Sheahan v Ex Ced Foods
[2011] FCA 692
•17 June 2011
FEDERAL COURT OF AUSTRALIA
Sheahan v Ex Ced Foods [2011] FCA 692
Citation: Sheahan v Ex Ced Foods [2011] FCA 692 Parties: JOHN SHEAHAN AND IAN RUSSELL LOCK v EX CED FOODS (IN RECEIVERSHIP AND LIQUIDATION) (COMPANY NO. 499671) and JOHN SHEAHAN AND IAN RUSSELL LOCK v CEDENCO OHAKUNE (IN RECEIVERSHIP AND LIQUIDATION) (COMPANY NO. 665068) File numbers: SAD 121 of 2011
SAD 122 of 2011Judge: BESANKO J Date of judgment: 17 June 2011 Date of hearing: 6, 16 June 2011 Place: Adelaide Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 16 Counsel for the Applicants: Mr R J Whitington QC Solicitor for the Applicants: DMAW Lawyers Counsel for the Respondent: The Respondent did not appear
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
SAD 121 of 2011
BETWEEN: JOHN SHEAHAN AND IAN RUSSELL LOCK
ApplicantsAND: EX CED FOODS (IN RECEIVERSHIP AND LIQUIDATION) (COMPANY NO. 499671)
Respondent
JUDGE:
BESANKO J
DATE OF ORDER:
17 JUNE 2011
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1.Pursuant to clause 2 of article 17 of Schedule 1 of the Cross-Border Insolvency Act 2008 (Cth) (‘the Act’) the liquidation proceedings of Ex Ced Foods (Company No 499671) by which the applicants were appointed liquidators of on 6 May 2010 be and is hereby recognised as a foreign main proceeding.
2.Title of these proceedings be amended to ‘John Sheahan and Ian Russell Lock v Ex Ced Foods (In Receivership and Liquidation) (Company No 499671)’.
3.Leave is granted for the applicants to dispense with the requirement to file an interlocutory process in accordance with rule 15A.3(3) of the Federal Court (Corporations) Rules 2000 (Cth) (‘the Rules’).
4.Leave is granted for the applicants to dispense with the requirement to serve the originating process and supporting affidavits on Ex Ced Foods in accordance with rules 2.7(1) and 15A.3(4) of the Rules.
5.The costs of and incidental to this application be costs of the administration of Ex Ced Foods.
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 Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
SAD 122 of 2011
BETWEEN: JOHN SHEAHAN AND IAN RUSSELL LOCK
ApplicantsAND: CEDENCO OHAKUNE (IN RECEIVERSHIP AND LIQUIDATION) (COMPANY NO. 665068)
Respondent
JUDGE:
BESANKO J
DATE OF ORDER:
17 JUNE 2011
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1.Pursuant to clause 2 of article 17 of Schedule 1 of the Cross-Border Insolvency Act 2008 (Cth) (‘the Act’) the liquidation proceedings of Cedenco Ohakune (Company No 665068) by which the applicants were appointed liquidators of on 6 May 2010 be and is hereby recognised as a foreign main proceeding.
2.Title of these proceedings be amended to ‘John Sheahan and Ian Russell Lock v Cedenco Ohakune (In Receivership and Liquidation) (Company No 665068)’.
3.Leave is granted for the applicants to dispense with the requirement to file an interlocutory process in accordance with rule 15A.3(3) of the Federal Court (Corporations) Rules 2000 (Cth) (‘the Rules’).
4.Leave is granted for the applicants to dispense with the requirement to serve the originating process and supporting affidavits on Cedenco Ohakune in accordance with rules 2.7(1) and 15A.3(4) of the Rules.
5.The costs of and incidental to this application be costs of the administration of Cedenco Ohakune.
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 Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
SAD 121 of 2011
SAD 122 of 2011
BETWEEN: JOHN SHEAHAN AND IAN RUSSELL LOCK
ApplicantsAND: EX CED FOODS (IN RECEIVERSHIP AND LIQUIDATION) (COMPANY NO. 499671)
RespondentBETWEEN: JOHN SHEAHAN AND IAN RUSSELL LOCK
ApplicantsAND: CEDENCO OHAKUNE (IN RECEIVERSHIP AND LIQUIDATION) (COMPANY NO. 665068)
Respondent
JUDGE:
BESANKO J
DATE:
17 JUNE 2011
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
On 24 May 2011 John Sheahan and Ian Russell Lock as joint and several liquidators of Ex Ced Foods (Co. No 499671) (‘the company’) made an application by originating process for an order recognising the liquidation of Ex Ced Foods as a foreign main proceeding under the Cross-Border Insolvency Act 2008 (Cth) (‘the Act’). The originating process was supported by an affidavit of Mr John Sheahan. The company is registered in New Zealand and is part of the Cedenco group of companies in Australia and New Zealand. The Australian companies are Cedenco Foods JV Australia Pty Ltd, SK Foods Australia Pty Ltd and SS Farms Australia Pty Ltd and the New Zealand companies are Ex Ced Foods and Cedenco Ohakune.
On 23 December 2010 the Australian members of the Cedenco group filed petitions pursuant to Chapter 15 of the Bankruptcy Code seeking that the United States Bankruptcy Court in Northern California recognise the Australian liquidation proceedings as ‘foreign main proceedings’. On 7 February 2007 the United States Bankruptcy Court entered orders recognising the Australian proceedings as foreign main proceedings under Chapter 15.
On 26 February 2011 the New Zealand members of the Cedenco group filed petitions pursuant to Chapter 15 of the Bankruptcy Code seeking that the United States Bankruptcy Court in Northern California recognise the New Zealand proceedings as ‘foreign main proceedings’. On 25 March 2011 the United States Bankruptcy Court entered orders recognising the New Zealand proceedings as foreign main proceedings under Chapter 15.
On 4 March 2011 the Australian members of the Cedenco group filed an application in accordance with Article 17 of Schedule 1 to the Insolvency (Cross Border) Act 2006 (New Zealand) seeking that the High Court of New Zealand recognise the Australian liquidation proceedings as ‘foreign main proceedings’. On 20 May 2011 the High Court ordered that the Australian proceedings be recognised as foreign main proceedings.
This application and the application in the case of Cedenco Ohakune (Co. No 665068) seeks recognition of the liquidation proceedings of the two New Zealand companies in Australia as foreign main proceedings.
The liquidators’ application is also supported by an affidavit of their solicitor in New Zealand. He deposed to various matters of law relevant to the powers of a liquidator in New Zealand and the course of a liquidation in that country.
The liquidators’ application came before me on 6 June 2011 and counsel for the liquidators identified various matters said to support the making of the principal order sought by the liquidators. He also referred me to the various procedural requirements in the case of such matters identified in r 15A of the Federal Court (Corporations) Rules 2000.
I adjourned the hearing of the application to 16 June 2011 to enable the liquidators to attend to various matters which had been the subject of submissions on 6 June 2011.
Mr Sheahan filed a second affidavit in which he deposed to, among other things, various notices he had given to interested parties of the proceeding before this Court.
One affidavit was received by the Court from a solicitor acting on behalf of a company called Premium Peas Limited (“Premium Peas”). In that affidavit the solicitor deposed to the fact that she had been informed that Premium Peas was owed an amount of $153,757.52 by the company. When the application came before me on 16 June 2011 counsel for the applicant informed me that his instructing solicitor had spoken to the solicitors for Premium Peas and that they did not intend to appear at the hearing of the application.
The documents in the proceeding involving Cedenco Ohakune are the same save and except that there is no affidavit from the solicitor for Premium Peas. The considerations in that application are the same as the considerations in this application.
Having regard to the material before me I think it is appropriate to make the orders sought by the liquidators in each proceeding. Those orders are as follows:
Proceeding SAD 121 of 2011:
1.Pursuant to clause 2 of article 17 of Schedule 1 of the Cross-Border Insolvency Act 2008 (Cth) (‘the Act’) the liquidation proceedings of Ex Ced Foods (Company No 499671) by which the applicants were appointed liquidators of on 6 May 2010 be and is hereby recognised as a foreign main proceeding.
2.Title of these proceedings be amended to ‘John Sheahan and Ian Russell Lock v Ex Ced Foods (In Receivership and Liquidation) (Company No 499671)’.
3.Leave is granted for the applicants to dispense with the requirement to file an interlocutory process in accordance with rule 15A.3(3) of the Federal Court (Corporations) Rules 2000 (Cth) (‘the Rules’).
4.Leave is granted for the applicants to dispense with the requirement to serve the originating process and supporting affidavits on Ex Ced Foods in accordance with rules 2.7(1) and 15A.3(4) of the Rules.
5.The costs of and incidental to this application be costs of the administration of Ex Ced Foods.
John Sheahan and Ian Russell Lock as Joint and Several Liquidators of Cedenco Ohakune, proceeding SAD 122 of 2011:
1.Pursuant to clause 2 of article 17 of Schedule 1 of the Cross-Border Insolvency Act 2008 (Cth) (‘the Act’) the liquidation proceedings of Cedenco Ohakune (Company No 665068) by which the applicants were appointed liquidators of on 6 May 2010 be and is hereby recognised as a foreign main proceeding.
2.Title of these proceedings be amended to ‘John Sheahan and Ian Russell Lock v Cedenco Ohakune (In Receivership and Liquidation) (Company No 665068)’.
3.Leave is granted for the applicants to dispense with the requirement to file an interlocutory process in accordance with rule 15A.3(3) of the Federal Court (Corporations) Rules 2000 (Cth) (‘the Rules’).
4.Leave is granted for the applicants to dispense with the requirement to serve the originating process and supporting affidavits on Cedenco Ohakune in accordance with rules 2.7(1) and 15A.3(4) of the Rules.
5.The costs of and incidental to this application be costs of the administration of Cedenco Ohakune.
The requirements of the Act are met and it is appropriate to make an order in terms of paragraph 1.
Rule 15A.3(2) provides that the originating process must name the foreign representative as the plaintiff and the debtor as the defendant. Through oversight, the originating process in each proceeding simply names the liquidators as applicants. It is appropriate to make an order in terms of paragraph 2.
Rule 15A.3(3) provides that when filing the originating process, the foreign representative must file, but need not serve, an originating process seeking directions as to service, and the Court may give any directions about service, and make any incidental orders, that it thinks just. The liquidators did not do that in this case however, questions of service were debated at the hearing on 6 June 2011 and I am satisfied on the evidence that the necessary parties have been served. I think it is appropriate to make an order in terms of paragraph 3.
Rule 15A.3(4) provides that a plaintiff must serve a copy of the originating process and the other documents mentioned in subrule (2) in accordance with subrule 2.7(1) unless the Court otherwise orders. Rule 2.7(1) requires a plaintiff to serve copy of an originating process and any supporting affidavit on each defendant to the proceeding. However, the company is the defendant and the company is in liquidation. It is appropriate to dispense with the requirements of subrule 2.7(1) and to make the order in paragraph 4. As to the order in paragraph 5, the liquidators have been successful in obtaining the orders as sought and I think it is appropriate that the costs of and incidental to this application be costs of the administration of the company.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate:
Dated: 17 June 2011
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