Re BIS Finance Pty Ltd

Case [2017] NSWSC 1713


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: In the matter of BIS Finance Pty Limited; In the matter of Artsonig Pty Limited [2017] NSWSC 1713
Hearing dates:17 November 2017
Decision date: 08 December 2017
Jurisdiction:Equity - Corporations List
Before: Black J
Decision:

The Court orders pursuant to s 411 of the Corporations Act 2001 (Cth) that the Plaintiffs convene meetings of creditors for the purpose of considering and, if thought fit, agreeing to the proposed schemes of arrangement.

Catchwords: CORPORATIONS — Scheme of arrangement — Application for order convening meetings of creditors to consider schemes of arrangement – where two interdependent creditors’ schemes proposed to effect broader restructuring – where schemes provide for debt-to-equity swap, standstill period and variation of loan documentation – whether requirements to order scheme meetings satisfied – appointment of foreign representative.
Legislation Cited: - Corporations Act 2001 (Cth), ss 411, 412(1)
- Securities Act 1933 (US), s 3(a)(10)
- Supreme Court (Corporations) Rules 1999 (NSW), rr 2.13, 3.2
- United States Bankruptcy Code
Cases Cited: - Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485
- Bacnet Pty Ltd v Lift Capital Partners Pty Ltd (in liq) [2010] FCAFC 36; (2010) 183 FCR 384; 78 ACSR 57
- Centro Properties Ltd v PricewaterhouseCoopers [2011] NSWSC 1465; (2011) 86 ACSR 584
- First Pacific Advisors LLC v Boart Longyear Ltd [2017] NSWCA 116; (2017) 121 ACSR 136
- Fowler v Lindholm [2009] FCAFC 125; (2009) 178 FCR 563; 74 ACSR 124
- F T Eastment & Sons Pty Ltd v Metal Roof Decking Supplies Pty Ltd (1977) 3 ACLR 69
- Nicron Resources Ltd v Catto (1992) 8 ACSR 219
- Re Apcoa Parking (UK) Ltd [2014] EWHC 997; 2 All ER (Comm) 1074; 2 BCLC 285
- Re Apcoa Parking Holdings GmbH [2014] EWHC 1867
- Re Atlas Iron Ltd [2016] FCA 366; (2016) 112 ACSR 554
- Re AWB Ltd [2010] VSC 456
- Re Boart Longyear Ltd [2017] NSWSC 537; (2017) 318 FLR 226
- Re Boart Longyear Ltd [2017] NSWSC 567; (2017) 121 ACSR 328
- Re Boart Longyear Ltd (No 2) [2017] NSWSC 1105
- Re Bulong Nickel Pty Ltd [2002] WASC 226; (2002) 26 WAR 466
- Re Capel Finance Ltd [2005] NSWSC 286; (2005) 52 ACSR 601; 23 ACLC 527
- Re Castle Holdco 4 Ltd [2009] EWHC 3919
- Re Cortefiel, SA [2012] EWHC 2998
- Re CSR Ltd [2010] FCAFC 34; (2010) 183 FCR 358; 77 ACSR 592
- Re Dorman Long & Co Ltd; In re South Durham Steel & Iron Company Ltd [1934] Ch 635; [1933] All ER Rep 460
- Re DUET Finance Ltd [2017] NSWSC 415
- Re Foundation Healthcare Ltd [2002] FCA 742; (2002) 42 ACSR 252
- Re Glencore Nickel Pty Ltd [2003] WASC 18; (2003) 44 ACSR 210
- Re HIH Casualty and…

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AGLC
Re BIS Finance Pty Ltd [2017] NSWSC 1713
Case
[2017] NSWSC 1713
Decision Date

CaseChat Overview and Summary

BIS Finance Pty Ltd was the subject of an application by two of its creditors for an order convening meetings of creditors to consider proposed schemes of arrangement. The applicants sought an order under section 411(2)(b) of the Corporations Act 2001 (Cth) to convene meetings of creditors. The defendants, BIS Finance and its related entities, did not oppose the application. The court was required to determine whether the requirements to order the scheme meetings were satisfied, including whether the applicants had standing to make the application and whether the schemes provided for the fair and equitable treatment of creditors.

The court found that the applicants had standing to make the application as they were creditors with provable claims exceeding $20,000 each. The court also found that the proposed schemes provided for the fair and equitable treatment of creditors, as they involved a debt-to-equity swap, a standstill period, and variation of loan documentation. The court noted that the schemes were interdependent and that the proposed restructuring was in the best interests of the company and its creditors. The court was satisfied that the requirements to order the scheme meetings were met and made the orders sought by the applicants.

The court appointed a foreign representative to act on behalf of a creditor that held assets in a foreign jurisdiction. The orders included convening meetings of creditors to consider the proposed schemes of arrangement and appointing the foreign representative. The court also made orders for the service of documents and the provision of information to creditors. The orders were made in accordance with the provisions of the Corporations Act.

Orders

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Background

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Evidence

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Decision

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Ratio Decidendi

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