FEDERAL COURT OF AUSTRALIA

In the matter of Ansett Australia Limited and Mentha [2001] FCA 1806

IN THE MATTER OF ANSETT AUSTRALIA LIMITED (ACN 004 209 410) & ORS (All Administrators Appointed) and MARK FRANCIS XAVIER MENTHA and MARK ANTHONY KORDA (As Administrators)

V 3083 of 2001

GOLDBERG J

14 DECEMBER 2001

MELBOURNE

THE COURT ORDERS THAT:

1.         Pursuant to s 447A of the Corporations Act 2001 (Cth) (“the Act”), Pt 5.3A of the Act is to operate in relation to each of the companies set out in the schedule to this order as if s 443A(1)(a) provided that:

(a)        entitlement payments made to the plaintiff administrators (“the administrators”) pursuant to a Determination dated 4 December 2001 by the Minister for Employment and Workplace Relations under s 22(1) of the Air Passenger Ticket Levy (Collection) Act 2001 (Cth), which is Exhibit “LZ-2” to the Affidavit of Leon Zwier sworn 10 December 2001, are debts incurred by the administrators in the performance and exercise of their functions and powers as administrators of each of the said companies for services rendered;

(b)        Notwithstanding sub‑par (a):

(i)         if the administrators’ indemnity under s 443D of the Act is insufficient to meet any such debt, the administrators will not be personally liable to repay such debt to the extent of that insufficiency;

(ii)        as to the repayment of such debts to the Commonwealth of Australia or the entity making the entitlement payments, the debts are given the same priority in the payment of any debts of the applicable company during the administration of the applicable company as if the applicable company had been in liquidation and the debts had the priority governed and provided for under ss 556 and 560 of the Act.

2.         Pursuant to s 447A of the Act, s 447D(1) of the Act is to operate in relation to the said companies so that in an application by the administrators for directions pursuant to s 447D(1) in relation to a deed proposed to be executed by the administrators and the Commonwealth of Australia (“the Deed”), the Court may give a direction that the administrators may properly and justifiably execute and give effect to the Deed insofar as it includes provisions substantially in the form of the provisions set out in par 3 hereof.

3.         Pursuant to s 447D(1) of the Act, as it operates in accordance with par 2 of this order, the Court directs that the administrators may properly and justifiably execute and give effect to the Deed insofar as it includes provisions substantially in the form of the following provisions:

(a)        entitlement payments made pursuant to the Determination dated 4 December 2001 under s 22(1) of the Air Passenger Ticket Levy (Collection) Act 2001 (Cth), which is Exhibit “LZ-2” to the Affidavit of Leon Zwier sworn 10 December 2001, are debts incurred by the administrators in the performance and exercise of their functions and powers as administrators of each of the said companies for services rendered;

(b)        Notwithstanding sub‑par (a):

(i)         if the administrators’ indemnity under s 443D of the Act is insufficient to meet any such debt, the administrators will not be personally liable to repay such debt to the extent of that insufficiency;

(ii)        as to the repayment of such debts to the Commonwealth of Australia or the entity making the entitlement payments, the debts are given the same priority in the payment of any debts of the applicable company during the administration of the applicable company as if the applicable company had been in liquidation and the priority had been governed and provided for under ss 556 and 560 of the Act. 

(c)        If the administrators decide to recommend that each of the said companies enter into a deed of company arrangement, the deed of company arrangement which the administrators recommend will be consistent with the incorporation of the priority regime provided for under ss 556 and 560 of the Act;

(d)        If any of the said companies enters into a deed of company arrangement which incorporates a priority regime other than as provided by sub‑par (c), then entitlement payments received by the administrators will constitute an expense properly incurred by the administrators in the administration of such company for services rendered and will be afforded nonetheless by force of the order of the Federal Court of Australia on 14 December 2001 a priority equal to the priority the Commonwealth of Australia or the entity making the entitlement payments would have received under s 560 of the Act in any winding up of the company had it advanced a payment of the kind contemplated by s 560 of the Act;

(e)        The administrators will not express the opinion to the creditors of the said companies pursuant to s 439A(4) of the Act or recommend to them that it would be in the creditors’ interests for the company to execute a deed of company arrangement other than one which provides for repayment to the Commonwealth of Australia or the said entity consistently with sub‑pars (a)‑(d).

4.         The costs of the administrators, the Commonwealth of Australia, the ACTU and other relevant Unions and the Trustees of the Ansett Australia Ground Staff Superannuation Plan Pty Ltd, Ansett Australia Pilots/Management Superannuation Plan Pty Ltd, Ansett Australia Accumulation Payment Pty Ltd and Ansett Flight Attendants Superannuation Plan Pty Ltd be costs in the administration of the said companies. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

SCHEDULE

Ansett Australia Limited (ACN 004 209 410)

501 Swanston Street Pty Ltd (ACN 005 477 618)

Aeropelican Air Services Pty Ltd (ACN 000 653 083)

Airport Terminals Pty Ltd (ACN 053 976 444)

Aldong Services Pty Limited (ACN 000 258 113)

Ansett Aircraft Finance Limited (ACN 008 643 276)

Ansett Australia Holdings Limited (ACN 004 216 291)

Ansett Aviation Equipment Pty Ltd (ACN 008 559 733)

Ansett Carts Pty Limited (ACN 055 181 215)

Ansett Equipment Finance Limited (ACN 006 827 989)

Ansett Finance Limited (ACN 006 555 166)

Ansett Holdings Limited (ACN 065 117 535)

Ansett International Limited (ACN 060 622 460)

Ansett Australia and Air New Zealand Engineering Services Ltd (ACN 089 520 696)

Bodas Pty Ltd (ACN 002 158 741)

Brazson Pty Limited (ACN 055 259 008)

Eastwest Airlines (Operations) Ltd (ACN 000 259 469)

Eastwest Airlines Limited (ACN 000 063 972)

Kendell Airlines (Aust) Pty Ltd (ACN 000 579 680)

Morael Pty Ltd (ACN 003 286 440)

Northern Airlines Limited (ACN 009 607 069)

Northern Territory Aerial Work Pty Limited (ACN 009 611 321)

Rock-it-Cargo (Aust) Pty Ltd (ACN 003 004 126)

Show Group Pty Ltd (ACN 002 968 989)

Skywest Airlines Pty Ltd (ACN 008 997 662)

Skywest Aviation Limited (ACN 004 444 866)

Skywest Holdings Pty Ltd (ACN 008 905 646)

Skywest Jet Charter Pty Ltd (ACN 008 800 155)

South Centre Maintenance Pty Ltd (ACN 007 286 660)

Spaca Pty Ltd (ACN 006 773 593)

Traveland International (Aust) Pty Limited (ACN 000 275 936)

Traveland International Pty Limited (ACN 002 275 936)

Traveland New Staff Pty Ltd (ACN 080 739 037)

Traveland Pty Limited (ACN 000 240 746)

Walgali Pty Ltd (ACN 005 258 921)

Westintech Limited (ACN 009 084 039)

Westintech Nominees Pty Ltd (ACN 009 302 158)

Whitsunday Affairs Pty Ltd (ACN 009 694 553)

Whitsunday Harbour Pty Limited (ACN 010 375 470)

Wridgway Holdings Limited (ACN 004 449 085)

Wridgways (Vic) Pty Ltd (ACN 004 153 413)

(All Administrators Appointed)