In the matter of Ansett Australia Limited and Mentha [2001] FCA 1439
CORPORATIONS – external administration – application under ss 447A and 447D of the Corporations Act (2001) (Cth) – court approval of memorandum of understanding – direction that administrators may properly perform and give effect to memorandum of understanding –where memorandum of understanding provided for substantial payment and release of certain claims – whether administrators had taken into account and considered interests of companies’ creditors – court’s power under s 447A of the Corporations Act (2001) (Cth).
Corporations Act 2001 (Cth): s 437A(1), s 447A, s 447D, s 479(3)
IN THE MATTER OF ANSETT AUSTRALIA LIMITED (ACN 004 209 410) & ORS (All Administrators Appointed) and MARK FRANCIS XAVIER MENTHA and MARK ANTHONY KORDA (As Administrators)
V 3045 of 2001
IN THE MATTER OF HAZELTON AIR CHARTER PTY LIMITED (ACN 065 221 356), HAZELTON AIR SERVICES PTY LIMITED (ACN 000 242 928), HAZELTON AIRLINES LIMITED (ACN 061 965 642) (All Administrator Appointed) and MICHAEL JAMES HUMPRHIS (As Administrator)
V 3046 of 2001
GOLDBERG J 12 OCTOBER 2001 MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 3045 of 2001
IN THE MATTER OF:
ANSETT AUSTRALIA LIMITED
(ACN 004 209 410) & ORS (All Administrators Appointed) (see Schedule A)
AND
MARK FRANCIS XAVIER MENTHA and
MARKANTHONYKORDA (As Administrators)
Plaintiffs
JUDGE:
GOLDBERG J
DATE:
12 OCTOBER 2001
PLACE:
MELBOURNE
THE COURT ORDERS THAT:
1.Pursuant to s 447A of the Corporations Act 2001 (Cth) (“the Act”), s 447D(1) of the Act is to operate in relation to each of the companies set out in Schedule A to the judgment so that in an application by the plaintiffs for directions pursuant to s 447D(1) in relation to a Memorandum of Understanding dated 3 October 2001 referred to in the application, the Court may give a direction that it approves the Memorandum and that the plaintiffs may properly perform and give effect to the Memorandum of Understanding.
2.Pursuant to s 447D(1) of the Act, as it operates in accordance with para 1 of this order, the Court directs that:
(a)The Court approves the Memorandum of Understanding which is Schedule B to the judgment;
(b)The plaintiffs may properly perform and give effect to the Memorandum of Understanding.
3.The costs of all parties who have appeared in the proceeding, save for Air New Zealand Limited and its subsidiaries and directors and Travel Compensation Fund, be costs in the administration of the companies set…
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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AGLC
Re Ansett Australia Ltd [2001] FCA 1439
Case
[2001] FCA 1439
Decision Date
CaseChat Overview and Summary
The case before the court involved Hazelton Air Charter Pty Limited, Hazelton Air Services Pty Limited, and Hazelton Airlines Limited, collectively referred to as the companies, and the plaintiff, who sought approval for a Memorandum of Understanding dated 3 October 2001. The legal issues at hand centred on the interpretation and application of sections 447A and 447D(1) of the Corporations Act 2001 (Cth) to determine whether the court could approve the Memorandum of Understanding and allow the plaintiff to perform and give effect to it.
The court found that section 447A of the Act permitted section 447D(1) to operate in relation to the companies, thereby enabling the court to consider the application for directions in accordance with section 447D(1). The court further held that it had the authority to approve the Memorandum of Understanding and to direct that the plaintiff could properly perform and give effect to it. Consequently, the court approved the Memorandum of Understanding, which was attached as Schedule B to the judgment, and authorised the plaintiff to implement it.
In addition to approving the Memorandum of Understanding, the court ordered that the costs of the plaintiff, the Australian Council of Trade Unions, and its associated parties be treated as costs in the administration of the companies. The court also ordered that the costs of all other parties who had appeared in the proceeding, except for Air New Zealand Limited and its subsidiaries and directors and the Travel Compensation Fund, be costs in the administration of the companies.
Orders
Orders of the court
1. Pursuant to s 447A of the Corporations Act 2001 (Cth) (“the Act”), s 447D(1) of the Act is to operate in relation to each of the companies set out in Schedule A to the judgment so that in an application by the plaintiffs for directions pursuant to s 447D(1) in relation to a Memorandum of Understanding dated 3 October 2001 referred to in the application, the Court may give a direction that it approves the Memorandum and that the plaintiffs may properly perform and give effect to the Memorandum of Understanding.
2. Pursuant to s 447D(1) of the Act, as it operates in accordance with para 1 of this order, the Court directs that:
(a) The Court approves the Memorandum of Understanding which is Schedule B to the judgment;
(b) The plaintiffs may properly perform and give effect to the Memorandum of Understanding.
3. The costs of all parties who have appeared in the proceeding, save for Air New Zealand Limited and its subsidiaries and directors and Travel Compensation Fund, be costs in the administration of the companies set out in Schedule A to the judgment.
1. Pursuant to s 447A of the Corporations Act 2001 (Cth) (“the Act”), s 447D(1) of the Act is to operate in relation to Hazelton Air Charter Pty Limited, Hazelton Air Services Pty Limited and Hazelton Airlines Limited so that in an application by the plaintiff for directions pursuant to s 447D(1) in relation to a Memorandum of Understanding dated 3 October 2001 referred to in the application, the Court may give a direction that it approves the Memorandum and that the plaintiff may properly perform and give effect to the Memorandum of Understanding.
2. Pursuant to s 447D(1) as it operates in accordance with para 1 of this order, the court directs that:
(a) The Court approves the Memorandum of Understanding which is Schedule B to the judgment;
(b) The plaintiff may properly perform and give effect to the Memorandum of Understanding.
3. The costs of the plaintiff and Australian Council of Trade Unions and its associated parties be costs in the administration of the said companies.