Sunteți pe pagina 1din 4

Year

2000

Plaintiff/Claimant
Alan Edward Lewis, liquidator of Doran Constructions Pty Ltd

Defendant
Barry Cook, liquidator of Doran Constructions (Australia) Pty Ltd

Story
Common directors of Doran Constructions Pty Ltd (DC) and its holding
company Doran Constructions (Australia) Pty Ltd (DCA) met and resolved
to forgive a loan account owing by DCA to DC of $2.5m. Shortly after, a
members' voluntary liquidation of DCA, and a creditors' voluntary
liquidation of DC were initiated, with separate liquidators. The liquidator of
DC lodged a proof of debt with the liquidator of DCA. When the proof was
rejected, the liquidator of DC sought a declaration that the debt had not
been discharged effectively, or that the discharge of the debt was an
uncommercial transaction.

Judge name
Austin J.

Held/Decision
the Supreme Court of New South Wales gave judgment on 11 March 1993
against the applicant and in favour of the respondent; and ordered that the
applicant give to the respondent possession of the mortgaged land and
pay to the respondent the sum of $429,722.73, being the amount owing
under the mortgage.
The orders of the Court are:-
1.) That the statutory demand of 1 September 1993 served on the
applicant by or at the request of the respondent, be set aside;
2.) The respondent shall pay the costs of the appellant of this
proceeding including reserved costs, if any.
Lewis V.
Cook
18 ACLC 490, SC(NSW)
Appeal
Not Applicable

Moral
A reasonable person would not have contemplated forgiving a substantial
debt due to it from its parent company for no consideration.





































Year
1993

Plaintiff/Claimant
State Bank of New South Wales Limited
Counsel: DJ Higgs

Defendant
Topfelt Pty. Ltd.
Counsel: S A Janes

Story
Topfelt Pty Limited, the applicant, mortgaged certain land in favour of State
Bank of New South Wales Limited, the respondent, as security for a loan.
After the loan was overdue for repayment the respondent took steps to sell
the land as mortgagee. The applicant asserted that the respondent was not
entitled to exercise its power of sale for various reasons. The respondent
sued the applicant in the Supreme Court of New South Wales for
possession of the land. Various matters were raised by the applicant as
defences and cross-claims. In the result the Supreme Court of New South
Wales at rst instance gave judgment on 11 March 1993 against the
applicant and in favour of the respondent; and ordered that the applicant
give to the respondent possession of the mortgaged land and pay to the
respondent the sum of $429,722.73, being the amount owing under the
mortgage.

Judge name
Lockhart J.

Held/Decision
Austin J found that the forgiveness was ineffective (as there was neither
valuable consideration nor a deed). His Honour also found that it was an
uncommercial transaction. The directors believed that DCA was not in a
position to repay any of the debt when the debt was forgiven, and so DCA
Topfelt Pty V.
State Bank of NSW Ltd.
12 ASCR 381, (1993)
obtained no benet from the release. But there was evidence that DCA's
shares in DC might have some value, in the form of entitlement to the
benet of a costs order, and a contingent asset arising out of litigation.
Austin J accepted that a reasonable person in the position of DC would
have been inuenced not to forgive the debt because of:
the possibility that the company might enjoy a windfall gain or
realise a contingent asset, allowing it to pay part of the debt; and
the inherent advantage that accrues to a creditor by participating in
the proper administration of the insolvent company -- in particular
the capacity to inuence the selection of the liquidator.

Appeal
The applicant appealed from the decision at rst instance to the Court of
Appeal of New South Wales which found against the applicant and ordered
that the appeal be dismissed with costs. The applicant then sought from the
High Court special leave to appeal from the judgment of the Court of
Appeal, but that application was refused by the High Court on 26 October
1993.

Moral
This case raises questions concerning the interpretation and operation of
the provisions of the Corporations Law which relate to the proof of the
insolvency of a debtor company in winding up proceedings. The Corporate
Law Reform Act 1992 (Cth) (No 210 of 1992) introduced the relevant
sections into the Corporations Law in 1993 and they commenced on 23
June 1993.

S-ar putea să vă placă și