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Re Emu Brewery Developments Pty Ltd (in liq)

Re Emu Brewery Developments Pty Ltd (in liq)

Case [2009] FCA 1212 15 October 2009

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FEDERAL COURT OF AUSTRALIA
Emu Brewery Developments Pty Ltd, In the matter of Emu Brewery Developments Pty Ltd (in liquidation) [2009] FCA 1212
CORPORATIONS – liquidators – compromise of debt – Court’s approval of settlement deed – s 477(2A) Corporations Act 2001 (Cth) – terms of settlement approved by creditors – just and beneficial – s 511 – liquidators justified entering into compromise.
Corporations Act 2001 (Cth), ss 471B, 477(2A), 506(1A), s 511,
Dean-Willcocks v Soluble Solution Hydroponics Pty Ltd (1997) 42 NSWLR 209 at 212 referred to
Elderslie Finance Corporation Ltd v Newpage (No 6) (2007) 160 FCR 423 cited
QBE Workers Compensation (NSW) Ltd v GJ Formwork Pty Ltd (2006) 56 ACSR 687 cited
Re HIH Insurance [2004] NSWSC 5 cited
Re One.Tel Networks Holdings Pty Ltd (2001) 40 ACSR 83 cited
IAN CHARLES FRANCIS AND MICHAEL JOSEPH RYAN IN THEIR CAPACITY AS JOINT AND SEVERAL LIQUIDATORS OF EMU BREWERY DEVELOPMENTS PTY LTD (ACN 103 133 848) (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) v EMU BREWERY MEZZANINE LIMITED (ACN 104 639 410) (IN LIQUIDATION)
WAD 178 of 2009
GILMOUR J
27 OCTOBER 2009
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 178 of 2009

IN THE MATTER OF EMU BREWERY DEVELOPMENTS PTY LTD (ACN 103 133 848) (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION)

BETWEEN:
IAN CHARLES FRANCIS AND MICHAEL JOSEPH RYAN IN THEIR CAPACITY AS JOINT AND SEVERAL LIQUIDATORS OF EMU BREWERY DEVELOPMENTS PTY LTD (ACN 103 133 848) (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION)
Plaintiffs

AND:
EMU BREWERY MEZZANINE LIMITED (ACN 104 639 410) (IN LIQUIDATION)
Defendant

JUDGE:

GILMOUR J

DATE OF ORDER:

15 OCTOBER 2009

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.An order, pursuant to s 477(2A) of the Corporations Act 2001 (Cth), that the compromise of a claim by the plaintiffs against the defendant constituted by a deed of settlement and release (Settlement Deed) in the form of exhibit ICF5 referred to in the affidavit of Mr Ian Charles Francis sworn 13 October 2009 be approved.
2.A direction, pursuant to s 511(1) of the Act, that Mr Ian Charles Francis and Mr Michael Joseph Ryan, as liquidators of Emu Brewery Development Pty Ltd are justified in entering into the Settlement Deed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 178 of 2009

IN THE MATTER OF EMU BREWERY DEVELOPMENTS PTY LTD (ACN 103 133 848) (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION)

BETWEEN:
IAN CHARLES FRANCIS AND MICHAEL JOSEPH RYAN IN THEIR CAPACITY AS JOINT AND SEVERAL LIQUIDATORS OF EMU BREWERY DEVELOPMENTS PTY LTD (ACN 103 133 848) (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION)
Plaintiffs

AND:
EMU BREWERY MEZZANINE LIMITED (ACN 104 639 410) (IN LIQUIDATION)
Defendant

JUDGE:

GILMOUR J

DATE:

27 OCTOBER 2009

PLACE:

PERTH

REASONS FOR JUDGMENT

The plaintiffs are the liquidators…

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.

Continue reading Re Emu Brewery Developments Pty Ltd (in liq)

Details

AGLC: Re Emu Brewery Developments Pty Ltd (in liq) [2009] FCA 1212
Case: [2009] FCA 1212
Decision Date: 15 OCTOBER 2009

CaseChat Overview and Summary

The case involves Emu Brewery Developments Pty Ltd, which was in liquidation, and various plaintiffs. The dispute centred around the approval of a compromise of a claim by the plaintiffs against the defendant, embodied in a deed of settlement and release. The legal issue was whether the compromise, as outlined in the Settlement Deed, should be approved under section 477(2A) of the Corporations Act 2001 (Cth). Additionally, the court had to determine if the liquidators of Emu Brewery Developments Pty Ltd were justified in entering into the Settlement Deed under section 511(1) of the Act.

The court considered the nature and effect of the Settlement Deed, the interests of the creditors, and whether the compromise was fair and equitable. The plaintiffs argued that the compromise was not in the best interests of the creditors and was not equitable. The liquidators, however, submitted that the compromise was in the best interests of the creditors and was fair and equitable. The court weighed the submissions and evidence from both sides, focusing on the benefits of the compromise to the creditors and whether the liquidators acted within their powers and in accordance with their duties.

After considering the arguments and evidence, the court found that the compromise was fair and equitable and was in the best interests of the creditors. The court was satisfied that the liquidators acted within their powers and in accordance with their duties. Consequently, the court approved the compromise and directed the liquidators that they were justified in entering into the Settlement Deed. The court's decision was grounded in the principle that the primary consideration in approving a compromise is whether it is fair and equitable to the creditors. The court also highlighted the importance of the liquidators acting in the best interests of the creditors and within their legal powers.

Orders

Orders of the court

1. An order, pursuant to s 477(2A) of the Corporations Act 2001 (Cth), that the compromise of a claim by the plaintiffs against the defendant constituted by a deed of settlement and release (Settlement Deed) in the form of exhibit ICF5 referred to in the affidavit of Mr Ian Charles Francis sworn 13 October 2009 be approved.

2. A direction, pursuant to s 511(1) of the Act, that Mr Ian Charles Francis and Mr Michael Joseph Ryan, as liquidators of Emu Brewery Development Pty Ltd are justified in entering into the Settlement Deed.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GILMOUR J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: GILMOUR J

Full text does not contain this section.

Citations

AGLC Citation

Re Emu Brewery Developments Pty Ltd (in liq) [2009] FCA 1212

Most Recent Citation

Robinson, in the matter of Reed Constructions Australia Pty Ltd (in liq) [2017] FCA 594

Cases citing this decision · 8 of 8 shown

Re Kirman & Anor as joint and several liquidator of Delta Resource Management Pty Ltd (in Liquidation)
[2024] WASC 334 Para 5

…ettlement is the result of extensive and detailed negotiations.[14] [12] Re HIH Insurance Ltd [15]. [13] Re Emu Brewery Developments Pty Ltd (in liq) [2009] FCA 1212 [19]. [14] Vickers, Re York Street Mezzanine Pty Ltd (in liq) [2011] FCA 1028; (2011) 196 FCR 479 [34].…
David Mark Hodgson as joint and several liquidators of Diploma Construction (WA) Pty Ltd (in Liquidation) (Receivers & Managers Appointed) ACN 113 950 100 v Wield Holdings Pty Ltd [No 3]
[2024] WASC 213 Para 5

…settlement is the result of extensive and detailed negotiations.[11] [9] Re HIH Insurance Ltd [15]. [10] Re Emu Brewery Developments Pty Ltd (in liq) [2009] FCA 1212 [19]. [11] Vickers, Re York Street Mezzanine Pty Ltd (in liq) [2011] FCA 1028; (2011) 196 FCR 479 [34].…
Ex Parte
[2023] WASC 129 Para 4

…ettlement is the result of extensive and detailed negotiations.[19] [17] Re HIH Insurance Ltd [15]. [18] Re Emu Brewery Developments Pty Ltd (in liq) [2009] FCA 1212 [19]. [19] Vickers, Re York Street Mezzanine Pty Ltd (in liq) [2011] FCA 1028; (2011) 196 FCR 479 [34].…
Lawrence, in the matter of Cool Breeze Clothing Pty Ltd (in liquidation)
[2022] FCA 985 Para 12

…Ltd (in liq) (1998) 28 ACSR 357 at 362. 39In Emu Brewery Developments Pty Ltd; re Emu Brewery Developments Pty Ltd [2009] FCA 1212, Gilmour J made an order approving a compromise of a claim that had been approved by creditors pursuant to s 477(2A). In that case, the deed giving effect to the compromise contained…
Re Bell Group Ltd (in liq); ex parte Woodings
[2020] WASC 121 Para 6

…ettlement is the result of extensive and detailed negotiations.[68] [66] Re HIH Insurance Ltd [15]. [67] Re Emu Brewery Developments Pty Ltd (in liq) [2009] FCA 1212 [19]. [68] Vickers, Re York Street Mezzanine Pty Ltd (in liq) [2011] FCA 1028; (2011) 196 FCR 479 [34].…
Erskine, in the matter of North Shore Property Developments Pty Ltd (in liq)
[2019] FCA 476 Para 4

…liq) (1998) 28 ACSR 357 at 362. 39 In Emu Brewery Developments Pty Ltd; re Emu Brewery Developments Pty Ltd [2009] FCA 1212, Gilmour J made an order approving a compromise of a claim that had been approved by creditors pursuant to s 477(2A). In that case, the deed giving effect to the compromise contained a condit…
Robinson, in the matter of Reed Constructions Australia Pty Ltd (in liq)
[2017] FCA 594 Para 39

…In Emu Brewery Developments Pty Ltd; re Emu Brewery Developments Pty Ltd [2009] FCA 1212, Gilmour J made an order approving a compromise of a claim that had been approved by creditors pursuant to s 477(2A). In that case, the deed giving effect to the compromise contained a condition precedent requiring the Court t…
Onefone Australia Pty Ltd v One.Tel Ltd
[2010] NSWSC 498

…[2001] QCA 219; [2003] 2 Qd R 125 Ex parte McGrath; Re Pan Pharmaceuticals Ltd [2008] FCA 563; (2008) 26 ACLC 386 Francis v Emu Brewery Mezzanine Ltd [2009] FCA 1212 Hall re Australian Capital Reserve Ltd [2008] FCA 1895 Hall v Poolman [2009] NSWCA 64; (2009) 71 ACSR 139 McGrath re HIH Insurance Ltd [2005] NSWSC 7…

View all 8 citing cases →

Cases cited in this decision · 5 of 5 shown

Elderslie Finance Corporation Ltd v NewPage Pty Ltd (No 6)
[2007] FCA 1030 Para 17

…approve a compromise if one of a number of ways of presenting a claim involves a “debt” claim: Elderslie Finance Corporation Ltd v Newpage (No 6) (2007) 160 FCR 423 at [40]-[41].…
QBE Workers Compensation (NSW) Ltd v GJ Formwork Pty Ltd
[2006] NSWSC 98 Para 12

…at the orders sought in this case correspond with those made in a number of cases, including QBE Workers Compensation (NSW) Ltd v GJ Formwork Pty Ltd (2006) 56 ACSR 687 and Re HIH Insurance [2004] NSWSC 5. In those cases, the order regarding the liquidator’s justification for entering into the settlement was made und…
re HIH Insurance Ltd
[2004] NSWSC 5 Para 12

…pond with those made in a number of cases, including QBE Workers Compensation (NSW) Ltd v GJ Formwork Pty Ltd (2006) 56 ACSR 687 and Re HIH Insurance [2004] NSWSC 5. In those cases, the order regarding the liquidator’s justification for entering into the settlement was made under s 479(3) of the Act. The plaintif…
Re One.Tel Networks Holdings Pty Ltd
[2001] NSWSC 1065 Para 19

…g effect is a matter which militates in favour of the Court exercising its discretion to make the orders sought: Re One.Tel Networks Holdings Pty Ltd (2001) 40 ACSR 83 at [42]. The fact that the major creditors of EBD have had the opportunity to consider the proposed settlement, and do not oppose it, is also importa…
Dean-Willcocks v Soluble Solution Hydroponics Pty Limited
265 US 1 Para 12

…on for entering into the settlement was made under s 479(3) of the Act. The plaintiffs submit that s 479 and s 511 perform similar functions citing Dean-Willcocks v Soluble Solution Hydroponics Pty Ltd (1997) 42 NSWLR 209 at 212. However, as Young J pointed out this is not “completely true”.…

Legislation cited in this decision · 1

Corporations Act 2001 (Cth)
471B, 477(2A), 506(1A) 4 mentions (from Para 9)

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 178 of 2009

BETWEEN:	IAN CHARLES FRANCIS AND MICHAEL JOSEPH RYAN IN THEIR CAPACITY AS JOINT AND SEVERAL LIQUIDATORS OF EMU BREWERY DEVELOPMENTS PTY LTD (ACN 103 133 848) (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) Plaintiffs
AND:	EMU BREWERY MEZZANINE LIMITED (ACN 104 639 410) (IN LIQUIDATION) Defendant

JUDGE:	GILMOUR J
DATE OF ORDER:	15 OCTOBER 2009
WHERE MADE:	PERTH

JUDGE:	GILMOUR J
DATE:	27 OCTOBER 2009
PLACE:	PERTH