Westpac Banking Corporation and Ors v The Bell Group Ltd and Ors

[2014] HCATrans 75

[2014] HCATrans 075

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth    No P18 of 2013

B e t w e e n -

WESTPAC BANKING CORPORATION ACN 007 457 141

First Appellant

SG AUSTRALIA LTD ACN 002 093 021

Second Appellant

NATIONAL AUSTRALIA BANK LTD ACN 004 044 937

Third Appellant

HSBC BANK AUSTRALIA LTD ACN 006 434 162

Fourth Appellant

STANDARD CHARTERED BANK ARBN 097 571 778

Fifth Appellant

COMMONWEALTH BANK OF AUSTRALIA ACN 123 123 124

Sixth Appellant

LLOYDS TSB BANK PLC

Seventh Appellant

BANCO ESPIRITO SANTO SA

Eighth Appellant

SEB AG

Ninth Appellant

BANK OF SCOTLAND PLC

Tenth Appellant

CREDIT AGRICOLE SA

Eleventh Appellant

UNICREDIT BANK AUSTRIA AG

Twelfth Appellant

CREDIT LYONNAIS

Thirteenth Appellant

COMMERZBANK AG

Fourteenth Appellant

KBC BANK VERZEKERINGS HOLDING NV

Fifteenth Appellant

SKOPBANK

Sixteenth Appellant

DZ BANK AG DEUTSCHE ZENTRAL-GENOSSENSCHAFTSBANK

Seventeenth Appellant

CALYON

Eighteenth Appellant

GENTRA LTD

Nineteenth Appellant

THE GULF BANK KSC

Twentieth Appellant

and

THE BELL GROUP LTD ACN 008 666 993 (IN LIQ)

First Respondent

THE BELL GROUP LTD ACN 008 666 993 (IN LIQ) AS TRUSTEE SEPARATELY FOR EACH OF:  DOLFINNE PTY LTD ACN 009 134 516 (IN LIQ), INDUSTRIAL SECURITIES PTY LTD ACN 008 728 792 (IN LIQ), MARANOA TRANSPORT PTY LTD ACN 009 668 393 (IN LIQ), NEOMA INVESTMENTS PTY LTD ACN 009 234 842 (IN LIQ)

Second Respondent

BELL GROUP FINANCE PTY LTD ACN 009 165 182 (IN LIQ) (RECEIVER AND MANAGER APPOINTED)

Third Respondent

BELL GROUP (UK) HOLDINGS LTD (IN LIQ) (IN ADMINISTRATIVE RECEIVERSHIP)

Fourth Respondent

BELL PUBLISHING GROUP PTY LTD ACN 008 704 452 (IN LIQ)

Fifth Respondent

AMBASSADOR NOMINEES PTY LTD ACN 009 105 800 (IN LIQ)

Sixth Respondent

BELCAP ENTERPRISES PTY LTD ACN 009 264 537 (IN LIQ)

Seventh Respondent

BELL BROS PTY LTD ACN 008 672 375 (IN LIQ)

Eighth Respondent

BELL EQUITY MANAGEMENT LTD ACN 009 210 208

Ninth Respondent

DOLFINNE PTY LTD ACN 009 134 516 (IN LIQ)

Tenth Respondent

GREAT WESTERN TRANSPORT PTY LTD ACN 009 669 121 (IN LIQ)

Eleventh Respondent

HARLESDEN FINANCE PTY LTD ACN 009 227 561

Twelfth Respondent

INDUSTRIAL SECURITIES PTY LTD ACN 008 728 792 (IN LIQ)

Thirteenth Respondent

MARADOLF LTD ACN 005 482 806 (IN LIQ)

Fourteenth Respondent

MARANOA TRANSPORT PTY LTD ACN 009 668 393 (IN LIQ)

Fifteenth Respondent

WANSTEAD TRANSPORT PTY LTD ACN 008 775 120 (IN LIQ)

Sixteenth Respondent

WESTERN TRANSPORT PTY LTD ACN 009 666 308 (IN LIQ)

Seventeenth Respondent

WIGMORES TRACTORS PTY LTD ACN 008 679 221 (IN LIQ)

Eighteenth Respondent

W & J INVESTMENTS LTD ACN 000 068 888 ( IN LIQ)

Nineteenth Respondent

DOLFINNE SECURITIES PTY LTD ACN 009 218 142 (IN LIQ)

Twentieth Respondent

NEOMA INVESTMENTS PTY LTD ACN 009 234 842 (IN LIQ)

Twenty‑First Respondent

TBGL ENTERPRISES LTD ACN 008 669 216 (IN LIQ)

Twenty‑Second Respondent

WANSTEAD SECURITIES PTY LTD ACN 009 218 160 (IN LIQ)

Twenty‑Third Respondent

WAON INVESTMENTS PTY LTD ACN 008 937 166 (IN LIQ)

Twenty‑Fourth Respondent

WESTERN INTERSTATE PTY LTD ACN 000 224 395 (PROVISIONAL LIQUIDATOR APPOINTED)

Twenty‑Fifth Respondent

GEOFFREY FRANK TOTTERDELL IN HIS CAPACITY AS LIQUIDATOR (WITH ALJ WOODINGS) OF EACH OF THE FIRST, SEVENTH, EIGHTH, NINTH, ELEVENTH, FIFTEENTH, SIXTEENTH, SEVENTEENTH, NINETEENTH, TWENTIETH, TWENTY-SECOND, TWENTY-THIRD AND TWENTY-FITH RESPONDENTS

Twenty‑Sixth Respondent

ANTONY LESLIE JOHN WOODINGS IN HIS CAPACITY AS SOLE LIQUIDATOR OF THE THIRD, FIFTH, TENTH, TWELFTH, THIRTEENTH, FOURTEENTH, EIGHTEENTH, TWENTY-FIRST AND TWENTY-FOUTH RESPONDENTS AND AS LIQUIDATOR (WITH GF TOTTERDELL) OF EACH OF THE FIRST, SEVENTH, EIGHTH, NINTH, ELEVENTH, FIFTEENTH, SIXTEENTH, SEVENTEENTH, NINETEENTH, TWENTIETH, TWENTY-SECOND, TWENTY-THIRD AND TWENTY-FIFTH RESPONDENTS

Twenty‑Seventh Respondent

THE LAW DEBENTURE TRUST CORPORATION PLC AS TRUSTEE OF THE BGNV TRUSTS AS DEFINED IN THE SCHEDULE TO THE WRIT OF SUMMONS IN CIV 1464 OF 2000

Twenty‑Eighth Respondent

Directions hearing

FRENCH CJ

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 10 APRIL 2014, AT 10.29 AM

Copyright in the High Court of Australia

____________________

MR A.C. ARCHIBALD, QC:   I appear with MR N.J. OWENS for the appellants, your Honour.  (instructed by Herbert Smith Freehills)

MR C.G. COLVIN, SC:   If your Honour pleases, with my learned friend, MR D.J. JACKSON, I appear for the respondents.  (instructed by Ashurst Australia)

HIS HONOUR:   Mr Archibald.

MR ARCHIBALD:   Your Honour will have seen from the affidavits of Mr Paynter, which I read, that all but one of the conditions precedent to the settlement of the matter were satisfied by 22 January of this year.  One remaining condition precedent is still to be satisfied and that is taking longer than had been anticipated originally ‑ ‑ ‑

HIS HONOUR:   There is an application tomorrow, I think, is there not, in the English ‑ ‑ ‑

MR ARCHIBALD:   Yes, your Honour.  It involves approval for the trustee of the bonds to enter into the deed.  There were two original avenues whereby that condition precedent might have been satisfied:  one, bondholder vote; the other, court approval.  The second route is now being adopted and a final hearing of the matter is to be held in London tomorrow, London time.  The evidence indicates that it is anticipated that the court will be asked to deliver judgment as soon as possible with the hope that that might be achieved before Easter.  If that is so, one will know by mid‑May whether the condition precedent is satisfied for the condition precedent turns upon a final order of what is called in the deed of settlement “the English High Court or an appellate court entertaining an appeal from that court”.  The evidence indicates there is an appeal period of 21 days and seven days to notify of the appeal, so 28 days after judgment is given one should know that the condition precedent has been satisfied.  That will take one until ‑ ‑ ‑

HIS HONOUR:   Thank you for that, Mr Archibald.  I have read the affidavits, of course.  I think the form of order last made was adjourn for not less than six months which is something that ‑ ‑ ‑

MR ARCHIBALD:   Yes, I was a little embarrassed to see that.  I am sure the sense of the order in the way it would be read was for a finite period rather than an infinite period.

HIS HONOUR:   Yes, well, I am going to revert to my old Federal Court habits and fix a date upon which the matter will come back, but I want to make sufficient allowance for contingencies.

MR ARCHIBALD:   Yes, your Honour.

HIS HONOUR:   So diverting as would be, of course, to relist the whole thing for hearing.  It seems to me that if I were to list the matter again at 9.30 on 4 August, which is the beginning of our August sittings – of course, if everything is tied up before then, then appropriate finalisation notices can be filed.  Do you have any difficulty with that?

MR ARCHIBALD:   No, your Honour.  We specified a late June date, mindful of the July vacation period, but August would be far more satisfactory.  There may be a little slippage and 4 August would certainly suit the appellants.

HIS HONOUR:   Yes, all right.  Mr Colvin.

MR COLVIN:   We agree with that submission, your Honour.

HIS HONOUR:   I suppose it is your summons really, is it not?

MR ARCHIBALD:   Yes, it is, your Honour.

HIS HONOUR:   The summons is stood over to Monday, 4 August at 9.30 and will be in Canberra, but by video link, of course, if it is necessary to do that.  Thank you.  The Court will now adjourn.

AT 10.33 AM THE MATTER WAS ADJOURNED