBY AND HAYNE JJ

MYT ENGINEERING PTY LIMITED & ORS  APPELLANTS

AND

MULCON PTY LIMITED  RESPONDENT

MYT Engineering Pty Limited v Mulcon Pty Limited (S117-1998)
[1999] HCA 24
13 May 1999

ORDER

1. Appeal allowed with costs.

1. Orders of the Court of Appeal of New South Wales made on 6 August 1997 set aside.

1. In lieu thereof order:

(a)    Appeal to the Court of Appeal allowed with costs.

(b)    Orders of Bryson J made on 13 June 1996 set aside.

(c)In lieu thereof declare that the deed of company arrangement dated 28 September 1994 made between Martin John Green, Grant Edmonds, Robert Pullen, MYT Engineering Pty Limited ("the company") and Mulcon Pty Limited is not void for want of execution by the company in accordance with Pt 5.3A of the Corporations Law.

(d)Plaintiff to pay the defendants' costs of the proceedings before Bryson J.

2.

On appeal from the Supreme Court of New South Wales

Representation:

D P Robinson with C R C Newlinds for the appellants (instructed by Cunich Lawyers)

A I Tonking for the respondent (instructed by Helliars City Solicitors)

Notice:  This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the
Commonwealth Law Reports.

CATCHWORDS

MYT Engineering Pty Limited & Ors v Mulcon Pty Limited

Corporations – Deed of company arrangement – Whether instrument required to be executed as a deed.

Corporations – Deed of company arrangement – Instrument not executed in accordance with company's articles of association – Whether instrument made by or on behalf of company – Whether instrument authenticated so as to bind company.

Corporations – Deed of company arrangement – Statute required instrument to be executed within specified time – Whether s 445G(3) of the Corporations Law applies when instrument not executed within specified time.

Words and phrases – "authenticated" – "deed" – "deed of company arrangement" – "executed by or on behalf of the company" – "substantially complied with".

Corporations Law, ss 182, 437C, 444B, 445G.

1. GLEESON CJ, GAUDRON, GUMMOW AND HAYNE JJ. On 28 September 1994, creditors of MYT Engineering Pty Limited ("MYT") resolved, pursuant to s 439C of the Corporations Law of New South Wales ("the Law"), that the company should execute a deed of company arrangement. The Law provides[1] that the administrator of the deed must prepare an instrument setting out the terms of the deed and (by s 444B(2)) that the company must execute the instrument within:

   "(a)   21 days after the end of the meeting of creditors; or

   (b)    such further period as the Court allows on an application made within those 21 days".

   On 29 September 1994, the two members of the board of MYT, Mr Pullen and Mr Edmonds, spoke by telephone.  Mr Pullen and Mr Edmonds were the only shareholders in the company.  (Mr Edmonds is the third appellant in this proceeding; Mr Pullen is not a party.)  Mr Pullen said that he was on his way to the airport…