PLUTON RESOURCES LTD (RECEIVERS & MANAGERS APPOINTED (IN LIQ) - [2017] WASC 142

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: PLUTON RESOURCES LTD (RECEIVERS & MANAGERS APPOINTED (IN LIQ) [2017] WASC 142

CORAM: MASTER SANDERSON

HEARD: 16 & 23 MARCH 2017

DELIVERED : 19 MAY 2017

PUBLISHED : 26 MAY 2017

FILE NO/S: COR 239 of 2016

BETWEEN: PLUTON RESOURCES LTD (RECEIVERS & MANAGERS APPOINTED (IN LIQ)
First Plaintiff
SAM ANDREW MARSDEN in the Capacity as Joint and Several Liquidator of PLUTON RESOURCES LTD (RECEIVERS & MANAGERS APPOINTED) (IN LIQ)
Second Plaintiff
DERRICK CRAIG VICKERS in the Capacity as Joint and Several Liquidator of PLUTON RESOURCES LTD (RECEIVERS & MANAGERS APPOINTED) (IN LIQ)
Third Plaintiff

Catchwords:

Corporations law - Whether fund created by terminated DOCA subject of security held by secured creditor - Direction sought by liquidator

Legislation:

Corporations Act 2001 (Cth)
Personal Property Securities Act 2009 (Cth)

Result:

Fund not subject to security

Category: A

Representation:

Counsel:

First Plaintiff                  :     Mr W C J Zappia
Second Plaintiff             :     Mr J M Healy
Third Plaintiff                :     Mr J M Healy

Solicitors:

First Plaintiff                  :     HWL Ebsworth Lawyers
Second Plaintiff             :     Minter Ellison Lawyers
Third Plaintiff                :     Minter Ellison Lawyers

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

Australian Gypsum Industries Pty Ltd v Dalesun Holdings Pty Ltd [2015] WASCA 95
Dura (Australia) Constructions Pty Ltd (in liq) v Hue Boutique Living Pty Ltd [2014] VSCA 326
International Air Transport Association v Ansett Australia Holdings Ltd (Subject to a Deed of Company Arrangement) [2008] HCA 3; (2008) 234 CLR 151
Re Great Southern Ltd (in liq); Ex parte Great Southern Ltd (in liq) [2015] WASC 171
Ziziphus Pty Limited v Pluton Resources Ltd (Receivers and Managers Appointed) (Subject to a Deed of Company Arrangement) [2016] WASC 276

MASTER SANDERSON: By originating process dated 8 November 2016 the second and third plaintiffs as joint and several liquidators of Pluton Resources Ltd (Pluton) seek orders under s 511(1) of the Corporations Act 2001 (Cth) (the Act) concerning the entitlement to and distribution of funds paid to Pluton under a deed of company arrangement (DOCA) which was set aside by orders I made on 21 July 2016.
A dispute has arisen between the liquidators and the appointor of the receivers and managers General Nice Recursos Comercial Offshore De Macau Limitada (GNR) and its related entity World Systems Capital Investment Ltd (BVI) (World Systems). World Systems was the DOCA's proponent. The dispute concerns the use of funds remaining following termination of the DOCA.
(On 28 March 2017 the receivers and mangers filed an interlocutory process seeking a declaration and determination under s 424 of the Act. This was done at my suggestion. At the hearing of the liquidators' application counsel for the receiver and manager appeared and opposed the orders sought by the liquidators. There was a spirited contest which meant the liquidators' application was effectively a contested hearing. It seemed to me there was some doubt if I made orders as sought by the liquidators the receivers and managers would have a right of appeal against that decision. By having the parties seek alternative relief, as a matter of procedure, their position was protected and any party dissatisfied with the decision would be in a position to appeal.)
Before going to the nature of the relief sought by the respective parties it is necessary to refer to certain salient facts. A detailed history of the transition of Pluton into liquidation is set out in Ziziphus Pty Limited v Pluton Resources Ltd (Receivers and Managers Appointed) (Subject to a Deed of Company Arrangement) [2016] WASC 276. What follows is a brief summary of the main facts.
On 4 January 2016 a DOCA was entered into by Pluton and the second and third plaintiffs became deed administrators. On 23 May 2016 a variation to the DOCA was voted on by creditors and was approved subject to the additional balance of $3.5 million being paid by World Systems. By 26 May 2016 the full amount of $3.5 million had been paid. On 20 July 2016 the DOCA was executed by all parties.
Under cl 13.1 of the DOCA World Systems, before the execution of the DOCA, was to pay the sum of $1.5 million to the administrators on a non‑refundable basis for the purpose of paying the Admitted Claims of the Participating Creditors in the order of priority specified in s 444DA, s 556, s 560, and s 561 of the Act. In addition World Systems was to pay the sum of $1 million to Pluton and Pluton was to pay those funds to the Former Receivership Creditors again on a non‑refundable basis. Further, World Systems was to pay a sum of $1 million to Pluton and Pluton was to pay those funds to a creditor of Pluton, Watpac, again on a non‑refundable basis. Taken together these payments were defined as the 'First Deed Payment'.
As I have mentioned the DOCA was terminated on 21 July 2016. An amount of $835,021.94 (the Fund) remains to be distributed in respect to the First Deed Payment. What that means is the sum of $1 million was paid to the Former Receivership Creditors and a further $1 million was paid to Watpac. The Fund is left after payment of the Admitted Claims of the Participating Creditors.
Clause 21 of the DOCA deals with 'termination of the deed'. Relevantly cl 21.5(b) which appears under the sub‑heading 'Effect of termination' is in the following terms:
On the termination of this Deed other than in accordance with clause 21.4, the Available Assets will not be available to the Administrators' in respect of the Administrators' Costs, Expenses and Remuneration and will not be available for distribution to Creditors in any subsequent winding‑up, administration or deed of company arrangement in respect of the Company.
Clause 22 of the DOCA then deals with the administrators' remuneration. Essentially they are to be remunerated from the Second Deed Payment. Of course, that Second Deed Payment was never made.
In April 2013 Pluton borrowed an amount of approximately $28.5 million from GNR. The indebtedness under the loan agreements was secured. There are amounts outstanding under the loan agreement between Pluton and GNR and the receivers have been appointed pursuant to a Security Deed entered into by Pluton and GNR on 29 April 2013. GNR registered its security on the Personal Property Securities Register. GNR is what is known as an 'all PAP no exception security holder'. That is to say the security provided covers all 'property, rights and undertakings' of Pluton whether present or future, whether real or personal property, whether tangible or intangible, and no matter where located: see definition of 'secured property' in cl 1.1 of the Security Deed.
Against that background the liquidators seek relevantly the following orders:
1.A declaration and determination under section 511 of the Act that:
a.the funds currently held by the Liquidators comprising the First Deed Payment under the Deed of Company Arrangement dated 20 July 2016 (DOCA) (as that term 'First Deed Payment' is defined in clause 1.1 of the DOCA) which was set aside by order of this Honourable Court dated 21 July 2016 (Fund) are monies of the first plaintiff held by the Liquidators in the Pluton's liquidation and to be paid out in accordance with section 556 of the Act;
b.the Liquidators are entitled to pay out of the Fund the costs incurred by the second and third plaintiffs in their capacities as the former Deed Administrators in administering the Fund;
c.the Liquidators have acted and will be acting justifiably in rejecting Pluton's Receivers and Managers, General Nice Recursos Comercial Offshore De Macau Limitada and World Systems Capital Investment Limited (BVI) (the proponent of the DOCA) claims to the Fund and that they have no entitlement to or security over or in respect of the Fund.
2.Alternatively, a declaration and determination under section 511 of the Act that:
a.the funds currently held by the Liquidators in respect to that First Deed Payment under the Deed of Company Arrangement dated 20 July 2016 (DOCA) (as that term 'First Deed Payment' is defined in clause 1.1 of the DOCA) which was set aside by order of this Honourable Court dated 21 July 2016 (Fund) are to be used to pay the class of participating creditors described in clause 13.1(a) of the DOCA (Participating Creditors) together with the costs and expenses of the Liquidators in Pluton's liquidation;
b.the Liquidators are entitled to pay out of the Fund their costs and expenses in administering the Fund, including the costs incurred by the second and third plaintiffs in their capacities as the former Deed Administrators in administering that Fund;
c.the Liquidators have acted and will be acting justifiably in rejecting Pluton's Receivers and Managers, General Nice Recursos Comercial Offshore De Macau Limitada and World Systems Capital Investment Limited (BVI) (the proponent of the DOCA) claims that they have an entitlement to or security over or in respect of the Fund; and
d.the Liquidators shall call for and adjudicate upon the proof of debts by the Participating Creditors in accordance with the procedure described in clause 17 of the DOCA.
For their part the receivers and managers seek the following orders:
1.A declaration and determination under section 424 of the Act that:
(a)the funds currently held by the liquidators of the first plaintiff (Liquidators) comprising the First Deed Payment under the Deed of Company Arrangement dated 20 July 2016 (DOCA) (as that term 'First Deed Payment' is defined in clause 1.1 of the DOCA) which was set aside by order of this Court dated 21 July 2016 (Fund) are property to which the security interest created by the General Security Deed between the first plaintiff and General Nice Recursos Comercial Offshore de Macau Limitada (GNR) dated 29 April 2013 (Security Deed) attaches;
(b)GNR's security interest in the Fund created by the Security Deed is perfected and enforceable for the purposes of the Personal Property Securities Act 2009; and
(c)the Receivers, having been appointed by GNR under the Security Deed, are entitled to immediately take possession of the Fund as receivers and managers of the property of the first plaintiff.
2.Alternatively, a declaration and determination under section 424 of the Act that:
(a)the Fund is property that is subject to a charge created by the Security Deed in favour of GNR to which the Personal Property Securities Act 2009 does not apply;
(b)the charge against the Fund is enforceable; and
(c)the Receivers are entitled to immediately take possession of the Fund as receivers and managers of the property of the first plaintiff.
There are three matters which are not in dispute. First, each party agrees this is an appropriate case for directions. So far as the liquidators are concerned s 511(1) of the Act applies. So far as the receivers and managers are concerned s 424 of the Act applies. Both parties were content to rely on the principles set out by Beech J in Re Great Southern Ltd (in liq); Ex parte Great Southern Ltd (in liq) [2015] WASC 171 [30] ‑ [31]. I adopted those principles without repeating them. Second, the parties agreed the Fund is the property of Pluton. Thirdly, the parties agreed the liquidators had no lien, equitable or otherwise, over the Fund. Initially there was a dispute between the parties as to the second and third of these matters. But by the time of the hearing the parties had agreed these issues.
Against GNR's claim to be entitled to the Fund pursuant to its security interest the liquidators raised three points. First, they said as World Systems is a subsidiary of GNR to allow GNR to recover the funds when they were said to be irrecoverable would be improper. Effectively that submission required GNR and World Systems to be treated as one and the same entity. The fact is they are two separate companies. It does not emerge from the evidence just what their precise relationship might be. But it is of no consequence. They are two separate entities at law and that being so the fact that GNR claims the Fund and the Fund was contributed by World Systems is enough. There is no substance in this argument.
The second argument is closely related to the first. It really amounts to the liquidators saying it would be contrary to public policy to allow GNR to recover the Fund contributed by World Systems when it was said they were irrecoverable. This submission appeals to vague notions of unfairness which have no place in resolving questions raised by this issue. That argument too can be put to one side.
The third argument is that the Security Deed as it is effected by the Personal Property Securities Act 2009 (Cth) (PPSA), does not capture the Fund.
The liquidators position was advanced on six separate but inter‑related grounds. First, it was said s 444D and s 444G of the Act give binding force to a DOCA over all creditors. Section 444D(1) applies not just to unsecured creditors but also to secured creditors. While that is true s 444D(1) must be read with s 444D(2). These sections are in the following terms:
(1)A deed of company arrangement binds all creditors of the company, so far as concerns claims arising on or before the day specified in the deed under paragraph 444A(4)(i).
(2)Subsection (1) does not prevent a secured creditor from realising or otherwise dealing with the security interest, except so far as:
(a)the deed so provides in relation to a secured creditor who voted in favour of the resolution of creditors because of which the company executed the deed; or
(b)the Court orders under subsection 444F(2).
In this case GNR did vote in favour of the DOCA and the DOCA itself provides that GNR would not move to exercise its security interest during the currency of the DOCA. But the sections do not deal with the rights of a secured creditor such as GNR after the termination of the DOCA. In my view there is nothing in these two sections which would stop GNR enforcing its security.
The second argument again focuses on s 444D(2). The liquidators refer to cl 13.1 of the DOCA which deals with how the DOCA funds contributed by World Systems were to be distributed. None were to be disbursed to GNR. Once again this submission ignores the fact that the DOCA has terminated. Once the termination occurs the directions contained in cl 13.1 no longer apply. So the terms of the DOCA itself cannot be used to shut GNR out of its claim.
The third argument relies upon the terms of the PPSA. Section 8(1)(b) is in the following terms:
[A] lien, charge, or any other interest in personal property, that is created, arises or is provided for under a law of the Commonwealth (other than this Act), a State or a Territory, unless the person who owns the property in which the interest is granted agrees to the interest.
It was the liquidators position that the funds were 'created, arose or were provided for under a law of the Commonwealth' and, therefore, the PPSA did not apply and the Fund was not captured by the Security Deed. Dealing with this argument requires consideration of the nature of a DOCA. In Australian Gypsum Industries Pty Ltd v Dalesun Holdings Pty Ltd [2015] WASCA 95, President Buss put the position this way [59] ‑ [64]:
The legislative policy disclosed by the text of pt 5.3A (in particular, the object stated in s 435A) is that an insolvent company should have an opportunity to achieve a prompt and flexible means of emerging from insolvency or, if that is not possible, to provide a better return for its creditors.
In Australasian Memory Pty Ltd v Brien (2000) 200 CLR 270, Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ observed:
'Part 5.3A contains elaborate and detailed provisions about how and when the administration of a company is to begin and end (ss435C, 436A, 436B, 436C), about the consequences of administration, and about how and when a company may pass from administration to the making of a deed of company arrangement, or into liquidation (ss 439C, 445E and Div 12 of Pt 5.3A (ss 446A to 446B)) or back into the hands of its directors (s 439C) [2].'
Division 10 of pt 5.3A, which comprises s 444A - s 444J, comes into operation if the company's creditors have resolved that the company should execute a deed of company arrangement: s 444A(1). The administration ends upon the execution of the deed: s 435C(1)(b) read with s 435C(2)(a). Division 10 establishes a framework for the continued existence of the company subject to and in accordance with the deed.
A deed of company arrangement is more than a set of promises between those who are parties to it. See MYT Engineering Pty Ltd v Mulcon Pty Ltd (1999) 195 CLR 636, where Gleeson CJ, Gaudron, Gummow and Hayne JJ explained:
'First, it is a document that, on execution, effects a change in status of the company - from a company under administration to a company subject to a deed of company arrangement. Secondly, it is a document that contains terms that bind all creditors of the company 'so far as concerns claims arising on or before the day specified in the deed under paragraph 444A(4)(i)' (s 444D(1)). Those obligations stem from the combined operation of the deed of company arrangement and the [Corporations] Law, not from any contractual bargain between the persons bound, and are imposed on all creditors - not just those who voted in favour of any composition or moratorium reflected in the deed of company arrangement [25]. (original emphasis)'
A deed of company arrangement may be resolved upon, executed and implemented without assistance from the Court.
In Lehman Bros Holdings Inc v City of Swan (2010) 240 CLR 509, French CJ, Gummow, Hayne and Kiefel JJ construed s 444D(1) and held:
(a)Apart from s 444A(4), s 444A(5), s 444DA and s 444DB, the Act does not identify what provisions may or may not be contained in a deed of company arrangement [37].
(b)The reach of the provisions of pt 5.3A which govern deeds of company arrangement is confined by the specification of who is bound by the deed and the respect in which creditors are bound [40]. Section 444G makes a deed binding on the company, its officers and members, and the deed's administrator [41]. Section 444D deals with the position of creditors [41].
(c)Section 444D(1) identifies who is to be bound by a deed of company arrangement (all creditors of the company) but proceeds immediately (by the 'so far as concerns' clause) to limit the extent to which those creditors are to be bound ('so far as concerns' identified claims) [50].
(d)Creditors are bound 'so far as concerns claims' against the company that arose before a specified date [52].
(e)It is s 444D(1) alone which makes a deed of company arrangement binding on creditors [52].
(f)A consequence of creditors being bound under s 444D(1) only to the limited extent identified in that provision is that the assent of some creditors (even a majority by number and value of those who vote) to giving up claims against the company does not bind other creditors to do so. No creditor is bound to give up such claims because the Act does not bind creditors beyond the limit stated in s 444D(1) [53].
(g)It is essential in the application of s 444D(1) to give effect to the words 'so far as concerns claims arising on or before the day specified in the deed' [55].
It is important to bear in mind a deed of company arrangement is a creature of statute. No doubt in the absence of div 10 of pt 5.3A creditors of a company, its directors and shareholders and its administrators could come to an agreement which recapitalised the corporation. But unless all parties agreed to the recapitalisation project the agreement would not be effective - one creditor no matter how small could hold out and scuttle the plan. The idea of a deed of company arrangement is to allow the creditors to effectively resolve what to do with the insolvent company between themselves. The majority rules: see reg 5.6.21(2) and (3). On this basis the Fund is not a security interest and is not the subject of the Security Deed. A disgruntled creditor who does not have the support of the majority of the creditors by number and by value is coerced in accepting a deed of company arrangement. Clearly the Fund created as a consequence of the deed of company arrangement is provided for under the law of the Commonwealth.

It matters not that, as here, the DOCA terminates. Upon termination the character of the Fund does not change. The Fund, although it may be available for distribution other than in accordance with the terms of the DOCA, was still 'created' by the Commonwealth law. In no sense is there a temporal component in the definition.
The fourth argument of the liquidators is that the Fund is not subject to a security interest under s 12 of the PPSA. Section 12(1) reads as follows:
A security interest means an interest in personal property provided for by a transaction that, in substance, secures payment or performance of an obligation (without regard to the form of the transaction or the identity of the person who has title to the property).
In advancing this argument counsel for the liquidators relied heavily on the decision of the Victorian Court of Appeal in Dura (Australia) Constructions Pty Ltd (in liq) v Hue Boutique Living Pty Ltd [2014] VSCA 326. The judgment of the court was delivered by Santamaria JA who gave the following summary of the matters at issue:
In order to secure a stay on the execution of a judgment debt pending the hearing and determination of its appeal, a judgment debtor paid $1,000,000 into an interest bearing account in the joint names of its solicitors and those of the judgment creditor. Under the terms of the order pursuant to which the payment was made, the money was to remain in the account 'pending the hearing and determination of the appeal or further order and to abide the outcome of the appeal'. After the money was paid, the judgment debtor entered into a security deed with a company associated with it. The appeal was unsuccessful. During an application for a further stay of execution pending an application for special leave to the High Court of Australia, the judgment debtor was placed into liquidation. A dispute has arisen as to the entitlements to and disposition of the funds in the interest bearing account.
The judgment creditor has contended that, upon payment into the joint account, the judgment debtor parted outright with ownership of the moneys such that it was incapable of creating any interest in those moneys when it gave a charge over its assets to an associated company. The judgment debtor, first through its liquidator, and, now, through receivers and managers (appointed by the associated company), has contended that the judgment creditor had an interest in the funds in the joint account and that that interest was a 'security interest' within s 12(1) of the Personal Property Securities Act 2009 (Cth) ('the PPSA') with the result that the judgment creditor was a 'secured party' within the PPSA. Under the PPSA, provision is made for the perfection of a 'security interest' by registration. Section 267(2) of the PPSA provides that, in the event that such an interest has not been perfected when the winding up of the debtor is taken to have commenced, the 'security interest' held by the secured party vests in the grantor. Each of the parties now seeks the payment to it of the funds in the joint account [3] ‑ [4].
One of the issues raised by the case was whether or not Hue held a 'security interest' in the fund under s 12 of the PPSA. Santamaria JA set out the issue in the following way:
So far as the PPSA was concerned, Dura argued that, if Hue had acquired any interest in the funds in the joint account, that interest was a security interest under the PPSA of which Dura was the grantor. Because Hue had not perfected that interest when Dura was placed into liquidation the interest vested in Dura immediately before the commencement of the liquidation [96].
His Honour then undertakes a detailed and careful analysis of the relevant provisions of the PPSA and the proper interpretative approach to the provisions. Paragraphs 98 ‑ 125 repay careful reading. I would respectfully adopt what is said in those paragraphs without quoting them in full. What his Honour has to say can be fairly summarised in the following three points:
(1)under s 12 of the PPSA to be a 'security interest' the interest must arise out of a transaction;
(2)the PPSA does not define the word 'transaction'; the word must therefore be given its 'natural and ordinary meaning;
(3)the exclusion from the application of the Act, by operation of s 8, of interest in personal property which arise by operation of law, notwithstanding they may be said to arise from transactions (using that term in its broadest possible sense), strongly suggests that the use of the term 'transaction' in s 12 is confined to consensual transactions inter partes. (That statement of principle is actually [115] of his Honour's judgment.)
After his detailed examination of the Act and relevant authorities his Honour concluded:
In my opinion, because the interest of Hue in the moneys paid into court did not arise out of a consensual transaction between it and Dura, its interest in the funds was not a 'security interest' within s 12 of the PPSA. It follows that Dura was not the 'grantor' of a security interest, nor was Hue a 'secured party' under the PPSA [126].
The question in this case is whether or not the Fund arose as a result of a consensual transaction. In one sense it did. At a meeting of creditors the requisite number of votes - including the vote of GNR - was cast in favour of the company entering into a DOCA. But applying that reasoning it might also be said that in Dura the payment into court was consensual. The Court of Appeal ordered a stay provided money was paid into court. Dura did not have to pay the money into court it chose to do so. In one sense that was a matter of consent. No doubt Dura would have preferred the stay without having to make the payment into court. It would say it was compelled to make the payment to preserve its position.
In this case the Fund established pursuant to the DOCA cannot be said to be a consensual transaction. It is an arrangement which draws upon the law to achieve a certain result - a result that can only be achieved by meeting the terms of the DOCA. Accordingly, I am not satisfied the Fund is a security interest and it follows GNR has no rights against that interest.
The remaining two issues raised by the liquidators can be disposed of quickly. The liquidators say the DOCA did not mandate that any DOCA funds which might be retained by Pluton would be distributed to GNR as a Secured Creditor. That seems to me not to be a relevant factor. Finally it was said that DOCA funds captured by a PPSA security interest or a fixed or floating charge would see a DOCA proposal never being able to be given effect to because DOCA funds could be swept away by a secured creditor as soon as they were paid by a proponent. The liquidators say that would be contrary to public policy. I have already commented on the public policy issue and this is not a case which needs to be determined on that ground.
Consequently the liquidators' argument three and four succeed. GNR's security does not attach to the Fund.
That leaves the question of whether or not the liquidators while they were administrators of the DOCA are entitled to payment of their fees out of the Fund. Under the terms of the DOCA they were not entitled to do so. It is to be noted that the terms of the DOCA itself under cl 21.5(b) specified the administrators would not be entitled to use the Fund for their remuneration.
In support of their position the liquidators advanced two arguments. Paragraph 43 of the liquidators first submissions dated 19 January 2017 in support of the application relevantly puts the positions as follows:
First, there is nothing apparent in the DOCA as to why the administrators would be precluded from recovering their costs, expenses and remuneration upon transition to winding up.
The priority of payments on winding up is dealt with in s 556 of the Act. There is no doubt under s 556(1)(c) absent cl 21.5(b) the administrators would be entitled to their costs and expenses on transition to winding up. It is the clear intention of the DOCA the priority provision in s 556 not apply. In my view there is no basis for any suggestion the contract between the parties as set out in the DOCA does not reflect that position.
The second submission of the liquidators is that it is not open to the parties to the contract as embodied in the DOCA to modify by agreement the operation of s 556. Counsel for the liquidators acknowledged there is no express authority as to whether or not it is possible to contract out of pt 5.6. Counsel pointed out there was no express provision in the part prohibiting contracting out. However, he submitted to allow parties to do so would undermine the clear intention of s 556 and runs counter to public policy.
The only case which touches upon this question is the decision of the High Court in International Air Transport Association v Ansett Australia Holdings Ltd (Subject to a Deed of Company Arrangement) [2008] HCA 3; (2008) 234 CLR 151. There the court concluded that there was nothing in the policy of the Act that would preclude creditors being dealt with differently in an administration effected under pt 5.3A. Based upon that decision I am not satisfied it would run counter to public policy to allow the administrators to contract out of their right to priority under s 556. No one suffers by such an arrangement apart from the administrators who bargained away their right perhaps for good reason. It would be an odd result if that bargain was struck down to the detriment of creditors.
Of course this says nothing about the entitlement of the liquidators to their fees and costs including their costs in relation to this application from the moment Pluton went into liquidation. Clearly the liquidators are entitled to be remunerated.
In accordance with these reasons I would be prepared to make declarations in accordance with pars 1(a) and (c) of the originating process. The alternative put forward in par 2 has about it, in my view, some difficulties and par 1 is the better option. Insofar as par 3 is required there should be an order that effect and I will make orders in terms of pars 4 and 5 with the time in par 5 extended to five business days. I would also order the costs of GNR in relation to the application be paid out of the Fund. I would dismiss GNR's interlocutory process.
These orders should take effect from the date of publication of these reasons. The parties should bring in a minute of orders reflecting these reasons.