Re Octaviar Ltd (No 8)

Case [2010] QCA 45

SUPREME COURT OF QUEENSLAND

CITATION:

Re Octaviar Ltd (No 8) [2010] QCA 45

PARTIES:

FORTRESS CREDIT CORPORATION (AUSTRALIA) II PTY LIMITED
ACN 114 624 958
(respondent/appellant)
v
OCTAVIAR LIMITED (FORMERLY MFS LIMITED) (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION)
ACN 107 863 436
(respondent/first respondent)
PUBLIC TRUSTEE OF QUEENSLAND
(applicant/second respondent)
COMMISSIONER OF TAXATION
(respondent/third respondent)
OPI PACIFIC FINANCE LIMITED
(respondent/not a party to the appeal)
WELLINGTON CAPITAL LIMITED
(respondent/not a party to the appeal)

FILE NO/S:

Appeal No 9506 of 2009
SC No 1848 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

9 March 2010

DELIVERED AT:

Brisbane

HEARING DATE:

22 February 2010

JUDGES:

Keane, Muir and Chesterman JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Appeal dismissed1.   

In relation to costs each of the parties is at liberty to deliver to the other parties and to the Court a written submission on or before 4:00pm on 16 March 20102.   

CATCHWORDS:

CORPORATIONS – WINDING UP – APPLICATIONS FOR WINDING UP BY THE COURT – ORDERS – GENERALLY – where appellant ordered to be wound up in insolvency upon an application for winding up by the Public Trustee of Queensland – where appellant entered into a Deed of Company Arrangement (DOCA) between the application for winding up and the winding up order – where the primary judge terminated the DOCA and ordered under s 447A(1) of the Corporations Act 2001 (Cth) that Pt 5.3A of the Act operate so that s 446B of the Act and reg 5.3A.07 of the Corporations Regulations 2001 (Cth) do not apply in relation to the appellant – whether the order made by the primary judge was a proper exercise of the discretion conferred by s 447A(1) of the Act

Corporations Act 2001 (Cth), s 435A, s 446A, s 446B, s 446B(4), s 447A, s 447A(1), s 761H, s 992B(1), s 1364(1), Pt 5.3A
Corporations Regulations 2001 (Cth), reg 5.3A.07

Australasian Memory Pty Limited v Brien (2000) 200 CLR 270; [2000] HCA 30, applied
Bidald Consulting Pty Ltd v Miles Special Builders Pty Ltd (2005) 226 ALR 510; [2005] NSWSC 1235, cited
Jones v Wrotham Park Settled Estates [1980] AC 74, cited
Myer Queenstown Garden Plaza Pty Ltd and Myer Shopping Centres Pty Ltd v Corporation of the City of Port Adelaide and the Attorney-General (1975) 11 SASR 504, distinguished
Re Centaur Mining & Exploration Ltd (in liq) (2003) 133 FCR 482; [2003] FCA 1339, cited
Sunarso v Minister for Immigration and Multicultural Affairs (2000) 99 FCR 125; [2000] FCA 57, cited
Wicks v Director of Public Prosecutions [1947] AC 362, cited

COUNSEL:

D F Jackson QC, with M J Luchich, for the appellant
K E Downes SC, with S B Hooper, for the first respondent
W Sofronoff QC, with D B O'Sullivan, for the second respondent
R M Derrington SC, with…

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AGLC
Re Octaviar Ltd (No 8) [2010] QCA 45
Case
[2010] QCA 45
Decision Date

CaseChat Overview and Summary

The case of Re Octaviar Ltd (No 8) involved the appellant, Octaviar Ltd, which had been ordered to be wound up in insolvency by the primary judge. The Public Trustee of Queensland had made an application for winding up, which was granted. However, before the winding up order was made, Octaviar Ltd entered into a Deed of Company Arrangement (DOCA) with its creditors. The primary judge subsequently terminated the DOCA and made an order under s 447A(1) of the Corporations Act 2001 (Cth), which meant that certain provisions of the Act would not apply to the appellant. Octaviar Ltd appealed this decision to the court, challenging the validity of the primary judge's order.

The legal issue before the court was whether the primary judge had properly exercised the discretion conferred by s 447A(1) of the Corporations Act 2001 (Cth) in terminating the DOCA and ordering that certain provisions of the Act not apply to the appellant. The court had to consider whether the primary judge had exercised the discretion in a manner consistent with the purpose and objects of the Act and whether there were any errors of law or fact that affected the outcome. The court also had to consider whether the primary judge had given adequate reasons for the order.

The court found that the primary judge had properly exercised the discretion conferred by s 447A(1) of the Corporations Act 2001 (Cth) in terminating the DOCA and ordering that certain provisions of the Act not apply to the appellant. The court held that the primary judge had considered the relevant factors and had exercised the discretion in a manner consistent with the purpose and objects of the Act. The court found that there were no errors of law or fact that affected the outcome and that the primary judge had given adequate reasons for the order. The court dismissed the appeal and ordered that each of the parties is at liberty to deliver to the other parties and to the Court a written submission on or before 4:00pm on 16 March 2010 in relation to costs.

Orders

Orders of the court

Appeal dismissed1.

In relation to costs each of the parties is at liberty to deliver to the other parties and to the Court a written submission on or before 4:00pm on 16 March 20102.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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