Re Timbercorp Securities Ltd (No 4) - [2009] VSC 530

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION

COMMERCIAL COURT

No 9998 of 2009

IN THE MATTER OF TIMBERCORP SECURITIES LIMITED
(IN LIQUIDATION) (ACN 092 311 469)

TIMBERCORP SECURITIES LIMITED (IN LIQUIDATION) IN ITS CAPACITY AS REPSONSIBLE ENTITY OF THE MANAGED INVESTMENT SCHEMES LISTED IN SCHEDULE 1

ORS ACCORDING TO THE SCHEDULE

Plaintiffs

---

JUDGE:	CROFT J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 November 2009
DATE OF JUDGMENT:	12 November 2009
CASE MAY BE CITED AS:	Re Timbercorp Securities Limited (No 4)
MEDIUM NEUTRAL CITATION:	[2009] VSC 530

---

CORPORATIONS – application by liquidators for directions – managed investment schemes – responsible entity in liquidation – sale by responsible entity of schemes’ interest in olive plantations – liquidators justified in agreeing to sell plantations and extinguish all the rights of the growers – application to reverse or modify the decision of the liquidators as to the preferred bidder dismissed – s 477(2B), s 511, s 568(1A) and s 1321 of the Corporations Act 2001.

---

APPEARANCES:
For the Plaintiffs	Mr L Zwier and Ms B. Toy-Cronin
For Timbercorp Growers Group	Mr G.T. Bigmore of Her Majesty’s Counsel and Mr S.G. Hopper
For Kerree Anne Bezencon	Mr T.D. Cordiner
For Australian Securities and Investments Commission	Mr S J Hibble
For Westpac Banking Corporation, BOS International Australia Limited and Australia and New Zealand Banking Group Limited	Mr P.E. Anastassiou of Senior Counsel and Mr R.G. Craig

HIS HONOUR:

Primary Application

By an originating process dated 10 November 2009 the plaintiffs, who are Timbercorp Securities Ltd (in liquidation) as the responsible entity, Olive Corp. Management Ltd (in liquidation) in its capacity as manager of the Unregistered Managed Investment Scheme, Mr Korda, Mr Chesser, Mr Mentha, Timbercorp Ltd (in liquidation) and Olive Corp Lands Pty Ltd (in liquidation), seek orders and directions under s 477(2B), s 511, s 568(1)(A) of the Corporations Act 2001.

The orders and directions sought include orders and directions that the third and fourth plaintiffs in their capacity as liquidators of the first, sixth and eighth plaintiffs, are justified in procuring the first plaintiff as responsible entity of the managed investment schemes listed in Schedule 1 of the proposed order, to enter into and perform sale and purchase deeds between each of the plaintiffs and Boundary Bend Ltd, which form confidential Exhibits MAK18 and MAK19 of the affidavit of Mr Korda, sworn 10 November 2009 and extinguishing all the rights of growers, that is, investors in the schemes set out in Schedules 1 and 2 of the proposed order in respect of the assets, the subject of the sale and purchase deeds.

Directions are sought also that the third and fifth plaintiffs, in their capacity as liquidators of the second plaintiff, are justified in procuring the second plaintiff as manager of the unregistered Olive Scheme to enter into and perform the sale and purchase deed and extinguishing all of the growers rights.

This matter has been brought on with a degree of…

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.

Keep reading for free

Create a free CaseChat account to read Re Timbercorp Securities Ltd (No 4) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] VSC 530
Decision Date: 12 November 2009

CaseChat Overview and Summary

The case before the court involved the liquidators of Timbercorp Securities Ltd, who sought directions in relation to the sale of the company's interest in olive plantations. The plantations were held as part of managed investment schemes managed by the company, which was the responsible entity. The liquidators argued that they were justified in agreeing to sell the plantations and extinguish the rights of the growers, who had planted the trees under a contractual arrangement with the company. The growers sought to reverse or modify the liquidators' decision regarding the preferred bidder for the sale of the plantations. The court had to determine the validity of the liquidators' actions and the rights of the growers.

The primary legal issue before the court was whether the liquidators were justified in their decision to sell the plantations and extinguish the growers' rights. The court had to consider the statutory provisions under the Corporations Act 2001, specifically sections 477(2B), 511, 568(1A), and 1321, which govern the responsibilities and powers of liquidators in the management of a company's assets. The court also had to consider the contractual rights of the growers under the agreement with the company. The growers argued that the liquidators had failed to consider their rights and interests in the decision-making process.

The court found that the liquidators were justified in their decision to sell the plantations and extinguish the growers' rights. The court held that the liquidators had acted within their statutory powers and responsibilities, and that the sale of the plantations was in the best interests of the company's creditors. The court also found that the growers' contractual rights were not sufficient to override the liquidators' decision, as the sale of the plantations was necessary to realise the company's assets for the benefit of its creditors. The court dismissed the growers' application to reverse or modify the liquidators' decision regarding the preferred bidder.

The court's decision was that the liquidators were justified in their decision to sell the plantations and extinguish the growers' rights, and the application to reverse or modify the decision was dismissed. The court found that the liquidators had acted within their statutory powers and responsibilities, and that the sale of the plantations was in the best interests of the company's creditors. The court also found that the growers' contractual rights were not sufficient to override the liquidators' decision, as the sale of the plantations was necessary to realise the company's assets for the benefit of its creditors. The growers' application was dismissed with costs.

Orders