Re Environinvest Ltd (No. 5)

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
COMMERCIAL COURT

List E
No. 2384 of 2010

IN THE MATTER OF ENVIRONINVEST LIMITED
(RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION)
(ACN 080 743 791)

ENVIRONINVEST LIMITED (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) (ACN 080 743 791) (IN ITS CAPACITY AS RESPONSIBLE ENTITY OF EACH OF THE MANAGED INVESTMENT SCHEMES LISTED IN SCHEDULE 1)	First Plaintiff
JAMES PATRICK DOWNEY (IN HIS CAPACITY AS SCHEME LIQUIDATOR OF EACH OF THE MANAGED INVESTMENT SCHEMES LISTED IN SCHEDULE 1)	Second Plaintiff
MARKO YURI MISKO & ORS	Defendants

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JUDGE:	FERGUSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 September 2011
DATE OF JUDGMENT:	21 September 2011 (Revised 27 September 2011)
CASE MAY BE CITED AS:	Re Environinvest Ltd (No. 5)
MEDIUM NEUTRAL CITATION:	[2011] VSC 474

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CORPORATIONS – Managed Investment Scheme – Winding up by a person appointed under s 601NF(1) of the Corporations Act 2001 (Cth) – Approval of variation of mediated agreement as to distribution of funds in the winding up – Approval of a proposal for relinquishment of interest in scheme property for fixed sum - Directions in winding up under s 601NF(2) of the Corporations Act.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr S Rubenstein	Norton Rose
For the Receivers and Managers of the First Plaintiff	Mr H Austin	Minter Ellison
For the Defendants	No appearance

HER HONOUR:

Introduction

1. The first plaintiff, Environinvest Limited, is the responsible entity of a number of failed managed investment schemes for growing and harvesting timber plantations.  James Patrick Downey, who is the second plaintiff, is the liquidator of Environinvest and also the liquidator appointed to wind up the schemes.  The scheme relevant to this application is the Primary Yield Eucalypt Project (“PYEP”).

1. The collapse of Environinvest led to numerous proceedings in this Court[1] and a number of orders for costs were made in the proceedings.

   [1]Supreme Court Proceedings 8734 and 9141 of 2008 and this proceeding, 2384 of 2010.

1. In this proceeding, Mr Downey has previously sought various directions and orders, including in respect of the approval of his costs, expenses and remuneration, the allocation of funds from the sale of trees, and the ranking of other claims for costs and expenses.  The claimants included Mark Francis Xavier Mentha and Craig Peter Shepard (“the Receivers”).  They are the receivers and managers of the assets and undertaking of Environinvest.  The Receivers were appointed under a registered charge by the Commonwealth Bank of Australia Ltd.  Other claimants included ABL Nominees Pty Ltd and the receivers and managers appointed by it to the assets of Primary Yield Finance Pty Ltd (“the PYF Receivers”).  Primary Yield Finance had made loans to investors in the various Environinvest schemes.  A final group of those interested in the distribution of the funds were certain of the investors in the Environinvest schemes who are known as the Growers (some of whom had costs orders in their favour and some…