FEDERAL COURT OF AUSTRALIA
Lift Capital Partners Pty Limited (In Liquidation) (ACN 111 015 500), in the matter of Lift Capital Partners Pty Limited (In Liquidation) (No 2)
[2010] FCA 84
| Citation: | Lift Capital Partners Pty Limited (In Liquidation) (ACN 111 015 500), in the matter of Lift Capital Partners Pty Limited (In Liquidation) (No 2) [2010] FCA 84 |
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| Parties: | (ACN 112 913 532) |
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| File number(s): | NSD 1308 of 2009, NSD 57 of 2010, NSD 58 of 2010 |
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| Judge: | EMMETT J |
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| Date of judgment: | 8 February 2010 |
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| Legislation: | Corporations Act 2001 (Cth) s 411 |
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| Cases cited: | Duffy v Supercentre Development Corp Limited [1967] 1 NSWR 382 Legione v Hately (1983) 152 CLR 406 Selim v McGrath (2003) 47 ACSR 537 |
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| Date of hearing: | 27 November 2009; 3, 4, 5 and 8 February 2010 |
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| Place: | Sydney |
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| Division: | GENERAL DIVISION |
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| Catchwords: | No catchwords |
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| Number of paragraphs: | 68 |
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| Counsel for the Plaintiffs: | IM Jackman SC with MR Tyson |
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| Solicitor for the Plaintiffs: | Allens Arthur Robinson |
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| Counsel for the Merrill Lynch Companies: | TF Bathurst QC with SM Nixon |
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| Solicitor for the Merrill Lynch Companies | Blake Dawson |
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| Counsel for the Famularo Parties: | RM Smith SC, MA Jones, GES Ng |
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| Solicitor for the Famularo Parties: | Swaab Attorneys |
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| Solicitor for the Supporting Creditor: | Norton Rose |
| IN THE FEDERAL COURT OF AUSTRALIA |
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| NEW SOUTH WALES DISTRICT REGISTRY |
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| GENERAL DIVISION | NSD 1308 of 2009 |
IN THE MATTER OF LIFT CAPITAL PARTNERS PTY LIMITED (IN LIQUIDATION) (ACN 111 015 500)
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| LIFT CAPITAL PARTNERS PTY LIMITED (IN LIQUIDATION) (ACN 111 015 500) First Plaintiff
LIFT CAPITAL NOMINEES NO 1 PTY LIMITED (IN LIQUIDATION) (ACN 112 913 532) Second Plaintiff
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| JUDGE: | |
| DATE OF ORDER: | 8 FEBRUARY 2010 |
| WHERE MADE: | SYDNEY |
THE COURT ORDERS THAT:
1. Pursuant to sub-section 411(4)(b) of the Corporations Act 2001 (Cth) (the Act):
(a) The scheme of arrangement between all creditors of the First Plaintiff and the First Plaintiff; and
(b) The scheme of arrangement between all creditors of the Second Plaintiff and the Second Plaintiff,
Be approved, the terms of each scheme of arrangement being as annexed hereto and marked “A” (the Schemes).
2. Pursuant to section 413 of the Act, the whole of the undertaking and all of the property and liabilities of the Second Plaintiff be transferred to the First Plaintiff on the Effective Date (as defined in the Schemes).
3. These orders be entered forthwith.
4. The Plaintiffs have liberty to apply on 3 days’ notice.
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.
Schemes of Arrangement
between Lift Capital Partners Pty Limited (in liquidation) and its Scheme Creditors
and
between Lift Capital Nominees No 1 Pty Limited (in liquidation) and its Scheme Creditors
Allens Arthur Robinson
Level 28
Deutsche Bank Place
Corner Hunter and Phillip Streets
Sydney NSW 2000 Australia
Tel +61 2 9230 4000
Fax +61 2 9230 5333
www.aar.com.au
© Copyright Allens Arthur Robinson, Australia 2009
Table of Contents
1. Definitions and Interpretation........................................................................................... 1
1.1 Definitions...................................................................................................................... 1
1.2 Interpretation.................................................................................................................. 1
2. Conditions precedent...................................................................................................... 1
2.1 Conditions precedent to Schemes................................................................................... 1
2.2 End Date........................................................................................................................ 1
3. Lodgement of Court orders............................................................................................. 1
4. Schemes becoming Effective........................................................................................... 1
5. The Schemes.................................................................................................................. 1
5.1 Purposes........................................................................................................................ 1
5.2 Application..................................................................................................................... 1
6. The amalgamation........................................................................................................... 1
7. Establishment of Scheme Funds...................................................................................... 1
8. Determination of Scheme Claims..................................................................................... 1
8.1 Assessment of Lift Clients' Scheme Claims...................................................................... 1
8.2 Adjustments to Lift Clients' Established Scheme Claims................................................... 1
8.3 Lift Clients not entitled to prove for any other amount...................................................... 1
8.4 Automatic assessment of Lift Clients' Established Scheme Claims..................................... 1
8.5 Process for Lift Clients to challenge the adjudication of their Established Scheme
Claim ............................................................................................................................. 1
8.6 Lift Clients whose claims will not be automatically assessed.............................................. 1
8.7 Assessment of claims by Scheme Creditors who are not Lift Clients................................. 1
8.8 Proofs of debt submitted later than 21 Business Days after the Effective Date................... 1
8.9 Scheme Creditors who are not entitled to prove.............................................................. 1
9. Application of Scheme Assets......................................................................................... 1
9.1 Application of First Scheme Fund................................................................................... 1
9.2 Application of Second Scheme Fund............................................................................... 1
9.3 Retention of funds........................................................................................................... 1
9.4 Payments by the Scheme Administrators......................................................................... 1
9.5 Distributions................................................................................................................... 1
9.6 Payments to Scheme Creditors....................................................................................... 1
9.7 Default by Scheme Creditor............................................................................................ 1
9.8 Payments to Foreign Scheme Creditors........................................................................... 1
9.9 Unclaimed Payments....................................................................................................... 1
10. Liquidators' appointment as agent and attorney................................................................ 1
11. Releases......................................................................................................................... 1
11.1 Execution of Scheme Deed of Release and Indemnity...................................................... 1
11.2 Release by the Lift Clients............................................................................................... 1
11.3 Covenant by the Lift Clients............................................................................................ 1
11.4 Release by the Liquidators and the Lift Companies.......................................................... 1
11.5 Covenant by the Liquidators and the Lift Companies....................................................... 1
12. Scheme Administrators................................................................................................... 1
12.1 Liquidators..................................................................................................................... 1
12.2 Qualification, appointment and cessation.......................................................................... 1
12.3 General Powers.............................................................................................................. 1
12.4 Specific Powers.............................................................................................................. 1
12.5 Exercise of Powers......................................................................................................... 1
12.6 Liability.......................................................................................................................... 1
12.7 Indemnity....................................................................................................................... 1
12.8 Remuneration................................................................................................................. 1
13. Creditors' Committee...................................................................................................... 1
13.1 Composition................................................................................................................... 1
13.2 When meeting may be convened..................................................................................... 1
13.3 Applicable Rules............................................................................................................. 1
13.4 Reports and Confidentiality............................................................................................. 1
13.5 Functions........................................................................................................................ 1
13.6 Liability.......................................................................................................................... 1
13.7 No remuneration............................................................................................................. 1
14. Creditors' Meetings........................................................................................................ 1
14.1 Application..................................................................................................................... 1
14.2 When meeting may be convened..................................................................................... 1
14.3 Applicable rules.............................................................................................................. 1
15. Moratorium on claims by Scheme Creditors.................................................................... 1
16. Termination.................................................................................................................... 1
16.1 Termination of these Schemes......................................................................................... 1
16.2 Consequences of termination........................................................................................... 1
17. General Provisions.......................................................................................................... 1
17.1 Further Scheme Creditor assurances and consents........................................................... 1
17.2 Alterations and conditions to these Schemes.................................................................... 1
17.3 Notice to Scheme Companies and Scheme Administrators.............................................. 1
17.4 Notice to Scheme Creditors............................................................................................ 1
17.5 Date of notice................................................................................................................. 1
17.6 Governing law and jurisdiction......................................................................................... 1
Annexure 1 – Scheme Deed of Release and Indemnity.................................................................... i
Annexure 2 – Ratification Deed Poll.............................................................................................. 1
Annexure 3 – Scheme Administrator Deed Poll............................................................................. 1
Annexure 4 – List of Surplus Securities.......................................................................................... 1
Pursuant to section 411 of the Corporations Act 2001 (Cth)
| Between |
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| 1. | Lift Capital Partners Pty Limited (in liquidation) (ACN 111 015 500) registered in Victoria of c/- McGrath Nicol, Level 31, 60 Margaret Street Sydney NSW 2000 (Lift Capital) and its Scheme Creditors (as defined) |
| 2. | Lift Capital Nominees No 1 Pty Limited (in liquidation) (ACN 112 913 532) registered in Victoria of c/- McGrath Nicol, Level 31, 60 Margaret Street Sydney NSW 2000 (Lift Nominees) and its Scheme Creditors (as defined) |
| Recitals |
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| A | Anthony McGrath and Joseph Hayes of McGrathNicol, Level 31, 60 Margaret Street, Sydney NSW 2000 (the Liquidators) were appointed as liquidators of the Lift Companies on 12 November 2008, having previously acted as the administrators of those companies from 10 April 2008 until 12 November 2008. |
| B | The Liquidators, in their capacity as liquidators of the Lift Companies, have foreshadowed claims against Merrill Lynch arising from the transfer by Lift Nominees of certain securities, that it previously held on behalf of Lift Clients, to Merrill Lynch and which were subsequently sold by Merrill Lynch. |
| C | The Lift Clients, or some of them, have foreshadowed claims against Merrill Lynch and the Lift Companies arising from the transfer by Lift Nominees of certain securities, that it previously held on behalf of Lift Clients, to Merrill Lynch and which were subsequently sold by Merrill Lynch. |
| D | Merrill Lynch denies any liability in respect of any of the foreshadowed claims. Merrill Lynch has foreshadowed cross-claims against the Lift Companies in the event that proceedings are brought against them by the Lift Companies or the Lift Clients. |
| E | The Lift Companies, the Liquidators, Merrill Lynch and others participated in a without prejudice mediation before the Honourable Alex Chernov AO QC in July 2009 with a view to exploring a possible settlement of all claims as between Lift Capital, Lift Nominees, Merrill Lynch and Lift Clients and engaged in further discussions following that mediation. |
| F | As a result of the further discussions, the Lift Companies, the Liquidators and Merrill Lynch entered into the Scheme Implementation Agreement, pursuant to which: · the Liquidators agreed to propose and implement the Schemes and act as Scheme Administrators;, · subject to the Schemes becoming Effective, Merrill Lynch has agreed to pay the Cash Contribution to the Liquidators within five Business Days of the Effective Date; and · subject to these Schemes becoming Effective, the Lift Companies, the Liquidator, Merrill Lynch and the Liquidators (as attorneys for the Lift Clients) have agreed to execute the Scheme Deed of Release and Indemnity. |
In these Schemes, unless the context requires otherwise:
Administration means the administration of the Lift Companies pursuant to Part 5.3A of the Corporations Act, which commenced on the appointment of administrators on 10 April 2008.
Appeals End Date means the date that is 28 days after the Effective Date or the first date after such longer period as the Court may, within the period from the Effective Date to the date that is 28 days after the Effective Date, allow an appeal to be made.
ASIC means the Australian Securities and Investments Commission.
Business Day means any day that is each of the following:
(a) a Business Day within the meaning given in the ASX Listing Rules; and
(b) a day that banks are open for business in New South Wales.
Cash Contribution means a cash amount of $10.3 million.
Claim means any debt, claim, cause of action, proceeding, suit, liability or demand which arose prior to the date of this Deed (whether prospective or contingent, including one the amount of which is not ascertained, and including causes of action, provable claims in a liquidation or under the terms of a deed of company arrangement and costs (whether or not the subject of a court order)) and which arose out of or in connection with any facts matters or circumstances relating in any way to the Lift Companies including:
(a) the business of the Lift Companies;
(b) the Administration or Liquidation of the Lift Companies;
(c) the transfer of securities by the Lift Companies to Merrill Lynch and its Related Bodies Corporate in the period from 7 June 2005 to 10 April 2008;
(d) the sell-down of securities transferred by the Lift Companies to Merrill Lynch conducted by Merrill Lynch in the period from 10 April 2008 to 17 April 2008;
(e) the retention by Merrill Lynch of securities transferred by the Lift Companies to Merrill Lynch in the period after 10 April 2008;
(f) the Transaction Documents; or
(g) the circumstances or matters referred to in the NSW Proceeding or the WA Proceeding.
Committee of Inspection means the committee of inspection of the Lift Companies appointed under Part 5.6 of the Corporations Act on or around 12 November 2008.
Corporations Act means the Corporations Act 2001 (Cth).
Courtmeans the Federal Court of Australia.
Creditors' Meeting means a meeting convened and held pursuant to clause 14.
Creditors' Committee means the committee of creditors established pursuant to clause 13.
Effective means, when used in relation to the Schemes, the coming into effect, pursuant to section 411(10) of the Corporations Act, of the orders of the Court under section 411(4)(b) of the Corporations Act in relation to the Schemes.
Effective Date means the date on which the Schemes become Effective.
Established Scheme Claimmeans:
(a) insofar as Lift Clients are concerned, a claim calculated in accordance with clauses 8.1 and 8.2 below; and
(b) insofar as Scheme Creditors who are not Lift Clients are concerned, the amount for which their Final Scheme Proof is adjudicated by the Scheme Administrators pursuant to clause 8.7 below.
Financial Product has the meaning given to it in the Corporations Act.
Final Scheme Proof means a proof of Scheme Claim submitted to the Scheme Administrators by a Scheme Creditor pursuant to clause 8.7 below.
First Scheme Fund means the fund to be established in accordance with and described at clause 9.1 below.
Foreign Scheme Creditormeans a Scheme Creditor, incorporated, resident or domiciled in a place outside of Australia as at any of the Effective Date, the Release Date or the date of declaration or payment of a dividend or distribution under these Schemes and includes (without limitation) a Scheme Creditor whose address last notified to the Liquidators or any Lift Company is an address outsideof Australia.
Lift Client means:
(a) any Scheme Creditor who transferred, or asserts it transferred, any Financial Product to a Lift Company;
(b) any Scheme Creditor who instructed, or asserts it instructed, a Lift Company to purchase any Financial Product on its behalf or to be held to its account; or
(c) any person who entered into a facility agreement with Lift Capital and borrowed money from Lift Capital to purchase securities and who, arising out of the transfer by Lift Nominees of securities that it held on behalf of that person to Merrill Lynch, has a debt or claim admissible to proof against one or both of the Lift Companies within the meaning of section 553 of the Corporations Actor their assignees,
and includes the persons named in the Lift Companies' records as the account holders of the accounts listed by number under the heading "Client ID" in Schedule 1 to the Scheme Deed of Release and Indemnity.
Lift Companies means Lift Capital Partners Pty Limited (in liquidation) and Lift Capital Nominees No 1 Pty Limited (in liquidation) or either one of them, as applicable.
Lift Facility Agreement means the facility agreement entered into between Lift Capital and the relevant Lift Client (the terms and conditions of which are contained in Lift Capital's applicable brochure containing a product disclosure statement).
Liquidation means the liquidation of the Lift Companies which commenced on the appointment of Liquidators on 8 November 2008.
Liquidator Recovery means any money or property recovered by the Liquidators for the benefit of creditors of any Scheme Company whether under the provisions of Part 5.7B of the Corporations Act or otherwise.
Merrill Lynch means MLI and MLIA or either one of them, as applicable.
MLI means Merrill Lynch International (ARBN 125 336 567) incorporated in the United Kingdom of 2 King Edward Street London EC1A 1HQ United Kingdom.
MLIA means Merrill Lynch International (Australia) Ltd (ACN 002 892 846) of Level 38, Governor Philip Tower, 1 Farrer Place Sydney NSW 2000.
NSW Proceeding means Supreme Court of NSW Proceeding No 2661 of 2008 between the Lift Companies, the Liquidators, Merrill Lynch and others.
Options means an exchange traded option or over the counter option entered into by or on behalf of a Lift Client pursuant to section 3 of certain of the Lift Facility Agreements.
Property means any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description and includes a thing in action and all LiquidatorRecoveries.
Protected Share Loan means the product consisting of the clauses contained in section 2 of certain of the Lift Facility Agreements.
Related Body Corporate has the meaning given in the Corporations Act.
Related Entity means, in relation to a person, a Related Body Corporate, officer, employee or agent of the person or an officer, employee or agent of a Related Body Corporate of the person.
Release Date means the latest of:
(a) the date which is one Business Day after the Appeals End Date;
i. the date which is one Business Day after all appeals and applications for leave or for further time to appeal commenced before the Appeals End Date, and any further appeals or applications therefrom and any proceedings on remittal from any such appeal, have been finally disposed of; and
ii. the date which is one Business Day after expiration of any stay preventing or affecting the implementation of these Schemes ordered by a court in connection with any appeal or application for leave or for further time to appeal commenced before the Appeals End Date or any further appeal or application for further time to appeal therefrom.
Schemes means these two schemes of arrangement under Part 5.1 of the Corporations Act, being:
(a) a scheme of arrangement between Lift Capital and its Scheme Creditors; and
(b) a scheme of arrangement between Lift Nominees and its Scheme Creditors,
subject to any alterations or conditions made or required by the Court and agreed to or consented by the Liquidators and Merrill Lynch, and a reference to a Scheme shall be a reference to either of those two schemes of arrangement.
Scheme Administrators means Anthony Gregory McGrath and Joseph David Hayes (together with their permitted successors and assigns) in their capacity as Scheme Administrators of the Lift Companies.
Scheme Assets means all Property and other assets of any Scheme Company whether actual, prospective or contingent; for the avoidance of doubt, this expression will include:(a) the Cash Contribution; (b) any asset which is held or recovered for the benefit of a Scheme Company or its creditors by the Liquidators and which is made available to the Scheme Administrators to be applied in accordance with the terms of the Schemes
Scheme Claim means a Claim against a Lift Company the circumstances giving rise to which occurred on or before 10 April 2008.
Scheme Creditor means a creditor of a Lift Company with a Scheme Claim, excluding the Swaby and Crabb Claimants and Merrill Lynch.
Scheme Deed of Release and Indemnity means a deed in the form of Annexure 1, the proposed parties of which are the Lift Companies, the Liquidators, Merrill Lynch and the Lift Clients.
Scheme Funds means the First and Second Scheme Funds.
Scheme Implementation Agreement means the Scheme Implementation Agreement dated 10 November 2009 between the Lift Companies, the Liquidators, Merrill Lynch, Merrill Lynch UK Capital Holdings, SNC Securities Limited and Merrill Lynch Markets (Australia) Pty Limited.
Scheme Meetings means the meetings of the Scheme Creditors of each Lift Company convened by order of the Court under section 411(1) of the Corporations Act to consider and, if thought fit, agree to these Schemes, and a reference to a Scheme Meeting is a reference to any one of those meetings.
Second Court Date means the first day of hearing of an application made to the Court for orders pursuant to section 411(4)(b) of the Corporations Act approving the Schemes or, if the hearing of such application is adjourned for any reason, means the first day of the adjourned hearing.
Second Scheme Fund means the fund to be established in accordance with and described at clause 9.2 below.
Security means a share, unit in a managed investment fund or other financial instrument.
Special Resolution means a resolution passed by that majority of Scheme Creditors as would be required under section 411(4)(a)(i) of the Corporations Act for a compromise or arrangement under Part 5.1 of the Corporations Act to be binding on creditors.
Surplus Securities means:
(a) the securities transferred by Lift Nominees to Merrill Lynch or its nominees and which are listed in Annexure 4;
(b) cash in the amount of $4,662,537; and
(c) all other interest, dividends and other distributions received and continuing to be held by Merrill Lynch in respect of the Surplus Securities, whether received in the form of cash, securities or other assets.
Swaby and Crabb Claimantsmeans Ms Gillian Swaby, Mr Rick Crabb and Mr Rick Crabb and Ms Carol Crabb as trustee of the Intermax Trust.
Transaction Documents means:
(a) Australian Master Securities Lending Agreement between Lift Capital and Merrill Lynch Equities (Australia) Limited dated 7 June 2005;
(b) the Global Master Securities Lending Agreements between Lift Capital and MLIA dated 13 February 2007;
(c) the Global Master Securities Lending Agreements between Lift Capital and MLI dated 13 February 2007 (including a UK Tax Addendum);
(d) the International Prime Broking Agreement between MLI and Lift Capital dated 12 March 2007;
(e) the Australian Addendum to International Prime Broking Agreement between MLI, MLIA and Lift Capital dated 13 February 2007;
(f) the International Prime Broking Agreement between MLI and Lift Capital dated 21 November 2007; and
(g) the Australian Addendum to International Prime Broking Agreement between MLI, MLIA and Lift Capital dated 21 November 2007.
WA Proceeding means Proceeding WAD 66 of 2008 in the Federal Court of Australia between the Swaby and Crabb Claimants, Lift Capital, MLI, MLIA and various related bodies corporate of Merrill Lynch.
Headings are for convenience only and do not affect interpretation. The following rules apply unless the context requires otherwise.
(a) The singular includes the plural and conversely.
(b) A gender includes all genders.
(c) If a word or phrase is defined, its other grammatical forms have a corresponding meaning.
(d) A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.
(e) A reference to a clause, schedule or annexure is a reference to a clause of, or schedule or annexure to, these Schemes.
(f) A reference to an agreement or document (including a reference to these Schemes) is to the agreement or document as amended, varied, supplemented, novated or replaced, except to the extent prohibited by this document or that other agreement or document.
(g) A reference to a person includes a reference to the person's executors, administrators, successors, substitutes (including persons taking by novation) and assigns.
(h) A reference to legislation or to a provision of legislation includes a modification or re enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it.
(i) A reference to $ is to the lawful currency of Australia.
(j) A reference to time is a reference to time in Sydney, Australia.
(k) If the day on which any act, matter or thing is to be done is a day other than a Business Day, such act, matter or thing must be done on the immediately succeeding Business Day.
(l) The meaning of general words is not limited by specific examples introduced by including, or for example, or similar expressions.
(m) Words and phrases not specifically defined in this document have the same meanings (if any) given to them in the Corporations Act.
2.1 Conditions precedent to Schemes
Each Scheme is conditional upon, and will have no force or effect until, the satisfaction of each of the following conditions precedent:
(c) such other conditions, made or required by the Court under section 411(6) of the Corporations Act in relation to the Schemes, having been satisfied.
The Schemes will lapse and be of no further force or effect if the Effective Date does not occur on or before 31 March 2010 or any later date that the parties to the Scheme Implementation Agreement agree in writing.
If the Court makes orders approving the Schemes under section 411(4)(b) of the Corporations Act, the Liquidators will as soon as practicable lodge with ASIC office copies of those Court orders.
These Schemes will come into effect on the Effective Date.
The purposes of the Schemes are:
(a) to effect the amalgamation of the Lift Companies;
(b) to satisfy the conditions under which Merrill Lynch, Merrill Lynch UK Capital Holdings, SNC Securities Limited and Merrill Lynch Markets (Australia) Pty Limited will perform their respective obligations under the Scheme Implementation Agreement;
(c) to constitute and appoint each Liquidator as the true and lawful agent and attorney of each Scheme Creditor with authority to execute and deliver the Scheme Deed of Release and Indemnity on behalf of each Lift Client;
(d) to provide a procedure for the identification and determination of Scheme Claims; and
(e) to provide a procedure for the application of Scheme Assets.
(a) These Schemes apply to all Scheme Claims.
(b) These Schemes bind all of the Scheme Creditors from time to time (including those who did not attend the relevant Scheme Meeting(s), did not vote at the relevant meeting(s) or voted against the relevant Scheme(s)).
6. The amalgamation
(a) On the Effective Date, Lift Capital will acquire from Lift Nominees the whole of the undertaking and all of the assets and property of Lift Nominees and shall assume all of the liabilities of Lift Nominees on that date.
(b) For the purposes of paragraph (a), the terms "property" and "liabilities" have the same meanings as in section 413(4) of the Corporations Act.
(c) Subject to any order of the Court, the Liquidation of Lift Nominees shall continue, and the Liquidators of Lift Nominees shall remain appointed as liquidators until such as time as Lift Nominees is de-registered.
(a) If these Schemes become Effective, the Scheme Administrators will, within 2 Business Days after the Effective Date, establish the following funds:
(i) the First Scheme Fund, being a cash fund comprising all assets of the Lift Companies but excluding any cash that is to be held in the Second Scheme Fund; and
(ii) the Second Scheme Fund, being a cash fund comprising
(A) upon it ceasing to be held in trust under the Scheme Deed of Release and Indemnity, the Cash Contribution of $10.3 million to be paid by Merrill Lynch to the Liquidators pursuant to clause 6 of the Scheme Implementation Agreement and released to the Scheme Administrators pursuant to clause 6 of the Scheme Deed of Release and Indemnity; and
(B) the Property of Lift Nominees,
and the First Scheme Fund and Second Scheme Fund will collectively be referred to as the Scheme Funds, and a reference to Scheme Fund is to either one of them.
(b) Any recoveries which the Liquidators make after the Effective Date in the Liquidations of the Lift Companies shall be paid into the First Scheme Fund.
(c) The cash in each Scheme Fund must be held:
(ii) separately from any cash that does not belong to the relevant Scheme Fund.
(d) A bank deposit account referred to in paragraph (c)(i) may, at the Scheme Administrators' discretion, be interest-bearing. If such an account is interest-bearing, any interest accruing to that account will be added to the relevant Scheme Fund.
(e) The Scheme Administrators may only withdraw and/or distribute the cash in each Scheme Fund in accordance with these Schemes. None of the Liquidators, the Lift Companies or the Scheme Administrators will make any payment of the Cash Contribution prior to the Release Date.
8.1 Assessment of Lift Clients' Scheme Claims
where:
C = the amount of a Lift Client's Established Scheme Claim (subject to any adjustment in accordance with 8.2 below);
∑ means the sum of
j represents the name of a Security (e.g a BHP share) mortgaged or purportedly mortgaged by or on behalf of the relevant Lift Client in favour of Lift Capital and subsequently sold by Merrill Lynch;
n means the number of the Securities of different names mortgaged or purportedly mortgaged by or on behalf of the relevant Lift Capital Client in favour of Lift Capital and subsequently sold by Merrill Lynch (eg if the Lift Capital Client had mortgaged or purportedly mortgaged and Merrill Lynch had sold 10 BHP, 15 Rio Tinto and 20 Woodside shares, n would equal 3);
Vj = the value of Security j calculated as the volume weighted averaging of all sale prices received by Merrill Lynch for Security j in the period from 11 April 2008 to 5May 2008;
Sj = the number (volume) of Security j (e.g. 10 BHP shares) mortgaged or purportedly mortgaged by or on behalf of the relevant Lift Client in favour of Lift Capital and subsequently sold by Merrill Lynch;
L = the total amount borrowed by the Lift Client from Lift Capital as at 10 April 2008 including interest calculated up to 10 April 2008; and
B = the total amount of any credit balance in a Lift Client's account with Lift Capital as at 10 April 2008.
8.2 Adjustments to Lift Clients' Established Scheme Claims
The amount of Lift Clients' Established Scheme Claims as calculated in accordance with 8.1 above shall be subject to the following adjustments:
(a) Surplus Securities: to the extent that:
(i) Lift Clients have a proprietary entitlement to any Surplus Securities; and
(ii) those Surplus Securities (or the proceeds of sale less any reasonable realisation costs) have not been made available to or returned to the relevant Lift Clients as at the date that the calculation referred to at clause 8.1 above is performed by the Scheme Administrators or as at the date of any subsequent determination,
then the amount of a Lift Client's Established Scheme Claim as calculated in accordance with clause 8.1 shall be increased by adding an amount calculated by the Scheme Administrators in accordance with the formula below:
where:
A = the $ amount by which a Lift Client's Established Scheme Claim as calculated in accordance with clause 8.1 shall be increased;
∑ means the sum of
j represents the name of a share in a listed company (eg a BHP share) referred to in Annexure 4 (a Listed Share);
n means the number of the Listed Share of different names mortgaged or purportedly mortgaged by or on behalf of the relevant Lift Client in favour of Lift Capital (eg if the Lift Capital Client had mortgaged or purportedly mortgaged 10 BHP, 15 Rio Tinto and 20 Woodside shares, n would equal 3);
Bj = the number of the relevant Listed Share j mortgaged or purportedly mortgaged by or on behalf of the relevant Lift Client in favour of Lift Capital as at 10 April 2008;
Cj = the total number of Listed Share j mortgaged or purportedly mortgaged by or on behalf of all Lift Clients in favour of Lift Capital and transferred to Merrill Lynch as at 10 April 2008;
Sj = the number (volume) of Listed Share j which are Surplus Securities (as listed at Annexure 4);
Vj = the closing price of Sj as at 10 April 2008;
D = any pro rata proprietary entitlement which a Lift Client has to the cash referred to in paragraph (b) of the definition of Surplus Security; and
E = any pro rata proprietary entitlement which a Lift Client has to the dividends referred to in paragraph (c) of the definition of Surplus Security.
(b) Protected Share Loans: to the extent that a Lift Client entered into a Protected Share Loan, the Established Scheme Claim of that Lift Client shall be calculated in accordance with clause 8.1 above, except that when calculating the value of "L", those Lift Clients shall be entitled to apply the terms of the Protected Share Loan.
(c) Options: to the extent that a Lift Client bought or sold Options, the Established Scheme Claim of that Lift Client calculated in accordance with clause 8.1 above shall be adjusted in accordance with the rights of the Lift Companies and the Lift Client in respect of those Options under the Lift Facility Agreement.
8.3 Lift Clients not entitled to prove for any other amount
(a) Lift Clients will not be entitled to prove for, or receive any distribution in these Schemes, in respect of any Scheme Claim which they may have against the Lift Companies except in accordance with the provisions of clauses 8.1 and 8.2 above.
(b) For the avoidance of doubt, no amount which a Lift Client receives pursuant to an adjustment made pursuant to clause 8.2(a)(i) above will in any way affect any proprietary claim that Lift Client might have in respect of the Surplus Securities.
8.4 Automatic assessment of Lift Clients' Established Scheme Claims
(c) Subject to clause 8.4(d) and 8.5 below, the determination by the Scheme Administrators shall, subject to any mathematical or other manifest error and insofar as the law allows, be binding on the Lift Client as the amount of the relevant Lift Client's Established Scheme Claim.
(i) make a further determination of the amount of the Lift Client's Established Scheme Claim in accordance with clauses 8.1 and 8.2 above following the return of the Surplus Securities;
(ii) pending such a further determination, withhold some or all of that part of a payment payable to a Lift Client under clause 8.10 which relates to any adjustment performed pursuant to clause 8.2(a).
(e) The Scheme Administrators shall be entitled to:
(i) call for such evidence as may be required from the Lift Client or a Lift Company, in relation to matters referred to him or her for determination; and
(ii) consult with such advisers, including legal advisers, as are considered appropriate by the Scheme Administrators.
8.5 Process for Lift Clients to challenge the adjudication of their Established Scheme Claim
(a) Any Lift Client who does not agree with the adjudication of their Established Scheme Claim pursuant to clause 8.1 above shall have a period of 10 Business Days from the date on which they are notified of the amount of their Established Scheme Claim under clause 8.4(b) above to reach an agreement with the Scheme Administrators as to the amount of their Established Scheme Claim.
(c) Lift Clients are entitled to appeal:
(i) the calculation by the Scheme Administrators of the amount of a Lift Client's Established Scheme Claim referred to in clause 8.4(a) above; and/or
(ii) any further adjudication of a Lift Client's Established Scheme Claim by the Scheme Administrators pursuant to clause 8.5(b),
in accordance with section 1321 of the Corporations Act.
(d) For the avoidance of doubt, notwithstanding any challenge or appeal, the amount of a Lift Client's Scheme Claim shall not exceed the amount which that Lift Client is entitled to claim pursuant to clauses 8.1 and 8.3 above.
8.6 Lift Clients whose claims will not be automatically assessed
If a Lift Client is a director of a Lift Company, the claims of that Lift Client will not be assessed pursuant to clause 8.4 above. Any such Lift Clients shall be required to prove their claims in accordance with clause 8.7 below, although the amounts which they are entitled to prove for shall be limited to the amounts referred to in clauses 8.1 and 8.3 above.
8.7 Assessment of claims by Scheme Creditors who are not Lift Clients
If a Scheme Creditor is not a Lift Client, or has a Scheme Claim which does not arise from its having been a Lift Client, the amount of that Scheme Creditors' Scheme Claim shall be determined in the following manner:
(a) those Scheme Creditors shall submit a Final Scheme Proof within [21] Business Days of the Effective Date;
(b) the Scheme Administrators shall be entitled to:
(i) call for such evidence as may be required from the Scheme Creditor or a Lift Company in relation to matters referred to him or her for determination; and
(ii) consult with such advisers, including legal advisers, as are considered appropriate by the Scheme Administrators;
(c) following receipt of all required evidence from the relevant Scheme Creditor or Lift Company, that Final Scheme Proof will be adjudicated on by the Scheme Administrators within [14] Business Days following receipt of the Final Scheme Proof or such other evidence as is requested by the Scheme Administrators;
(d) the determination by the Scheme Administrators shall, subject to any mathematical or other manifest error and insofar as the law allows, be binding on the Scheme Creditor as the amount of the relevant Scheme Creditors' Established Scheme Claim; and
(e) Scheme Creditors shall be entitled to appeal the Scheme Administrators' adjudication in accordance with section 1321 of the Corporations Act.
8.8 Proofs of debt submitted later than 21 Business Days after the Effective Date
In the event that a Scheme Creditor who is not a Lift Client fails to submit a Final Scheme Proof within 21 Business Days of the Effective Date, the Scheme Administrators shall be entitled to (but are not obliged to):
(a) treat any proof of debt submitted by the Scheme Creditor at an earlier date as being the Final Scheme Proof and adjudicate that proof of debt as if it were the Final Scheme Proof; or
8.9 Scheme Creditors who are not entitled to prove
Neither Merrill Lynch or any of its related bodies corporate (as defined in the Corporations Act) nor the Swaby and Crabb Claimants shall be entitled to prove in the Scheme of Arrangement.
8.10 Scheme Creditors' interest in respect of income which has not been distributed
(a) To the extent that income of a Scheme Fund of a year ended 30 June has been distributed to Scheme Creditors, each Scheme Creditor is presently entitled to the amount distributed to them prior to midnight on 30 June of that year.
(b) To the extent that any income of a Scheme Fund of a year ended 30 June has not been distributed to Scheme Creditors as at 30 June, then immediately prior to midnight on 30 June of that year, all Scheme Creditors with an Established Scheme Claim will have a vested and indefeasible interest in that income, calculated in accordance with (c) below.
(c) The amount of each Scheme Creditor's vested and indefeasible interest pursuant to clause (a) above will be calculated on a pro rata basis according to the amount of each Scheme Creditor's Established Scheme Claim and taking into account any distributions which have already been made to that Scheme Creditor, such that Scheme Creditors with Established Scheme Claims will together have a vested and indefeasible interest in the whole of any income of a Scheme Fund which has not already been distributed.
8.11 Liquidator's interest in income which has not been distributed
To the extent that any income of a Scheme Fund of a year ended 30 June has not been distributed to Scheme Creditors as at 30 June and a Scheme Creditor does not have a vested and indefeasible interest in that income pursuant to clause 8.10 above immediately prior to midnight on 30 June of that year, then the Liquidators will be deemed to have a vested and indefeasible interest in such income immediately prior to midnight on 30 June of that year (such income to be distributed by the Liquidators in accordance with usual liquidation principles).
8.12 Scheme Administrators' tax liability
The Scheme Administrators must do all things reasonably necessary to ensure that the Scheme Administrators do not incur a liability to pay tax under section 99A(4) of the Income Tax Assessment Act 1936 (Cth). Without limiting the discretion of the Scheme Administrators, such actions may include making distributions to Scheme Creditors or to themselves in their capacity of Liquidators.
9.1 Application of First Scheme Fund
(a) The First Scheme Fund will be applied by the Scheme Administrators in the following order:
(i) payment of all debts and liabilities which have priority pursuant to Part 5.6 of the Corporations Act;
(ii) all remuneration, costs, charges, expenses and disbursements incurred by the Scheme Administrators in the course of implementing the Schemes;
(iii) all remuneration, costs, charges, expenses and disbursements incurred by the Liquidators after the Effective Date; and
(iv) payment of all Scheme Creditors' Established Scheme Claims on a pari passu basis.
9.2 Application of Second Scheme Fund
(a) The Second Scheme Fund will be applied in the following order:
(i) payment of any debts and liabilities which have priority pursuant to Part 5.6 of the Corporations Act and which have not been paid using the First Scheme Fund;
(ii) all remuneration, costs, charges, expenses and disbursements incurred by the Scheme Administrators in the course of implementing the Schemes which have not been paid using the First Scheme Fund;
(iii) all remuneration, costs, charges, expenses and disbursements incurred by the Liquidators after the Effective Date which have not been paid using the First Scheme Fund; and
(iv) payment of all Lift Clients' Established Scheme Claims on a pari passu basis.
(b) In calculating the amount which Lift Clients are entitled to receive in respect of their Established Scheme Claim pursuant to clause 9.2(a)(iv) above, the Scheme Administrators shall take into account any amounts paid or payable to that Lift Client pursuant to clause 9.1(a)(iv) above.
The Scheme Administrators may retain amounts from the Scheme Funds sufficient to:
(a) meet any costs associated with any claims that the Scheme Administrators or Liquidators may wish to bring on behalf of the Lift Companies (whether in their own name or the name of the Lift Companies), the investigation of any such claims and any claims that might be brought against the Lift Companies, the Scheme Administrators or the Liquidators; and
(b) pay the costs and expenses of administering the Schemes.
9.4 Payments by the Scheme Administrators
(a) The Scheme Administrators may pay the costs, charges, expenses and disbursements which they or the Liquidators incur as they are incurred and without prior approval of the Creditors' Committee.
(b) The Scheme Administrators may only pay their remuneration or the remuneration of the Liquidators out of the Scheme Funds up to the amount approved from time to time by the Creditors' Committee in accordance with clause 12.8(c) or as approved by the Court.
(a) On and from the Release Date, the Scheme Administrators may in their absolute discretion make interim distributions to Scheme Creditors in accordance with these Schemes prior to the determination of the amount of each Scheme Creditor's Established Scheme Claim.
(b) Should any further monies become available to the Scheme Administrators after the payment of distributions, the Scheme Administrators will make further distributions to Scheme Creditors in accordance with these Schemes.
9.6 Payments to Scheme Creditors
Payments to a Scheme Creditor may be made, in the absolute discretion of the Scheme Administrators:
(a) by cheque in favour of the Scheme Creditor or the Scheme Creditor's nominee and sent through the post at the risk of the Scheme Creditor to the last known address of the Scheme Creditor or to such other address as such Scheme Creditor may from time to time notify to a Lift Company or the Scheme Administrators;
(b) by electronic funds to such bank account as the relevant Scheme Creditor may from time to time notify to the Scheme Administrators;
(c) in such other manner as the Scheme Administrators may from time to time determine. The cost of using any such other manner will be an expense of the Scheme Creditor concerned and deducted from the relevant payments.
9.7 Default by Scheme Creditor
(b) Without limitation to clause 9.7(a), if:
(i) a Scheme Creditor is liable to a Lift Company for any amount; or
(ii) the Liquidators or the Scheme Administrators have made a claim against a Scheme Creditor,
the Liquidators and the Scheme Administrators will be entitled to withhold any distribution of the Scheme Assets to which the Scheme Creditor would otherwise be entitled until such time as the Scheme Creditor has satisfied the liability or the Liquidators have made the relevant Liquidator Recovery.
(d) Notwithstanding clause 9.7(c), a Scheme Creditor is not entitled to disturb the distribution of a dividend declared before the Scheme Administrators have agreed that the Scheme Creditor is entitled to a distribution under these Schemes.
9.8 Payments to Foreign Scheme Creditors
(a) Notwithstanding any other provision of these Schemes, the obligations of the Scheme Administrators to distribute proceeds of the Scheme Assets to any Foreign Scheme Creditor under these Schemes will be discharged in accordance with this clause 9.8.
(b) Any proceeds of the Scheme Assets to which a Foreign Scheme Creditor would otherwise be entitled under these Schemes (Withheld Distributions) will be held on trust by the Scheme Administrators for the benefit of that Foreign Scheme Creditor in accordance with this clause 9.8.
(c) For the purposes of this clause 9.8, a Ratification Deed Poll from a Foreign Scheme Creditor will be valid if it is:
(i) in the form of Annexure 2;
(ii) received by the Scheme Administrators within 60 days of the date that Foreign Scheme Creditor received notice from the Scheme Administrators under clause 8.4(b);
(iii) complete and duly signed by the Foreign Scheme Creditor in accordance with its place of incorporation or residence; and
(iv) accompanied by evidence which, to the reasonable satisfaction of the Scheme Administrators, establishes that it is enforceable by its beneficiaries (including the Liquidators and Merrill Lynch) against the Foreign Scheme Creditor.
(d) If the Scheme Administrators receive a valid Ratification Deed Poll from a Foreign Scheme Creditor, any Withheld Distributions to which that Foreign Scheme Creditor would otherwise be entitled under these Schemes will be released from trust and distributed or re-delivered (as the case may be) to that Foreign Scheme Creditor in accordance with the Schemes.
(e) If the Scheme Administrators do not receive a valid Ratification Deed Poll from a Foreign Scheme Creditor:
(i) that Foreign Scheme Creditor will not be entitled to any distribution of Scheme Assets or the re-delivery of any Scheme Securities under the Schemes; and
(ii) any Withheld Distributions to which that Foreign Scheme Creditor would otherwise be entitled under the Schemes will be released from trust and distributed to other Scheme Creditors in accordance with the Schemes.
(f) The Scheme Administrators’ obligations to a Foreign Scheme Creditor as trustee of a trust referred to in clause 9.8(b) will be limited to the obligations set out in this clause 9.8.
If a payment made pursuant to clause 9.6 has not been debited against the bank account of Lift Capital and/or the Scheme Administrators within 12 months of that payment being made:
(a) that payment shall be taken to be forfeited by the relevant Scheme Creditor; and
(b) the amount of that payment shall be paid back into the relevant Scheme Fund for distribution in accordance with the Schemes.
10. Liquidators' appointment as agent and attorney
On and from the Effective Date, each Lift Client, without the need for any further act by the Lift Client, irrevocably appoints the Liquidators as each Lift Client's agent and attorney for the purposes of executing and delivering on behalf of the Lift Client the Scheme Deed of Release and Indemnity. The authority given by this clause 10 is given as if it were given under seal.
11.1 Execution of Scheme Deed of Release and Indemnity
The provisions of this clause 11 will not take effect until each party to the proposed Scheme Deed of Release and Indemnity, in accordance with the Scheme Implementation Agreement, duly executes and delivers a counterpart of the Scheme Deed of Release and Indemnity to each other party, the Liquidators doing so for the Lift Companies, for the Lift Clients as their duly appointed agent and attorney, as well as in their capacity as liquidators of the Lift Companies.
11.2 Release by the Lift Clients
Subject to clause 11.1, with effect from the Release Date, each of the Lift Clients, acting through the Liquidators as its duly appointed agent and attorney, releases Merrill Lynch and each of its Related Entities from all Claims.
11.3 Covenant by the Lift Clients
Subject to clause 11.1, the Lift Clients covenant in favour of Merrill Lynch and each other person in favour of whom a release is given under clause 11.2 not to bring or pursue, procure that a third party bring or pursue, provide financial support for or otherwise support any claim, action, dispute, demand or proceeding in any court or tribunal in respect of any matter which is the subject of a release under clause 11.2.
11.4 Release by the Liquidators and the Lift Companies
Subject to clause 11.1, with effect from the Release Date, the Lift Companies and the Liquidators (in their capacity as liquidators of the Lift Companies) release Merrill Lynch and each of its Related Entities from all Claims.
11.5 Covenant by the Liquidators and the Lift Companies
Subject to clause 11.1, the Lift Companies and the Liquidators (in their capacity as liquidators of the Lift Companies) covenant in favour of Merrill Lynch and each other person in favour of whom a release is given under clause 11.4 not to bring or pursue, procure that a third party bring or pursue, provide financial support for or otherwise support any claim, action, dispute, demand or proceeding in any court or tribunal in respect of any matter which is the subject of a release under clause 11.4.
Provided the Liquidators have, in accordance with clause 7 of the Scheme Implementation Deed, executed and delivered to the Lift Companies a deed poll in the form of Annexure 3 on or prior to the Effective Date, the Liquidators will, on and from the Effective Date, act in an additional capacity as Scheme Administrators under these Schemes.
12.2 Qualification, appointment and cessation
(a) A person shall only be appointed as a Scheme Administrator if the person:
(i) is qualified pursuant section 411(7) of the Corporations Act;
(ii) consents to act as a Scheme Administrator; and
(iii) executes and delivers to the Lift Companies a deed poll in the form of Annexure 3.
(b) The number of Scheme Administrators must be not less than two unless otherwise determined by a special resolution of the Scheme Creditors at a Creditors' Meeting or an order of the Court.
(c) Notwithstanding clause 112.2(b), each Scheme Administrator will be appointed with, and shall have at all times, all of the powers, obligations, functions and duties of the Scheme Administrators under the Schemes, and those powers and functions may be exercised jointly or severally or jointly and severally.
(d) If a Scheme Administrator ceases to be a Scheme Administrator, a person may be appointed in his or her place only if approved by a special resolution of the Scheme Creditors at a Creditors' Meeting or an order of the Court.
(e) A Scheme Administrator ceases to be a Scheme Administrator if he or she:
(i) ceases to be qualified pursuant to section 411(7) of the Corporations Act;
(iii) is, having received at least 1 month's notice in writing of the proposed resolution and an opportunity to speak to the proposed resolution, removed from office by a special resolution of the Scheme Creditors at a Creditors' Meeting or an order of the Court;
(iv) becomes of unsound mind or a person whose person or estate is liable to be dealt with in any way under the law relating to mental health;
(v) becomes bankrupt; or
(vi) dies.
The Scheme Administrators shall have the following powers:
(i) to administer and supervise the carrying out of the Schemes;
(ii) to manage and control the business, Property and affairs of the Lift Companies; and
(iii) to manage, control, realise and apply the Scheme Assets.
In addition to, and without limiting, their powers under clause 12.3, the Scheme Administrators shall have the following powers:
(a) to take possession of, or do all such things as are necessary to take possession of the moneys in, or the moneys obliged to be paid into, the Scheme Funds;
(b) to determine Scheme Claims in accordance with the provisions of these Schemes;
(c) to otherwise negotiate, compromise, settle, waive, or enter into an arrangement with respect to, a Scheme Claim;
(d) to administer the moneys in the Scheme Funds for the payment of Established Scheme Claims in accordance with the provisions of these Schemes;
(e) to make distributions of the moneys in the Scheme Funds for the payment of Established Scheme Claims as provided in these Schemes;
(f) to consult with, and convene and hold meetings of, the Creditors' Committee in accordance with clause 13;
(g) to convene and hold Creditors' Meetings in accordance with clause 14;
(h) to institute or defend any proceedings in their own name or in the name of, and on behalf of, the Lift Companies;
(i) to rank and claim in bankruptcy, insolvency or analogous proceedings in their own name or in the name of, and on behalf of, the Lift Companies;
(j) to apply to the Court in for directions about any matter relating to the Schemes;
(k) to appoint a solicitor, accountant, barrister or other professionally qualified person or persons to assist the Scheme Administrators;
(l) to borrow and invest money, and to make any payment, necessary or convenient for the purposes of administering the Schemes;
(m) to open and maintain a bank account or accounts for giving effect to the purposes of the Schemes and to permit any person authorised by the Scheme Administrators to operate on any such account or accounts;
(n) to apply all and any income earned by way of interest on any bank account as income under the Schemes and to require the Lift Companies to account for such interest in the income tax returns of [the Lift Companies] and to have the Lift Companies pay any such income tax arising from the earning of such interest. The funds generated by the earnings of interest are to be included in the Scheme Funds;
(o) to require the Lift Companies to do all acts and execute in the name and on behalf of the Lift Companies all deeds, receipts and other documents necessary to give effect to the terms of these Schemes;
(p) to access the Lift Companies' books, papers and other documents;
(q) to the extent that the Court has jurisdiction, to apply or to cause a Scheme Company to apply, to the Court in relation to any particular matter arising in the implementation of the Schemes;
(r) to do anything that is incidental to exercising a power set out in this clause; and
(s) to do anything else that is necessary or convenient for the purposes of administering the Schemes.
(a) The Scheme Administrators shall be entitled to:
(i) employ their partners and staff to assist them in the performance or exercise of their duties, obligations, responsibilities and powers under these Schemes; and
(ii) appoint agents to attend to any matter that the Scheme Administrators might attend to under these Schemes and which the Scheme Administrators are unable to do or it is unreasonable to expect the Scheme Administrators to do in person.
(i) instituting or defending any proceedings; or
(ii) ranking and claiming in bankruptcy, insolvency or analogous proceedings,
in their own name or in the name of, and on behalf of, the Lift Companies.
(c) Except as expressly provided, in exercising or performing any of their duties, obligations, responsibilities or powers under the Schemes, the Scheme Administrators are taken:
(i) to act as agent for the Lift Companies; and
(ii) not to act as, nor to have any of the duties of, a trustee.
(d) From the Effective Date, a person (other than the Scheme Administrators and Liquidators) cannot perform or exercise and must not purport to perform or exercise a function or power as an officer (as defined in the Corporations Act) of the Lift Companies except with the Scheme Administrators’ prior written approval.
(i) any debts, liabilities, obligations or claims of any kind whatsoever incurred by or on behalf of the Lift Companies, including, without limitation, any moneys borrowed and interest thereon and any contracts adopted or otherwise agreed and any stamp duty payable on the Schemes and any tax liable to be remitted or otherwise paid (Liabilities);
(ii) any loss or damage of any kind whatsoever caused by or as a result of any act, default or omission, including any payment to a Scheme Creditor, to which the Scheme Creditor is not entitled only by reason of change in law (Losses); or
(iii) any actions, suits, proceedings, accounts, claims or demands arising out of the Schemes or in relation to a Scheme Claim which may be commenced, incurred by or made by any person and all costs, charges and expenses incurred in respect thereof (Demands),
whether before, during or after the Effective Date, unless attributable to negligence, breach of duty, breach of trust, fraud or dishonesty.
(b) References in clause 12.6(a) to "Scheme Administrators" include any person or body corporate or incorporate authorised to act on their behalf under the Schemes.
(a) The Lift Companies will indemnify and keep indemnified the Scheme Administrators, for:
(i) their remuneration, costs, fees and expenses (including legal costs) payable pursuant to clause 12.8; and
(ii) all Liabilities, Losses and Demands,
unless attributable to negligence, breach of duty, breach of trust, fraud or dishonesty.
(b) The indemnity under clause 12.7(a) shall take effect on and from the Effective Date and be without limitation as to time and shall enure for the benefit of the Scheme Administrators' respective legal personal representatives notwithstanding the removal of the Scheme Administrators and the appointment of replacement Scheme Administrators or the termination of the Schemes for any reason whatsoever.
(c) The indemnity under clause 12.7(a) shall not:
(i) be affected, limited or prejudiced in any way by any irregularity, defect or invalidity in the appointment of the Scheme Administrators and shall extend to all actions, suits, proceedings, accounts, liabilities, claims and demands arising in any way out of any defect in the appointment of the Scheme Administrators, the approval and execution of the Schemes or otherwise; or
(ii) affect or prejudice all or any rights that the Scheme Administrators may have in respect of the Scheme Funds or against any other person to be indemnified against the costs, charges, expenses and liabilities incurred by the Scheme Administrators of or incidental to the exercise or performance of any of the powers or authorities conferred on the Scheme Administrators by the Schemes or otherwise.
(d) Subject to the Corporations Act and any applicable law, the Lift Companies may insure themselves and any other person against any cost, charge, expense or liability with respect to which any person is entitled to be indemnified under clause 12.7(a).
(e) References in clause 12.7 to "Scheme Administrators" include any person or body corporate or incorporate authorised to act on their behalf under the Schemes.
(d) If the Creditors' Committee does not approve an invoice pursuant to clause 12.8(c), the Scheme Administrators may apply to the Court to approve payment of that invoice.
(e) An invoice approved by pursuant to clause 12.8(c) or 12.8(d) is to be paid from the moneys held in the Scheme Funds to the Scheme Administrators' firm, McGrath Nicol, of Level 31, 60 Margaret Street, Sydney, in the State of New South Wales.
On and from the Effective Date, the Committee of Inspection from time to time will be appointed as the Creditors' Committee under the Schemes.
13.2 When meeting may be convened
The Scheme Administrators:
(a) may at any time convene a meeting of the Creditors' Committee; and
(a) Except to the extent (if any) they are excluded or modified by or are inconsistent with the terms of the Schemes, sections 549, 550 and 551 of the Corporations Act and Corporations Regulations 5.6.11 to 5.6.36A apply to the Creditor's Committee, or meetings of the Creditors' Committee convened and held pursuant to this clause 13, as applicable.
13.4 Reports and Confidentiality
(a) Subject to clause 13.4(b), the Scheme Administrators will report to the Creditors' Committee on any matters which the Scheme Administrators consider should be brought to the attention of Creditors' Committee. Each report will be given when the Scheme Administrators consider it appropriate in their absolute discretion.
(c) Each member of the Creditors' Committee will not disclose or authorise the disclosure of information they receive as members of the Creditors' Committee and will only use that information for the purposes of exercising their functions pursuant to clause 13.5.
(a) The Creditors' Committee shall have the following functions:
(i) to receive and consider reports by the Scheme Administrators
(ii) to consult with the Scheme Administrators about matters relating to the Lift Companies and the Schemes;
(iii) to receive and consider a Scheme Administrators notice of resignation given in accordance with clause 12.2(e)(ii);
(iv) to consider and, if thought fit, approve the Scheme Administrators' remuneration in accordance with clause 12.8(a); and
(v) to do all other things specifically referred the Creditors' Committee in the Schemes.
(b) The Creditors' Committee has no power to make decisions binding on the Lift Companies or the Scheme Administrators.
(c) Without limiting this clause 13.5, the Creditors' Committee may exercise all of the powers and functions of the Committee of Inspection.
(i) any debts, liabilities, obligations or claims of any kind whatsoever incurred by or on behalf of the Lift Companies;
(ii) any loss or damage of any kind whatsoever caused by or as a result of any act, default or omission; or
(iii) any actions, suits, proceedings, accounts, claims or demands arising out of the Schemes or in relation to a Scheme Claim which may be commenced, incurred by or made by any person and all costs, charges and expenses incurred in respect thereof,
whether before, during or after the Effective Date, unless attributable to negligence, breach of duty, breach of trust, fraud or dishonesty.
(a) No member of the Creditors' Committee is entitled to claim or receive from the Lift Companies, the Scheme Funds, the Scheme Administrators or a Scheme Creditor any remuneration for acting as a member of the Creditors' Committee or any costs or expenses incurred by him or her in attending any meetings of the Creditors' Committee.
14. Creditors' Meetings
This clause 14 does not apply to the Scheme Meetings.
14.2 When meeting may be convened
The Scheme Administrators:
(a) may at any time convene a meeting of Scheme Creditors, or any class of Scheme Creditors;
(b) will convene a meeting of Scheme Creditors, or any class of the Scheme Creditors, if so requested in writing by way of a resolution of the Creditors' Committee, and the written request sets out the purpose of, and the wording of any resolution to be proposed at, the meeting; and
(c) will convene a meeting of Scheme Creditors if so requested in writing by Scheme Creditors the value of whose Established Scheme Claims are [10%] of the total amount of the Established Scheme Claims, and the written request sets out the purpose of, and the wording of any resolution to be proposed at, the meeting.
(a) Except to the extent (if any) they are excluded or modified by or are inconsistent with the terms of these Schemes, Corporations Regulations 5.6.11 to 5.6.36A apply to meetings of Scheme Creditors convened and held pursuant to this clause 14.
(b) Unless the contrary is proved, meetings of Scheme Creditors convened and held pursuant to this clause 14 are taken to have been properly convened and all proceedings are taken to have properly occurred.
Subject to any rights of appeal under section 1321 of the Corporations Act, no Scheme Creditor may institute or continue any proceedings:
(a) against the Lift Companies in relation to or in anyway relating to a Scheme Creditor’s Scheme Claim; or
(b) in relation to any act, default or omission of a Scheme Administrator, Liquidator, member of the Creditors' Committee, other Scheme Creditor or any person or body corporate or incorporate acting on their behalf, in exercising their powers, obligations, functions or duties under these Schemes,
without the Scheme Administrators' written consent.
16.1 Termination of these Schemes
These Schemes will terminate on the earlier of any of the following:
(a) the Scheme Administrators have distributed all of the Scheme Funds as required under clause 8.10 and the Liquidators are of the view that there will be no further Liquidator Recoveries; or
(b) all of the Established Scheme Claims have been discharged.
16.2 Consequences of termination
(a) Termination of these Schemes does not affect any accrued rights or remedies of any party.
(b) The following provisions of these Schemes (and all other provisions necessary to give effect to those provisions) will continue to apply notwithstanding termination of the Schemes: clauses 9.1, 9.2, 9.3, 9.4, 11, 12.6, 12.7, 12.8, 13.3(b), 13.5, 13.6, 13.7, 16, 17.4, 17.5(a) and 17.6.
17.1 Further Scheme Creditor assurances and consents
(a) Each Scheme Creditor will do all things and execute all deeds, instruments, transfers or other documents as may be necessary or desirable to give full effect to the terms of these Schemes and the transactions contemplated by it.
(b) Each Scheme creditor irrevocably consents to the Lift Companies, the Scheme Administrators and the Liquidators doing all things and executing all deeds, instruments, transfers or other documents as may be necessary or desirable to give full effect to the terms of these Schemes and the transactions contemplated by these Schemes and without the need for any further act by that Scheme Creditor.
17.2 Alterations and conditions to these Schemes
If the Court proposes to approve these Schemes subject to any alterations or conditions, the Liquidators may consent on behalf of Scheme Creditors to those alterations or conditions.
17.3 Notice to Scheme Companies and Scheme Administrators
(a) Any notice to be given to the Scheme Administrators or a Scheme Company under or in relation to the Schemes (or any of them) must be given in writing and may be given by:
(i) hand delivery;
(ii) pre-paid post;
(iii) facsimile transmission;
(iv) email; or
(v) such other method as may be determined by the Scheme Administrators.
(b) Notice to be given to the Scheme Administrators or a Scheme Company is to be given to them at:
(i) McGrath Nicol, Level 31, 60 Margaret St, Sydney; or
(ii) such other address as the Scheme Administrators may notify to Scheme Creditors for the purpose of this clause 17.3.
17.4 Notice to Scheme Creditors
Notices and any other written communications or documents to be given to Scheme Creditors pursuant to the Schemes may be given by:
(a) hand delivery;
(b) pre-paid post;
(c) facsimile transmission; or
(d) email,
to the last postal address, facsimile number or email address (as applicable) as advised by each Scheme Creditor to the Liquidators or Scheme Administrators and will be deemed to have been received by each Scheme Creditor if sent to that postal address, facsimile number or email address.
(a) Notice to the Scheme Creditors will be deemed to have been given:
(i) by pre-paid post, on the second day following the day on which it is posted;
(ii) by hand delivery, on the day of delivery if delivered during business hours at the place of delivery or if not during business hours, the next Business Day;
(iii) by facsimile transmission, on the date of transmission if delivered during business hours at the place the facsimile is sent to or, if not during business hours, the next Business Day; or
(iv) by email, on the date the email was sent if sent during business hours at the place the email is sent or, if not sent during business hours, the next Business Day.
(b) Notice to the Scheme Administrators or a Scheme Company will be given on the date the notice is received by the Scheme Administrators (and will not be deemed to have been given any sooner than that date).
17.6 Governing law and jurisdiction
These Schemes are governed by the laws of New South Wales. Each party submits to the non-exclusive jurisdiction of courts exercising jurisdiction there in connection with matters concerning these Schemes.
Annexure 1 – Scheme Deed of Release and Indemnity
| Scheme Deed of Release and Indemnity
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|
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| Lift Capital Partners Pty Limited (in liquidation) Lift Capital Nominees No 1 Pty Limited (in liquidation) Anthony McGrath Joseph Hayes Merrill Lynch International Merrill Lynch International (Australia) Ltd The Lift Clients (as defined) |
| Allens Arthur Robinson Level 28 Deutsche Bank Place Corner Hunter and Phillip Streets Sydney NSW 2000 Australia Tel +61 2 9230 4000 Fax +61 2 9230 5333 www.aar.com.au
© Copyright Allens Arthur Robinson, Australia 2009
|
Table of Contents
1. Definitions and Interpretation 2
1.1 Definitions 2 1.2 Interpretations 4
2. Obligations under the Schemes and the Scheme Implementation Agreement 5
3. Release, covenant and indemnity by the Lift Clients 5
3.1 Release by the Lift Clients 5
3.2 Covenant by the Lift Clients 5
3.3 Indemnity from the Lift Clients 6
3.4 Limitation on Indemnity 6
4. Release and covenant by the Lift Companies and the Liquidators 6
4.1 Release by the Liquidators and the Lift Companies 6
4.2 Covenant by the Liquidators and the Lift Companies 6
5. Release and covenant by Merrill Lynch 7
5.1 General release by Merrill Lynch 7
5.2 Covenant by Merrill Lynch 7
6. Trust 7
7. Liability 7
8. Termination 8
9. Related Bodies Corporate 8
10. Acknowledgment and Representation 8
11. Entire Agreement 8
12. Assignment 8
13. No Waiver 8
14. Bar to Proceedings 9
15. Further Assurances 9
16. No Merger 9
17. Governing Law and Jurisdiction 9
18. Counterparts 9
Schedule 1 – Client ID 12
| Date | 2009 |
| Parties |
|
| 1. | Lift Capital Partners Pty Limited (in liquidation) (ACN 111 015 500) registered in Victoria of c/- McGrath Nicol, Level 31, 60 Margaret Street Sydney NSW 2000 (Lift Capital) |
| 2. | Lift Capital Nominees No 1 Pty Limited (in liquidation) (ACN 112 913 532) registered in Victoria of c/- McGrath Nicol, Level 31, 60 Margaret Street Sydney NSW 2000 (Lift Nominees) |
| 3. | Anthony McGrath and Joseph Hayes in their capacity as liquidators of Lift Capital and Lift Nomineesof McGrath Nicol, Level 31, 60 Margaret Street Sydney NSW 2000 (the Liquidators) |
| 4. | Merrill Lynch International (ARBN 125 336 567) incorporated in the United Kingdom of 2 King Edward Street London EC1A 1HQ United Kingdom (MLI). |
| 5. | Merrill Lynch International (Australia) Ltd (ACN 002 892 846) of Level 38, Governor Philip Tower, 1 Farrer Place Sydney NSW 2000 (MLIA) |
| 6. | The Lift Clients (as defined) |
| Recitals |
|
| B | The Liquidators were appointed as liquidators of the Lift Companies on 12 November 2008, having previously acted as the administrators of those companies from 10 April 2008 until 12 November 2008. |
| C | The Liquidators, in their capacity as liquidators of the Lift Companies, have foreshadowed claims against Merrill Lynch arising from the transfer by Lift Nominees of certain securities, that it previously held on behalf of Lift Clients, to Merrill Lynch and which were subsequently sold by Merrill Lynch. |
| D | The Lift Clients, or some of them, have foreshadowed claims against Merrill Lynch and the Lift Companies arising from the transfer by Lift Nominees of certain securities, that it previously held on behalf of Lift Clients, to Merrill Lynch and which were subsequently sold by Merrill Lynch. |
| E | Merrill Lynch denies any liability in respect of any of the foreshadowed claims. Merrill Lynch has foreshadowed cross-claims against the Lift Companies in the event that proceedings are brought against them by the Lift Companies or the Lift Clients. |
| F | Lift Capital, Lift Nominees, the Liquidators, MLI and MLIA have entered into a Scheme Implementation Agreement dated 10 November 2009 which sets out a basis for the resolution of the claims foreshadowed by the Liquidators and the Lift Clients and the cross-claims foreshadowed by Merrill Lynch. |
It is agreed as follows.
The following definitions apply unless the context requires otherwise.
Administration means the administration of the Lift Companies pursuant to Part 5.3A of the Corporations Act, which commenced on the appointment of administrators on 10 April 2008.
Business Day means any day that is each of the following:
(a) a Business Day within the meaning given in the ASX Listing Rules; and
(b) a day that banks are open for business in New South Wales.
Cash Contribution means $10.3 million.
Claim means any debt, claim, cause of action, proceeding, suit, liability or demand which arose prior to the date of this Deed (whether prospective or contingent, including one the amount of which is not ascertained, and including causes of action, provable claims in a liquidation or under the terms of a deed of company arrangement and costs (whether or not the subject of a court order)) and which arose out of or in connection with any facts, matters or circumstances relating in any way to the Lift Companies including:
(a) the business of the Lift Companies;
(b) the Administration or Liquidation of the Lift Companies;
(c) the transfer of securities by the Lift Companies to Merrill Lynch and its Related Bodies Corporate in the period from 7 June 2005 to 10 April 2008;
(d) the sell-down of securities transferred by the Lift Companies to Merrill Lynch conducted by Merrill Lynch in the period from 10 April 2008 to 17 April 2008;
(e) the retention by Merrill Lynch of securities transferred by the Lift Companies to Merrill Lynch in the period after 10 April 2008;
(f) the Transaction Documents; or
(g) the circumstances or matters referred to in the NSW Proceeding or the WA Proceeding.
Corporations Act means the Corporations Act 2001 (Cth).
Effective means, when used in relation to the Schemes, the coming into effect, pursuant to section 411(10) of the Corporations Act, of the orders of the Court under section 411(4)(b) (and, if applicable, section 411(6)) of the Corporations Act in relation to the Schemes.
Financial Product has the meaning given in the Corporations Act.
Lift Client means:
(a) any Scheme Creditor who transferred, or asserts it transferred, any Financial Product to a Lift Company;
(b) any Scheme Creditor who instructed, or asserts it instructed, a Lift Company to purchase any Financial Product on its behalf or to be held to its account; or
(c) any person who entered into a facility agreement with Lift Capital and borrowed money from Lift Capital to purchase securities and who, arising out of the transfer by Lift Nominees of securities that it held on behalf of that person to Merrill Lynch, has a debt or claim admissible to proof against one or both of the Lift Companies within the meaning of section 553 of the Corporations Actor their assignees
and includes the persons named in the Lift Companies' records as the account holders of the accounts listed by number under the heading "Client ID" in Schedule 1 to this Deed.
Lift Companies means Lift Capital Partners Pty Limited (in liquidation) and Lift Capital Nominees No 1 Pty Limited (in liquidation) or either one of them, as applicable.
Liquidation means the liquidation of the Lift Companies which commenced on the appointment of Liquidators on 8 November 2008.
Merrill Lynch means MLI and MLIA or either one of them, as applicable.
NSW Proceeding means Supreme Court of NSW Proceeding No 2661 of 2008 between the Lift Companies, the Liquidators, Merrill Lynch and others.
Related Body Corporate has the meaning given in the Corporations Act.
Related Entity means, in relation to a person, a Related Body Corporate, officer, employee or agent of the person or an officer, employee or agent of a Related Body Corporate of the person.
Release Date has the meaning given to it in the Schemes.
Scheme means a scheme of arrangement under Part 5.1 of the Corporations Act between a Lift Company and its Scheme Creditors, substantially in the form set out in Schedule 1 to the Scheme Implementation Agreement, or such other Scheme as the parties may agree in writing, and a reference to Schemes shall be a reference to both a Scheme between Lift Capital and its Scheme Creditors and to a Scheme between Lift Nominees and its Scheme Creditors.
Scheme Applicationmeans an application by the Liquidators for the Court to make orders approving the Schemes under section 411(4)(b) of the Corporations Act.
Scheme Claim means a Claim against a Lift Company, the circumstances giving rise to which occurred on or before 10 April 2008.
Scheme Creditor means a creditor of a Lift Company with a Scheme Claim, excluding the Swaby and Crabb Claimants and Merrill Lynch.
Scheme Implementation Agreement means the Scheme Implementation Agreement between the Lift Companies, Merrill Lynch and the Liquidators dated 10 November 2009.
Surplus Securities means:
(a) the securities transferred by Lift Nominees to Merrill Lynch or its nominees and which are listed in Annexure 4 to the Schemes;
(b) cash in the amount of $4,662,537; and
(c) all other interest, dividends and other distributions received and continuing to be held by Merrill Lynch in respect of the Surplus Securities, whether received in the form of cash, securities or other assets.
Swaby and Crabb Claimantsmeans Ms Gillian Swaby, Mr Rick Crabb and Mr Rick Crabb and Ms Carol Crabb as trustee of the Intermax Trust.
Transaction Documents means:
(a) Australian Master Securities Lending Agreement between Lift Capital and Merrill Lynch Equities (Australia) Limited dated 7 June 2005;
(b) the Global Master Securities Lending Agreements between Lift Capital and MLIA dated 13 February 2007;
(c) the Global Master Securities Lending Agreements between Lift Capital and MLI dated 13 February 2007 (including a UK Tax Addendum);
(d) the International Prime Broking Agreement between MLI and Lift Capital dated 12 March 2007;
(e) the Australian Addendum to International Prime Broking Agreement between MLI, MLIA and Lift Capital dated 13 February 2007;
(f) the International Prime Broking Agreement between MLI and Lift Capital dated 21 November 2007;
(g) the Australian Addendum to International Prime Broking Agreement between MLI, MLIA and Lift Capital dated 21 November 2007;
WA Proceeding means Proceeding WAD 66 of 2008 in the Federal Court of Australia between the Swaby and Crabb Claimants, Lift Capital, MLI, MLIA and various Related Body Corporates of Merrill Lynch.
Headings are for convenience only and do not affect interpretation. The following rules apply unless the context requires otherwise.
(a) The singular includes the plural, and the converse also applies.
(b) If a word or phrase is defined, its other grammatical forms have a corresponding meaning.
(c) A reference to a clause is a reference to a clause of this Deed.
(d) A reference to an agreement or document (including a reference to this Deed) is to the agreement or document as amended, supplemented, novated or replaced, except to the extent prohibited by this Deed or that other agreement or document.
(e) A reference to writing includes any method of representing or reproducing words, figures, drawings or symbols in a visible and tangible form.
(f) A reference to a party to this Deed or another agreement or document includes the party's successors, permitted substitutes and permitted assigns (and, where applicable, the party's legal personal representatives).
(g) A reference to legislation or to a provision of legislation includes a modification or re‑enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it.
(h) A reference to a right or obligation of any two or more people comprising a single party confers that right, or imposes that obligation, as the case may be, on each of them severally and each two or more of them jointly. A reference to that party is a reference to each of those people separately (so that, for example, a representation or warranty by that party is given by each of them separately).
(i) Mentioning anything after includes, including, for example, or similar expressions, does not limit what else might be included.
(j) Nothing inthis Deed is to be interpreted against a party solely on the ground that the party put forward this Deed or a relevant part of it.
3. Release, covenant and indemnity by the Lift Clients
3.1 Release by the Lift Clients
With effect from the Release Date, each of the Lift Clients, acting through the Liquidators as its duly appointed agent and attorney, releases Merrill Lynch and each of its Related Entities from all Claims.
3.2 Covenant by the Lift Clients
The Lift Clients covenant in favour of Merrill Lynch and each other person in favour of whom a release is given under clause 11.2 not to bring or pursue, procure that a third party bring or pursue, provide financial support for or otherwise support any claim, action, dispute, demand or proceeding in any court or tribunal in respect of any matter which is the subject of a release under clause 11.2.
3.3 Indemnity from the Lift Clients
On and from the Release Date, each Lift Client indemnifies and will hold harmless Merrill Lynch and its Related Entities against any loss or liability to the extent arising from, related to or connected with:
(a) a breach by that Lift Client of clause 3.2; and
(i) a Claim by that Lift Client; or
(ii) a Claim by any transferee of a Claim of that Lift Client,
in each case, in respect of any matter that is the subject of a release under clause 3.1.
A Lift Client's total liability to Merrill Lynch and its Related Entities under clause 3.3(b) will be limited to, and must not exceed, the amount equal to the aggregate of:
(a) the amounts actually received by the Lift Client under the Schemes; and
(b) the proceeds actually received by the Lift Client or any transferees of Claims of the Lift Client in respect of any Third Party Claims (net of any costs and expenses incurred by the Lift Client or the transferees of Claims of the Lift Client in the Third Party Claims).
For the purposes of this clause 3.4, “Third Party Claim” means a Claim by the Lift Client, or a Claim by a transferee of a Claim of the Lift Client, referred to in clause 3.3(b)(i) or 3.3(b)(ii) in connection with which a claim for indemnification is made by Merrill Lynch or any of its Related Entities under clause 3.3.
4.1 Release by the Liquidators and the Lift Companies
With effect from the Release Date, the Lift Companies and the Liquidators (in their capacity as liquidators of the Lift Companies) release Merrill Lynch and each of its Related Entities from all Claims.
4.2 Covenant by the Liquidators and the Lift Companies
The Lift Companies and the Liquidators (in their capacity as liquidators of the Lift Companies) covenant in favour of Merrill Lynch and each other person in favour of whom a release is given under clause 11.4 not to bring or pursue, procure that a third party bring or pursue, provide financial support for or otherwise support any claim, action, dispute, demand or proceeding in any court or tribunal in respect of any matter which is the subject of a release under clause 11.4.
5.1 General release by Merrill Lynch
With effect from the Release Date, Merrill Lynch release the Lift Companies, each of their Related Bodies Corporate, the Liquidators (in their capacity as liquidators of the Lift Companies) and the Lift Clients from all Claims.
Merrill Lynch covenant in favour of the Lift Companies, the Liquidators (in their capacity as liquidators of the Lift Companies) and each other person in favour of whom a release is given under clause 5.1 not to bring or pursue, procure that a third party bring or pursue, provide financial support for or otherwise support any claim, action, dispute, demand or proceeding in any court or tribunal in respect of any matter which is the subject of a release under clause 5.1.
(a) The Liquidators agree to hold the Cash Contribution paid to them by Merrill Lynch pursuant to clause 6 of the Scheme Implementation Agreement in trust in an interest bearing account until released in accordance the remainder of this clause 6.
(b) In the event that a Scheme has ceased to be Effective prior to the Release Date, and remains ineffective on the Release Date, the Liquidators must, in accordance with any written direction of Merrill Lynch, return the Cash Contribution to Merrill Lynch together with any accrued interest on that amount.
(d) The Liquidators agree that, following the release of the Cash Contribution from trust in accordance with paragraph (c) above, they will make the Cash Contribution available to the administrators of the Schemes for distribution in accordance with the Schemes.
Each party does not, by entering into this deed, make any admission of liability to any other party.
9. Related Bodies Corporate
(a) It is not intended that any Related Body Corporate of a party will execute this Deed.
(b) To the extent that clauses 3, 4 and 5 purports to give a right or a benefit to Related Body Corporate of a party, the Related Body Corporate may enforce clauses 3, 4 and 5 of this Deed as if it were a party to the Deed.
Each party acknowledges that:
(i)
(ii) it is aware that it, its legal advisers or other agents or advisers may discover facts different from or in addition to the facts it now knows or believes to be true with respect to the subject matter of this Deed; and
(iii) it fully, finally, absolutely and forever settles according to the provisions of this Deed any and all Claims which it releases under clauses 3, 4 and 5.
This Deed, the Scheme Implementation Agreement and the Schemes contains the entire agreement between the parties with respect to its subject matter. It sets out the only conduct relied on by the parties and supersedes all earlier conduct and prior agreements and understandings between the parties in connection with its subject matter.
A party cannot assign, charge, encumber or otherwise deal with any of its rights or obligations under this Deed, or attempt or purport to do so, without the prior written consent of each other party.
A failure to exercise or a delay in exercising any right, power or remedy under this Deed does not operate as a waiver. A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the party granting that waiver unless made in writing.
Each party must do anything necessary or desirable (including executing agreements and documents) to give full effect to this Deed and the transactions contemplated by it.
The rights and obligations of the parties will not merge on the completion of any transaction contemplated by this Deed. They will survive the execution and delivery of any assignment or other document entered into for the purpose of implementing a transaction.
This Deed is governed by the laws of New South Wales. Each party submits to the exclusive jurisdiction of courts exercising jurisdiction there with respect to any legal action or proceedings arising out of or in connection with or in any way related to this Deed or its subject matter, and waives any right to object to the venue or to claim that those courts are an inconvenient forum or that the courts or another place are a more appropriate forum.
This Deed may be executed in any number of counterparts. All counterparts together will be taken to constitute one instrument.
Executed as a Deed in Sydney.
| Signed by Lift Capital Partners Pty Limited (in liquidation) (ACN 111 015 500) by its joint and several liquidator in the presence of: |
| |
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| |
| Witness Signature |
| Anthony Gregory McGrath / Joseph David Hayes |
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| Print Name | ||
| Signed by Lift Capital Nominees No 1 Pty Limited (in liquidation) (ACN 112 913 532) by its joint and several liquidator in the presence of: |
| |
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| |
| Witness Signature |
| Anthony Gregory McGrath / Joseph David Hayes |
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| Print Name | ||
| Signed, sealed and delivered by Anthony Gregory McGrath in the presence of: |
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| Witness Signature |
| Signature |
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| Print Name | ||
| Signed, sealed and delivered by Joseph David Hayes in the presence of: |
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| |
| Witness Signature |
| Signature |
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| Print Name | ||
| Signed, sealed and delivered for Merrill Lynch International (ARBN 125 336 567) by its attorney in the presence of: |
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| Authorised Representative Signature | |||
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| Witness Signature | Print Name | ||
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| Print Name | Position |
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| Executed as a deed in accordance with section 127 of the Corporations Act 2001 by Merrill Lynch International (Australia) Ltd (ACN 002 892 846): |
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| Director Signature |
| Director/Secretary Signature |
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| Print Name | Print Name | |
| Signed, sealed and delivered by Joseph David Hayes as attorney for each Lift Client in the presence of: |
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| Witness Signature |
| Signature |
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Schedule 1 – Client ID
| 88831 | 109222 | 110994 | 120182 | 125294 | 128614 | 131997 | 134310 | 136680 | 8899523 |
| 88832 | 109223 | 111048 | 120271 | 125386 | 128638 | 132035 | 134314 | 136688 | 8899691 |
| 89203 | 109224 | 111519 | 120309 | 125541 | 128743 | 132045 | 134327 | 136696 | 8899714 |
| 91176 | 109227 | 112637 | 120327 | 125595 | 128752 | 132047 | 134334 | 136848 | 8899716 |
| 92885 | 109230 | 112838 | 120329 | 125740 | 128838 | 132049 | 134503 | 136872 | 8899718 |
| 94326 | 109231 | 113522 | 120660 | 125750 | 128853 | 132063 | 134509 | 136922 | 8899848 |
| 95583 | 109232 | 113712 | 120745 | 125774 | 128867 | 132077 | 134525 | 136958 | 88100165 |
| 95615 | 109268 | 114130 | 120771 | 125872 | 128869 | 132550 | 134591 | 136967 | 88100213 |
| 96471 | 109269 | 114164 | 120844 | 125994 | 128878 | 132584 | 134609 | 137135 | 88100284 |
| 96780 | 109273 | 114171 | 120903 | 126367 | 128906 | 132598 | 134620 | 137176 | 88100292 |
| 97213 | 109275 | 114319 | 120906 | 126375 | 128916 | 132612 | 134631 | 137397 | 88100469 |
| 97218 | 109380 | 114380 | 120947 | 126461 | 128917 | 132655 | 134636 | 137466 | 88100511 |
| 97265 | 109383 | 115031 | 120981 | 126518 | 128920 | 132750 | 134645 | 137477 | 88100513 |
| 97450 | 109397 | 115269 | 121010 | 126552 | 128923 | 132792 | 134694 | 137529 | 88100808 |
| 97454 | 109400 | 115284 | 121047 | 126646 | 128924 | 132886 | 134735 | 137536 | 88101312 |
| 97657 | 109401 | 115312 | 121119 | 126660 | 128929 | 132909 | 134769 | 137552 | 88101505 |
| 97930 | 109403 | 115466 | 121140 | 126714 | 128930 | 132993 | 134794 | 137566 | 88101608 |
| 97931 | 109425 | 115773 | 121284 | 127077 | 129012 | 132997 | 134797 | 137583 | 88101681 |
| 98434 | 109427 | 115784 | 121290 | 127083 | 129021 | 133047 | 134809 | 137588 | 88102534 |
| 98444 | 109428 | 116494 | 121338 | 127217 | 129047 | 133052 | 134851 | 137590 | 88102562 |
| 98516 | 109435 | 116545 | 121378 | 127229 | 129055 | 133173 | 134869 | 137592 | 88102565 |
| 98580 | 109440 | 116563 | 121877 | 127280 | 129149 | 133435 | 134941 | 137593 | 88102567 |
| 98629 | 109544 | 117093 | 121882 | 127385 | 129155 | 133003 | 134947 | 137624 |
|
| 99101 | 109549 | 117132 | 122003 | 127538 | 129198 | 133171 | 134980 | 137625 |
|
| 99108 | 109656 | 117218 | 122039 | 127574 | 129232 | 133459 | 135029 | 137626 |
|
| 99113 | 109659 | 117343 | 122056 | 127936 | 129268 | 133463 | 135052 | 137627 |
|
| 99214 | 109660 | 117489 | 122123 | 127937 | 129274 | 133516 | 135061 | 137629 |
|
| 100031 | 109661 | 117575 | 122131 | 128042 | 129279 | 133521 | 135167 | 137632 |
|
| 103438 | 109668 | 117671 | 122235 | 127413 | 129286 | 133535 | 135180 | 137637 |
|
| 106281 | 109727 | 117719 | 122290 | 127739 | 129302 | 133539 | 135193 | 137643 |
|
| 106714 | 109745 | 117748 | 122414 | 128001 | 129413 | 133590 | 135199 | 8898824 |
|
| 106796 | 109746 | 118246 | 122527 | 128062 | 129426 | 133697 | 135210 | 8898826 |
|
| 107066 | 109748 | 118395 | 122537 | 128075 | 129452 | 133711 | 135276 | 8898835 |
|
| 107270 | 109749 | 118397 | 122549 | 128093 | 129455 | 133773 | 135277 | 8898860 |
|
| 107610 | 109751 | 118532 | 122603 | 128119 | 129473 | 133785 | 135284 | 8898865 |
|
| 107616 | 109801 | 118654 | 122646 | 128146 | 129606 | 133792 | 135346 | 8898873 |
|
| 107884 | 109804 | 118730 | 122754 | 128169 | 129821 | 133803 | 135352 | 8898934 |
|
| 108013 | 109805 | 118791 | 123003 | 128208 | 130001 | 133809 | 135358 | 8898998 |
|
| 108026 | 109806 | 118804 | 123282 | 128234 | 130113 | 133920 | 135469 | 8899007 |
|
| 108204 | 109807 | 118815 | 123287 | 128235 | 130121 | 133931 | 135690 | 8899051 |
|
| 108219 | 109929 | 118823 | 123437 | 128236 | 130216 | 133934 | 135721 | 8899072 |
|
| 108502 | 109937 | 118835 | 123553 | 128417 | 130223 | 133942 | 135839 | 8899074 |
|
| 108701 | 109950 | 118875 | 123801 | 128434 | 130369 | 133964 | 135879 | 8899077 |
|
| 108702 | 109961 | 118931 | 123891 | 128457 | 130456 | 133965 | 135947 | 8899130 |
|
| 108769 | 109969 | 118939 | 124484 | 128466 | 130533 | 134025 | 136059 | 8899133 |
|
| 108828 | 109972 | 119005 | 124542 | 128478 | 130564 | 134027 | 136079 | 8899174 |
|
| 108889 | 110223 | 119013 | 124549 | 128495 | 130898 | 134045 | 136094 | 8899185 |
|
| 109012 | 110229 | 119029 | 124641 | 128517 | 130931 | 134123 | 136261 | 8899239 |
|
| 109022 | 110232 | 119063 | 124782 | 128543 | 130996 | 134196 | 136266 | 8899245 |
|
| 109112 | 110285 | 119101 | 124847 | 128548 | 131005 | 134198 | 136327 | 8899248 |
|
| 109117 | 110410 | 119415 | 124881 | 128550 | 131269 | 134207 | 136447 | 8899293 |
|
| 109211 | 110433 | 119490 | 124911 | 128554 | 131327 | 134213 | 136500 | 8899364 |
|
| 109213 | 110438 | 119547 | 124941 | 128555 | 131460 | 134273 | 136509 | 8899366 |
|
| 109214 | 110512 | 119585 | 124960 | 128558 | 131690 | 134278 | 136529 | 8899422 |
|
| 109218 | 110624 | 119720 | 125027 | 128563 | 131753 | 134285 | 136530 | 8899486 |
|
| 109219 | 110742 | 120035 | 125150 | 128568 | 131852 | 134297 | 136576 | 8899489 |
|
| 109220 | 110770 | 120154 | 125287 | 128604 | 131966 | 134305 | 136599 | 8899490 |
|
Annexure 2 – Ratification Deed Poll
Ratification Deed Poll |
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| Given by [*] in favour of each party to the Scheme Deed of Release and Indemnity other than the Lift Clients
|
| Allens Arthur Robinson Level 28 Deutsche Bank Place Corner Hunter and Phillip Streets Sydney NSW 2000 Australia Tel +61 2 9230 4000 Fax +61 2 9230 5333 www.aar.com.au
© Copyright Allens Arthur Robinson, Australia 2009
|
| Date |
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| By | [Name] of [Address] 2000 (the Foreign Scheme Creditor) |
| In favour of | Each party to the Scheme Deed of Release and Indemnity other than the Lift Clients |
| Recitals |
|
| A | The parties to the Scheme Deed of Release and Indemnity are the Lift Companies, the Liquidators, MLI, MLIA and the Lift Clients. |
| B | The Liquidators executed the Scheme Deed of Release and Indemnity as agent and attorney of each Lift Client (including the Foreign Scheme Creditor) in accordance with the Schemes. |
| C | The Foreign Scheme Creditor is entering into this Deed Poll for the purposes of ratifying the execution of the Scheme Deed of Release and Indemnity by the Liquidators and confirming that it is bound by and will comply with the Scheme Deed of Release and Indemnity. |
It is declared as follows.
In this Deed Poll:
(a) Scheme Deed of Release and Indemnity means the deed contained as Annexure A to this Deed Poll which was executed by its parties on [*]; and
(b) terms defined in the Scheme Deed of Release and Indemnity have the same meaning in this Deed Poll, unless the context requires otherwise.
The provisions of clause 1.2 of the Scheme Deed of Release and Indemnity form part of this Deed Poll as if set out in full in this Deed Poll, and on the basis that references to "this Deed" in that clause are references to "this Deed Poll".
2. Ratification
The Foreign Scheme Creditor hereby:
(a) ratifies and approves the execution of the Scheme Deed of Release and Indemnity by the Liquidators (or any of them) as agents and attorneys of the Foreign Scheme Creditor; and
(b) confirms that it is bound by and undertakes to comply with all obligations of a Scheme Creditor under the Schemes and of a Lift Client under the Scheme Deed of Release and Indemnity.
3.1 Governing law and jurisdiction
This Deed Poll is governed by the laws of the State of New South Wales, Australia. All questions regarding this Deed Poll, including (without limitation) questions relating to execution, interpretation and construction, are to be answered by reference to the laws of the State of New South Wales, Australia. The Foreign Scheme Creditor submits to the exclusive jurisdiction of the courts of New South Wales and the Commonwealth of Australia and waives any right to claim that those courts are an inconvenient forum.
3.2 Variation
A provision of this Deed Poll or any right created under it may not be varied, altered or otherwise amended unless the variation is agreed in writing by each of the parties to the Scheme Deed of Release and Indemnity other than the Lift Clients, in which event the Foreign Scheme Creditor will enter into a further Deed Poll in favour of each of the parties to the Scheme Deed of Release and Indemnity other than the Lift Clients giving effect to the variation, alteration or amendment.
The rights and obligations of the Foreign Scheme Creditor under this Deed Poll are personal and must not be assigned or otherwise dealt with at law or in equity.
3.4 Further action
The Foreign Scheme Creditor will promptly do all things and execute and deliver all further documents necessary or expedient to give effect to this Deed Poll.
Executed and delivered as a Deed Poll
[Insert relevant execution clause]
Annexure A – Scheme Deed of Release and Indemnity
Annexure 3 – Scheme Administrator Deed Poll
| Scheme Administrator Deed Poll |
| |
| Given by [Anthony Gregory McGrath] / [Joseph David Hayes] in favour of each Lift Company and its Scheme Creditors |
| Allens Arthur Robinson Level 28 Deutsche Bank Place Corner Hunter and Phillip Streets Sydney NSW 2000 Australia Tel +61 2 9230 4000 Fax +61 2 9230 5333 www.aar.com.au
© Copyright Allens Arthur Robinson, Australia 2009
|
| Date |
|
| By | [Anthony Gregory McGrath] / [Joseph David Hayes] of McGrath Nicol of Level 31, 60 Margaret Street, Sydney NSW 2000 (the Scheme Administrator) |
| In favour of | Each Lift Company and its Scheme Creditors |
| Recitals |
|
| A | Each Lift Company and its Scheme Creditors is party to a Scheme. |
| B | Each Scheme Administrator has been appointed as a Scheme Administrator in accordance with the Schemes. |
| C | The appointment of each Scheme Administrator is subject to the execution and delivery of this Deed Poll. |
It is declared as follows.
1. Definitions and Interpretation
1.1 Definitions
In this Deed Poll:
(a) Scheme means a scheme of arrangement under Part 5.1 of the Corporations Act between a Lift Company and its Scheme Creditors, [which took effect on the date of this Deed Poll]/[to take effect on or about [*]], and a reference to Schemes shall be a reference to both a Scheme between Lift Capital and its Scheme Creditors and to a Scheme between Lift Nominees and its Scheme Creditors; and
(b) terms defined in the Schemes have the same meaning in this Deed Poll, unless the context requires otherwise.
1.2 Interpretation
The provisions of clause 1.2 of the Schemes form part of this Deed Poll as if set out in full in this Deed Poll, and on the basis that references to "these Schemes" in that clause are references to "this Deed Poll".
2. Consent to Act
The Scheme Administrator consents to act as a Scheme Administrator in accordance with the terms and conditions of the Schemes.
The Scheme Administrator covenants in favour of each Lift Company and its Scheme Creditors that he will be bound by the terms of the Schemes as if he is a party to the Schemes.
The Scheme Administrator acknowledges and agrees that the benefit of this Deed Poll can be enforced directly by each Lift Company and each Scheme Creditor against the Scheme Administrator.
5. Continuing Obligations
This Deed Poll is irrevocable and remains in full force and effect until the earlier of:
(a) the Scheme Administrator having fully performed its obligations under this Deed Poll; and
(b) the Scheme Administrator ceasing to be a Scheme Administrator in accordance with clause 12.2(e) of the Schemes.
6. Notices
(a) Any notice to be given to the Scheme Administrator under or in relation to this Deed Poll must be given in writing and may be given by:
(i) hand delivery;
(ii) pre-paid post;
(iii) facsimile transmission;
(iv) email; or
(v) such other method as may be determined by the Scheme Administrator.
(b) Notice to be given to the Scheme Administrator is to be given to him at:
(i) McGrath Nicol, Level 31, 60 Margaret St, Sydney; or
(ii) such other address as the Scheme Administrator may notify to Scheme Creditors in accordance with clause 17 of the Schemes.
(c) Notice to the Scheme Administrator will be given on the date the notice is received by the Scheme Administrator (and will not be deemed to have been given any sooner than that date).
7. General
7.1 Governing law and jurisdiction
This Deed Poll is governed by the laws of New South Wales. The Scheme Administrator irrevocably submits to the non-exclusive jurisdiction of courts exercising jurisdiction there in connection with matters concerning this Deed Poll.
(a) A waiver of any right arising from a breach of this Deed Poll or of any right, power, authority, discretion or remedy arising upon default under this Deed Poll must be in writing and signed by the persons granting the waiver.
(b) A failure or delay in exercise, or partial exercise, of:
(i) a right arising from a breach of this Deed Poll; or
(ii) a right, power, authority, discretion or remedy created or arising upon default under this Deed Poll,
does not result in a waiver of that right, power, authority, discretion or remedy.
(c) The Scheme Administrator is not entitled to rely on a delay in the exercise or non-exercise of a right, power, authority, discretion or remedy arising from a breach of this Deed Poll or on a default under this Deed Poll as constituting a waiver of that right, power, authority, discretion or remedy.
The rights and remedies of the Scheme Administrator, the Lift Companies and the Scheme Creditors under this Deed Poll are in addition to other rights and remedies given by law independently of this Deed Poll.
7.4 Assignment
The rights and obligations of the Scheme Administrator, each Lift Company and each Scheme Creditor under this Deed Poll are personal and must not be assigned or otherwise dealt with at law or in equity.
7.5 Further action
The Scheme Administrator will promptly do all things and execute and deliver all further documents necessary or expedient to give effect to this Deed Poll and the transactions contemplated by it.
Executed and delivered as a Deed Poll in Sydney
| Signed Sealed and Delivered by [Anthony Gregory McGrath] / [Joseph David Hayes] in the presence of: |
| |
|
|
| |
| Witness Signature |
| Signature |
|
|
| |
| Print Name | ||
Annexure 4 – List of Surplus Securities
| Code | Investment Description | Quantity | ISIN |
| ABS | A.B.C LEARNING CENTRES LTD SHS | 500 | AU000000ABS3 |
| AFI | AUSTRALIAN FOUNDATION INVESTMENT CO LTD | 3,700 | AU000000AFI5 |
| AGIG | AINSWORTH 8.0 12/31/09 | 3,500 | AU00000AGIG5 |
| AIO | ASCIANO GROUP STAPLED SECURITY | 1,000 | AU000000AIO7 |
| ALR | ABERDEEN LEADERS LTD SHS | 22,600 | AU000000ALR4 |
| AMP | AMP LIMITED SHS | 146,103 | AU000000AMP6 |
| ANZ | AUSTRALIA & NEW ZEALAND BANKING GROUP LT | 797 | AU000000ANZ3 |
| APD | APN PROPERTY GROUP LTD SHS | 44,837 | AU000000APD5 |
| AUF | ASIAN MASTERS FUND LTD SHS | 818,000 | AU000000AUF0 |
| AUI | AUSTRALIAN UNITED INVESTMENT CO LTD SHS | 7,876 | AU000000AUI4 |
| AUUPA | AUSTCORP TOWE 9.7 PFD | 4,450 | AU0000AUUPA5 |
| AWC | ALUMINA LTD SHS | 2,194 | AU000000AWC3 |
| AXE | ARCHER EXPLORATION LTD SHS | 140,500 | AU000000AXE7 |
| AXEO | ARCHER EXP WT 02/13/10 | 67,500 | AU00000AXEO3 |
| BBI | BABCOCK & BROWN INFRASTRUCTURE GROUP STA | 31,500 | AU000000BBI2 |
| BHP | BHP BILLITON LTD SHS | 1,428 | AU000000BHP4 |
| BKI | BRICKWORKS INVESTMENT COMPANY LTD SHS | 334,540 | AU000000BKI3 |
| BKN | BRADKEN LTD SHS | 1,000 | AU000000BKN3 |
| BLG | BLUGLASS LTD SHS | 3,451,575 | AU000000BLG5 |
| BOL | BOOM LOGISTICS LTD SHS | 10,000 | AU000000BOL9 |
| CBA | COMMONWEALTH BANK OF AUSTRALIA SHS | 760 | AU000000CBA7 |
| CCQ | CONTANGO CAPITAL PARTNERS LTD SHS | 2,120 | AU000000CCQ1 |
| CDD | CARDNO LTD SHS | 10,822 | AU000000CDD7 |
| CEU | CONNECTEAST GROUP STAPLED SECURITIES | 4,908 | AU000000CEU9 |
| CIF | CHALLENGER INFRASTRUCTURE FUND | 13,500 | AU000000CIF1 |
| CMS | COMMSECURE LTD SHS | 2,953 | AU000000CMS6 |
| COH | COCHLEAR LIMITED SHS | 1,500 | AU000000COH5 |
| COJ | COMMSTRAT LTD SHS | 100,000 | AU000000COJ1 |
| COV | CORVETTE RESOURCES LTD SHS | 60,000 | AU000000COV6 |
| CSL | CSL LTD SHS | 4,217 | AU000000CSL8 |
| CTN | CONTANGO MICROCAP LTD SHS | 58,500 | AU000000CTN2 |
| CYA | CENTURY AUSTRALIA INVESTMENTS LTD SHS | 77,332 | AU000000CYA9 |
| DUI | DIVERSIFIED UNITED INVESTMENT LTD SHS | 170,012 | AU000000DUI8 |
| DVM | DVM INTERNATIONAL LTD SHS | 1,905 | AU000000DVM8 |
| DYL | DEEP YELLOW LTD SHS | 8,205 | AU000000DYL4 |
| EAL | E & A LIMITED SHS | 5,000 | AU000000EAL2 |
| EHL | EMECO HOLDINGS LTD SHS | 35,000 | AU000000EHL7 |
| EQN | EQUINOX MINERALS LTD CHESS DEPOSITORY IN | 910,317 | AU000000EQN4 |
| ESV | ESERVGLOBAL LTD SHS | 10,000 | AU000000ESV3 |
| ETT | ETT LTD SHS | 2,000,000 | NZPLKE0001S9 |
| FCLPA | FUTURI FRB 06/30/49 | 860 | AU0000FCLPA1 |
| FLT | FLIGHT CENTRE LTD SHS | 4,851 | AU000000FLT9 |
| FRE | FRESHTEL HOLDINGS LTD SHS | 3,704,931 | AU000000FRE8 |
| GINHA | GENERATO FRB 10/08/11 | 87 | AU0000GINHA9 |
| GMI | GLOBAL MINING INVESTMENTS LTD SHS | 83,116 | AU000000GMI8 |
| GOLD | ETFS METAL SECURITIES AUSTRALIA LTD REDE | 360 | AU00000GOLD7 |
| GPM | GEO PROPERTY GROUP LTD STAPLED SECURITY | 2,000 | AU000000GPM3 |
| HDF | HASTINGS DIVERSIFIED UTILITIES FUND, MEL | 8,000 | AU000000HDF1 |
| HHV | HUNTER HALL GLOBAL VALUE LTD SHS | 125,096 | AU000000HHV9 |
| HLG | HEDLEY LEISURE AND GAMING PROPERTY FUND | 4,914,849 | AU000000HLG2 |
| IAG | INSURANCE AUSTRALIA GROUP LTD SHS | 2,510 | AU000000IAG3 |
| IDL | INDUSTREA LTD SHS | 160,000 | AU000000IDL7 |
| IFM | INFOMEDIA LTD SHS | 280,000 | AU000000IFM0 |
| ILF | ING REAL ESTATE COMMUNITY LIVING GROUP | 45,376 | AU000000ILF2 |
| IMI | IM MEDICAL LIMITED SHS | 16,000 | AU000000IMI4 |
| IPDO | IMPEDIMED WT 10/24/12 | 3,000 | AU00000IPDO4 |
| KTE | K2 ENERGY LTD SHS | 7,500 | AU000000KTE4 |
| LML | LINCOLN MINERALS LTD SHS | 374,641 | AU000000LML2 |
| LMLO | LINCOLN MI WT 06/30/10 | 195,000 | AU00000LMLO8 |
| MEG | MCM ENTERTAINMENT GROUP LTD SHS | 489,084 | AU000000MEG7 |
| MHYHA | MAHOGA FRB 12/10/11 | 3,500 | AU0000MHYHA6 |
| MIR | MIRRABOOKA INVESTMENTS LTD SHS | 34,000 | AU000000MIR5 |
| MQG | MACQUARIE GROUP LTD SHS | 2,500 | AU000000MQG1 |
| MSCHE | MINERALS 10.5 12/31/09 | 10,000 | AU0000MSCHE1 |
| MTS | METCASH LTD SHS | 500 | AU000000MTS0 |
| MTY | MEDICAL THERAPIES LTD SHS | 150,000 | AU000000MTY8 |
| NAB | NATIONAL AUSTRALIA BANK LTD SHS | 2,114 | AU000000NAB4 |
| NCM | NEWCREST MINING LTD SHS | 675 | AU000000NCM7 |
| NFNG | NUFARM F FRB 04/29/49 | 112 | NZFCND0004S9 |
| NVT | NAVITAS LTD SHS | 1,048,682 | AU000000NVT2 |
| NWS | NEWS CORP CHESS DEPOSITORY INTERESTS | 100 | AU000000NWS2 |
| NXS | NEXUS ENERGY LTD SHS | 52,000 | AU000000NXS0 |
| OSH | OIL SEARCH LTD SHS | 600 | PG0008579883 |
| OZL | OZ MINERALS LTD SHS | 26,782 | AU000000OZL8 |
| PPT | PERPETUAL LTD SHS | 30 | AU000000PPT9 |
| PPX | PAPERLINX LTD SHS | 310 | AU000000PPX1 |
| PRN | PELSART RESOURCES NL | 2,500 | AU000000PRN8 |
| PRWOA | PROTO RESO WT 12/31/13 | 41,667 | AU0000PRWOA8 |
| PTM | PLATINUM ASSET MANAGEMENT LTD SHS | 32,500 | AU000000PTM6 |
| QBE | QBE INSURANCE GROUP LTD SHS | 340 | AU000000QBE9 |
| RCI | ROCKLANDS RICHFIELD LTD SHS | 2,617,855 | AU000000RCI6 |
| RCY | RIVERCITY MOTORWAY GROUP STAPLED SECURIT | 16,550 | AU000000RCY3 |
| REF | REVERSE CORP LTD SHS | 65,932 | AU000000REF8 |
| RHG | RHG LTD SHS | 160,000 | AU000000RHG9 |
| RMD | RESMED INC CHESS DEPOSITARY INTERESTS | 600 | AU000000RMD6 |
| ROC | ROC OIL COMPANY LIMITED SHS | 47,163 | AU000000ROC4 |
| SAKHA | SOUTHERN CROSS AIRPORTS CORPORATION HOLD | 100 | AU0000SAKHA7 |
| SHV | SELECT HARVESTS LIMITED SHS | 13,650 | AU000000SHV6 |
| SIP | SIGMA PHARMACEUTICALS LTD SHS | 68,000 | AU000000SIP6 |
| SLX | SILEX SYSTEMS LTD SHS | 250 | AU000000SLX4 |
| SRK | STRIKE RESOURCES LTD SHS | 2,807 | AU000000SRK8 |
| SRV | SERVCORP LIMITED SHS | 30,000 | AU000000SRV5 |
| STO | SANTOS LTD SHS | 744 | AU000000STO6 |
| STW | SPDR S&P/ASX 200 FUND | 143 | AU000000STW9 |
| SYL | SYLVASTATE LTD SYL SHS | 61,476 | AU000000SYL2 |
| TDO | 3D OIL LTD SHS | 87,500 | AU000000TDO8 |
| TIM | TIMBERCORP LTD SHS | 129,278 | AU000000TIM1 |
| TJN | TROJAN EQUITY LTD SHS | 53,350 | AU000000TJN7 |
| TLS | TELSTRA CORPORATION LTD SHS | 2,000 | AU000000TLS2 |
| TOL | TOLL HOLDINGS LTD SHS | 1,700 | AU000000TOL1 |
| TRG | TREASURY GROUP LTD SHS | 7,720 | AU000000TRG4 |
| TTS | TATTS GROUP LTD SHS | 780 | AU000000TTS5 |
| UGL | UNITED GROUP LTD SHS | 700 | AU000000UGL5 |
| USAO | URANIUMSA WT 01/18/10 | 20,000 | AU00000USAO9 |
| VBA | VIRGIN BLUE HOLDINGS LTD SHS | 1,700 | AU000000VBA7 |
| VID | VIDELLI LTD SHS | 8,400 | AU000000VID6 |
| VTP | VAN EYK THREE PILLARS LIMITED SHS | 2,227,875 | AU000000VTP7 |
| WBC | WESTPAC BANKING CORP SHS | 638 | AU000000WBC1 |
| WCN | WHITE CLIFF NICKEL LTD SHS | 20,000 | AU000000WCN6 |
| WDC | WESTFIELD GROUP STAPLED SECURITY | 8,793 | AU000000WDC7 |
| WESN | WESFARMERS LTD PARTIALLY PROTECTED SHS | 54 | AU00000WESN9 |
| WHF | WHITEFIELD LTD SHS | 321,071 | AU000000WHF1 |
| WIL | WILSON INVESTMENT FUND LTD SHS | 13,677 | AU000000WIL7 |
| WOR | WORLEYPARSONS LTD SHS | 156 | AU000000WOR2 |
| WOW | WOOLWORTHS LTD SHS | 1,701 | AU000000WOW2 |
| YLDSO1 | CITIGROUP FRB 07/22/10 | 39,000 | AU000YLDSO14 |
|
| Total Quantity Held | 26,428,187 |
|
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| NEW SOUTH WALES DISTRICT REGISTRY |
|
| GENERAL DIVISION | NSD 57 of 2010 |
IN THE MATTER OF LIFT CAPITAL PARTNERS PTY LIMITED (IN LIQUIDATION) (ACN 111 015 500)
| BETWEEN: | TONY SAAD PTY LTD (ACN 075 283 993) Plaintiff
|
| AND: | LIFT CAPITAL PARTNERS PTY LIMITED (IN LIQUIDATION) ACN 111 015 500 First Defendant
LIFT CAPITAL NOMINEES NO 1 PTY LIMITED (IN LIQUIDATION) (ACN 112 913 532) Second Defendant
ANTHONY GREGORY MCGRATH IN HIS CAPACITY AS LIQUIDATOR Third Defendant
JOSEPH DAVID HAYES IN HIS CAPACITY AS LIQUIDATOR Fourth Defendant
|
| JUDGE: | EMMETT J |
| DATE OF ORDER: | 8 FEBRUARY 2010 |
| WHERE MADE: | SYDNEY |
THE COURT ORDERS THAT:
1. The proceeding be dismissed.
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 |
|
| NEW SOUTH WALES DISTRICT REGISTRY |
|
| GENERAL DIVISION | NSD 58 of 2010 |
IN THE MATTER OF LIFT CAPITAL PARTNERS PTY LIMITED (IN LIQUIDATION) (ACN 111 015 500)
| BETWEEN: | BACNET PTY LTD ACN 115 594 075 First Plaintiff
BANCTRADE PTY LIMITED ACN 116 742 520 Second Plaintiff
BIOVEST PTY LTD ACN 109 842 480 Third Plaintiff
COLUMCILLE TRADING PTY LTD ACN 089 712 452 Fourth Plaintiff
FAMBROS (AUST) PTY LTD ACN 062 907 868 Fifth Plaintiff
FAMGROUP PTY LTD ACN 080 698 406 Sixth Plaintiff
FAMTRUST PTY LTD ACN 073 114 520 Seventh Plaintiff
FICTRADE PTY LTD ACN 098 744 391 Eighth Plaintiff
HYPERTRADE PTY LTD ACN 082 085 578 Ninth Plaintiff
JAMASCO PTY LTD ACN 116 543 741 Tenth Plaintiff
JOSMAR PTY LTD ACN 003 934 245 Eleventh Plaintiff
MLT TRADE PTY LTD ACN 117 845 735 Twelfth Plaintiff
MUSGARD PTY LTD ACN 070 790 671 Thirteenth Plaintiff
PAYTO PTY LTD ACN 060 491 063 Fourteenth Plaintff
PENNABROKER TRADING PTY LTD ACN 094 068 701 Fifteenth Plaintiff
RENTO PTY LTD ACN 070 953 865 Sixteenth Plaintiff
SHAREFUND PTY LTD ACN 081 342 869 Seventeenth Plaintiff
STOCKNET PTY LTD ACN 075 798 373 Eighteenth Plaintiff
TF TRADE PTY LTD ACN 100 880 939 Nineteenth Plaintiff
TOAUST PTY LTD ACN 071 131 532 Twentieth Plaintiff
TRADE 2 PTY LTD ACN 070 952 199 Twenty First Plaintiff
TRADESHARE (AUST) PTY LTD ACN 123 169 497 Twenty Second Plaintiff
TRADEX (AUST) PTY LTD ACN 121 379 173 Twenty Third Plaintiff
TRITRADE PTY LTD ACN 061 213 223 Twenty Fourth Plaintiff
VINANG PTY LTD ACN 082 546 549 Twenty Fifth Plaintiff
|
|
| LIFT CAPITAL PARTNERS PTY LIMITED (IN LIQUIDATION) ACN 111 015 500 First Defendant
LIFT CAPITAL NOMINEES NO 1 PTY LIMITED (IN LIQUIDATION) (ACN 112 913 532) Second Defendant
ANTHONY GREGORY MCGRATH IN HIS CAPACITY AS LIQUIDATOR Third Defendant
JOSEPH DAVID HAYES IN HIS CAPACITY AS LIQUIDATOR Fourth Defendant
|
| JUDGE: | EMMETT J |
| DATE OF ORDER: | 8 FEBRUARY 2010 |
| WHERE MADE: | SYDNEY |
THE COURT ORDERS THAT:
1. The proceeding be dismissed.
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 |
|
| NEW SOUTH WALES DISTRICT REGISTRY |
|
| GENERAL DIVISION |
|
IN THE MATTER OF LIFT CAPITAL PARTNERS PTY LIMITED (IN LIQUIDATION) (ACN 111 015 500)
NSD 1308 of 2009
|
| LIFT CAPITAL PARTNERS PTY LIMITED (IN LIQUIDATION) (ACN 111 015 500) First Plaintiff
LIFT CAPITAL NOMINEES NO 1 PTY LIMITED (IN LIQUIDATION) (ACN 112 913 532) Second Plaintiff
|
NSD 57 OF 2009
| BETWEEN: | TONY SAAD PTY LTD (ACN 075 283 993) Plaintiff
|
| AND: | LIFT CAPITAL PARTNERS PTY LIMITED (IN LIQUIDATION) ACN 111 015 500 First Defendant
LIFT CAPITAL NOMINEES NO 1 PTY LIMITED (IN LIQUIDATION) (ACN 112 913 532) Second Defendant
ANTHONY GREGORY MCGRATH IN HIS CAPACITY AS LIQUIDATOR Third Defendant
JOSEPH DAVID HAYES IN HIS CAPACITY AS LIQUIDATOR Fourth Defendant
|
NSD 58 OF 2010
| BETWEEN: | BACNET PTY LTD ACN 115 594 075 First Plaintiff
BANCTRADE PTY LIMITED ACN 116 742 520 Second Plaintiff
BIOVEST PTY LTD ACN 109 842 480 Third Plaintiff
COLUMCILLE TRADING PTY LTD ACN 089 712 452 Fourth Plaintiff
FAMBROS (AUST) PTY LTD ACN 062 907 868 Fifth Plaintiff
FAMGROUP PTY LTD ACN 080 698 406 Sixth Plaintiff
FAMTRUST PTY LTD ACN 073 114 520 Seventh Plaintiff
FICTRADE PTY LTD ACN 098 744 391 Eighth Plaintiff
HYPERTRADE PTY LTD ACN 082 085 578 Ninth Plaintiff
JAMASCO PTY LTD ACN 116 543 741 Tenth Plaintiff
JOSMAR PTY LTD ACN 003 934 245 Eleventh Plaintiff
MLT TRADE PTY LTD ACN 117 845 735 Twelfth Plaintiff
MUSGARD PTY LTD ACN 070 790 671 Thirteenth Plaintiff
PAYTO PTY LTD ACN 060 491 063 Fourteenth Plaintff
PENNABROKER TRADING PTY LTD ACN 094 068 701 Fifteenth Plaintiff
RENTO PTY LTD ACN 070 953 865 Sixteenth Plaintiff
SHAREFUND PTY LTD ACN 081 342 869 Seventeenth Plaintiff
STOCKNET PTY LTD ACN 075 798 373 Eighteenth Plaintiff
TF TRADE PTY LTD ACN 100 880 939 Nineteenth Plaintiff
TOAUST PTY LTD ACN 071 131 532 Twentieth Plaintiff
TRADE 2 PTY LTD ACN 070 952 199 Twenty First Plaintiff
TRADESHARE (AUST) PTY LTD ACN 123 169 497 Twenty Second Plaintiff
TRADEX (AUST) PTY LTD ACN 131 379 173 Twenty Third Plaintiff
TRITRADE PTY LTD ACN 061 213 223 Twenty Fourth Plaintiff
VINANG PTY LTD ACN 082 546 549 Twenty Fifth Plaintiff
|
|
| LIFT CAPITAL PARTNERS PTY LIMITED (IN LIQUIDATION) ACN 111 015 500 First Defendant
LIFT CAPITAL NOMINEES NO 1 PTY LIMITED (IN LIQUIDATION) (ACN 112 913 532) Second Defendant
ANTHONY GREGORY MCGRATH IN HIS CAPACITY AS LIQUIDATOR Third Defendant
JOSEPH DAVID HAYES IN HIS CAPACITY AS LIQUIDATOR Fourth Defendant
|
| JUDGE: | EMMETT J |
| DATE: | 8 FEBRUARY 2010 |
| PLACE: | SYDNEY |
REASONS FOR JUDGMENT
1 These three proceedings have been heard together. When the matters were originally called on for hearing, senior counsel for the plaintiffs in the second and third proceedings (together the Famularo Parties) foreshadowed an adjournment application. The basis for the application was that the Famularo Parties wished to adduce further evidence, which would take some weeks. The proceedings were conducted on the basis that Mr Anthony Famularo spoke for all of the Famularo Parties. I refused the adjournment application on the basis that there would be no utility in admitting the foreshadowed evidence.
2 The first proceeding, NSD1308 of 2009, has been brought under s 411 of the Corporations Act 2001 (Cth) (the Act). The plaintiffs in that proceeding, Lift Capital Partners Pty Limited (Lift Partners), and Lift Capital Nominees (No 1) Pty Limited (Lift Nominees), are both in liquidation. On 27 November 2009, I ordered that meetings of creditors of Lift Partners and Lift Nominees be convened for the purpose of considering proposed schemes of arrangement between those two companies and their creditors. I described the principal effects of the proposed schemes in my reasons of that day (see In the matter of Lift Partners Pty Limited and Lift Nominees No 1 Pty Limited [2009] FCA 1523). Meetings of creditors were held on 22 December 2009, and Lift Partners and Lift Nominees now seek approval of the proposed schemes pursuant to s 411 of the Act.
3 The Famularo Parties claim to be creditors of Lift Partners and Lift Nominees. However, the chairman of the meetings convened pursuant to the orders made on 27 November 2009 rejected proofs of debt by the Famularo Parties for the purposes of voting at the meetings. The Famularo Parties are plaintiffs in one or other of the second or third proceedings, NSD57 of 2010 and NSD58 of 2010. In the second and third proceedings, the Famularo Parties appeal from the decision of the chairman, refusing to permit them to vote at the meetings. The joint liquidators of Lift Partners and Lift Nominees, Messrs Anthony McGrath and Joseph Hayes (the Liqidators), are defendants in the second and third proceedings. Mr McGrath was the chairman of the meetings convened by the orders made on 27 November 2009. The Famularo Parties also seek to be heard in opposition to the application for approval of the schemes of arrangement.
BACKGROUND
4 In March 2006, the Famularo Parties entered into loan facility agreements with Lift Partners. Between 31 March 2006 and 7 April 2008, Lift Partners lent funds to the Famularo Parties under the terms of the respective loan facility agreements. Under clause 4.7 of the loan facility agreements, Lift Partners could give three business days’ notice requiring that the full amount of all moneys outstanding was immediately due and payable. Under the loan facility agreements, the Famularo Parties agreed to mortgage, to Lift Partners, all securities acquired, wholly or partly, with the moneys advanced under the loan facility agreements. The mortgages were to secure all moneys owing under the loan facility agreements. Under the loan facility agreements, mortgaged securities were to be transferred to Lift Nominees, to be held by Lift Nominees as the bare nominee of the respective Famularo Parties, subject to the rights of Lift Partners as mortgagee. Under clause 7.1 of the loan facility agreements, the shares could be sold with the consent of Lift Partners, the proceeds being applied in reduction of the loans.
5 The Famularo Parties used the moneys lent to acquire shares in companies listed on the Australian Stock Exchange (ASX). In addition, they bought put options in respect of shares in listed companies, and sold call options in respect of shares in listed companies. The Famularo Parties mortgaged to Lift Partners the shares acquired with the funds advanced by Lift Partners, and those shares were transferred to Lift Nominees. The put options and call options were made in the name of Lift Nominees.
6 The shares, put options and call options were transferred by Lift Nominees to various Merrill Lynch Companies on the basis that the shares, put options and call options would be available to the Merrill Lynch Companies as security for advances made by the Merrill Lynch Companies to Lift Partners. The Famularo Parties claim that the transfer to the Merrill Lynch Companies was effected without their knowledge or consent, and in breach of trust, and in breach of contract.
7 On 7 April 2008, Lift Partners gave notice to the Famularo Parties requiring repayment of the amounts outstanding under the loan facility agreements. At that time, the Famularo Parties were not in default under the loan facility agreements. Under the notices of 7 April 2008, the money owing, amounting to approximately $331 million, was repayable on 10 April 2008. The Famularo Parties did not repay the amounts outstanding on that date. On that date, Messrs Hayes and McGrath were appointed as administrators of Lift Partners. That was an event of default under the arrangements between Lift Partners and the Merrill Lynch Companies.
8 Security in the sum of some $81 million had been provided by Lift Partners to Australian Clearing House (the Clearing House) for the exposed liability of the Famularo Parties under the call options. That sum of $81 million had been lent by the Merrill Lynch Companies to Lift Partners. Transfer of shares and options by Lift Partners to the Merrill Lynch Companies, albeit in breach of trust, was partial security for the loan of $81 million provided by the Merrill Lynch Companies as security to the Clearing House. Between 11 April 2008 and 17 April 2008, the shares in listed companies owned by the Famularo Parties were sold by the Merrill Lynch Companies for total proceeds of approximately $345 million. The put options were sold, giving rise to a surplus of some $16.6 million. The Merrill Lynch Companies also closed out the call options. The result of those transactions was to incur losses on the call options of approximately $42 million.
9 The Famularo Parties contend that those steps were effected as a result of breach of trust and in breach of contract. They claim that, if those steps had not been taken in the way that they were, they would be creditors of Lift Partners and Lift Nominees for the amount of the difference between the proceeds of sale of the listed shares, of approximately $345 million, and the amounts owing under the facility agreements, of approximately $331 million, together with the proceeds of the closing out of the put options of $16.6 million. In addition, they say, losses of $42 million should not have been incurred in respect of the call options. They say that, if they had been permitted to trade the call options, they would have derived profits of $53 million.
10 Mr McGrath, as the chairman of the meetings of creditors, decided that the proofs of debt that were lodged by the Famularo Parties in support of their claims to be entitled to vote at the meetings should be assessed at nil. The second and third proceedings relate to those decisions made by the chairman. The Famularo Parties also oppose the approval of the schemes on the basis that, had they been permitted to vote, the resolutions approving the schemes would have been defeated.
THE FAMULARO PARTIES’ CLAIMS AGAINST LIFT PARTNERS AND LIFT NOMINEES
11 It is necessary to say something in more detail about the Famularo Parties’ claims to be creditors of Lift Partners and Lift Nominees.
12 First, the Famularo Parties contend that the notice of demand of 7 April 2008 was ineffective. The reasons given are as follows:
· The promise by Lift Partners to hold securities subject to sale, under clause 7.1 of the loan facility agreement, was in the nature of a trust obligation.
· The promise by the Famularo Parties in clause 4.7 to pay within three days of demand, and the promise in clause 7.1 to permit the Famularo Parties to sell, with the consent of Lift Partners, were concurrent obligations, because it was obvious that the Famularo Parties would need the securities to satisfy their debt.
· At the time of transfer of securities to the Merrill Lynch Companies, the Famularo Parties were not in default.
· That transfer was in breach of contract and breach of trust, and was unconscionable.
· The three day notice was in breach of contract and breach of trust, and itself was unconscionable (see Legione v Hately (1983) 152 CLR 406).
· The insistence by Lift Partners on any right to demand payment within three days constituted an insistence on rights that was harsh and oppressive, and in the circumstances, unconscionable.
· The demand of 7 April 2008 was made in circumstances where the subsisting breach by Lift Partners of its concurrent obligations precluded it from making such a demand.
· Lift Partners knew, at all material times, that the position of the Famularo Parties could not be unwound in three days:
- legally, because a transfer could not be cleared through the Clearing House in that timeframe,
- economically, because to unwind the volume of shares required would flood and depress the market,
- practically, because settlement of sales on ASX takes place three days after the sale is effected.
· By expressly consenting to the purchase of shares by the Famularo Parties, Lift Partners created a common assumption or expectation, which the Famularo Parties adopted, that Lift Partners would not insist upon a strict contractual right that would result in the sacrifice of shares purchased.
13 Mr Famularo gave unchallenged evidence that, while he was aware of the provision entitling Lift Partners to give three days’ notice of demand, he assumed that right would not be exercised, because it would not be in the interests of either Lift Partners, or the Famularo Parties, for such a right to be exercised. However, there was no evidence that Lift Partners made such an assumption or understood that Mr Famularo made such an assumption.
14 Accordingly, it was alleged, Lift Partners is estopped from insisting upon the Famularo Parties repaying the facility in whole, in a time frame short of a reasonable period necessary to dispose of the shares in a prudent manner, which was beyond the three days’ notice. In the circumstances, the Famularo Parties say, Lift Partners is estopped from asserting that, at any relevant time, the Famularo Parties were in default, and the giving of notice in those circumstances was unconscionable on the part of Lift Partners.
15 The Famularo Parties also say that, even if the demands of 7 April 2008 were valid, they are creditors on the basis of the following claims.
· Lift Nominees held relevant securities for the Famularo Parties as a fiduciary agent.
· Lift Partners and Lift Nominees caused the relevant securities to be transferred to the Merrill Lynch Companies, such that the Merrill Lynch Companies claimed that they were subject to security entitlements of the Merrill Lynch companies.
· That transfer was a breach of trust and a breach of contract.
· The securities were trust property in the hands of the Merrill Lynch companies, which dealt with them for their own benefit, causing loss to the Famularo Parties.
· The Merrill Lynch Companies acquired the trust property with notice of the rights of the Famularo Parties.
· Assuming that the demand of 7 April 2008 was a valid demand, and Lift Partners exercised its rights as mortgagee, it was entitled only to sell securities to satisfy the outstanding debt, which was more than covered by the listed shares.
· Had Lift Partners not transferred the securities to the Merrill Lynch Companies, it could have lawfully resorted to the securities only for the purpose of applying the proceeds of sale against the outstanding debt, leaving a credit of approximately $14 million, and leaving the call options with the Famularo Parties.
· Accordingly, Lift Partners is not entitled to charge the Famularo Parties with the $42 million loss arising from the closing-out of the call options, because that loss was occasioned by the breach of trust.
· Had Lift Partners merely exercised its rights as mortgagee, the Famularo Parties would have been left with a surplus of $11 million on the sale of the shares, plus the proceeds of the realisation of the put options of approximately $16.6 million, and would have had the opportunity of trading in respect of the call option positions, which might have generated a surplus of some $53 million.
16 The Famularo Parties claim to be creditors in respect to the surplus of the proceeds of sale over the amount of the loans. They claim that Lift Partners was not entitled to debit the loss on the closing out of the call options and, further, that the closing out of the call options deprived them of the opportunity of trading the call options in such a way as to generate a profit, rather than the loss that was occasioned by the closing out of the call options in the peremptory fashion adopted by the Merrill Lunch Companies.
17 By summons in the Commercial List, filed on 2 July 2009, Lift Partners claimed orders that the Famularo Parties pay the respective sums said to be owing following the actions of the Merrill Lynch Companies. In their Response and Cross- Claim filed on 22 September 2009, the Famularo Parties asserted that Lift Partners was not entitled to give notice for repayment and that, if it was entitled to do so, the notice did not take effect because of the appointment of the Administrators. Alternatively, they said there was a breach of an implied term of the trading relationship between Lift Partners and the Famularo Parties that Lift Partners would ensure that it remained solvent and able to perform its obligations to deliver securities to the Famularo Parties as and when obliged to do so.
18 In addition, in their Response and Cross-Claim, the Famularo Parties purported to rely on matters referred to in reasons for judgment given by the Supreme Court of New South Wales on 3 February 2009 in a proceeding between Lift Partners and the Merrill Lynch Companies. In that proceeding, the Supreme Court found that, to the extent that the combined effect of certain provisions of the loan facility agreements would be to allow Lift Partners to pass shares to the Merrill Lynch Companies free from the interest of the mortgagors, those provisions had an unconscionable operation in favour of Lift Partners, being an operation procured by unconscionable conduct of Lift Partners. The provisions imposed an impermissible fetter upon the right of the mortgagors to redeem the mortgaged shares. The Court held that the provisions were, therefore, and to that extent, inoperative and void. The effect of those findings would be that certain provisions of the loan facility agreements between Lift Partners and the Famularo Parties were ineffective. That is the basis for the conclusion that any transfer of shares belonging to the Famularo Parties by Lift Nominees and Lift Partners to the Merrill Lynch Companies was a breach of trust and in breach of contract.
19 The Famularo Parties’ Response and Cross-Claim in the Commercial List proceeding also asserted that the giving of the notice of 7 April 2008 was unfair, unreasonable and unconscionable. That assertion was subsequently particularised in a letter of 28 October 2009. That letter asserted that the notice was given and expired after Lift Partners had become insolvent and unable to deliver shares and options owned by the Famularo Parties, which had been held by Lift Partners and Lift Nominees as mortgagee. The letter asserted that the notice did not permit sufficient time for the shares and options to be realised. Next, the letter asserted that Lift Partners gave Famularo Parties oral advice not to worry about the notice, saying that it was just a formality. That assertion was not supported by any evidence in this proceeding. Further, the letter asserted that the notice of 7 April 2008 was unreasonable, given the amounts that were the subject of the notice, and given that there were substantial option positions that would not mature within the period of the notice. Finally, the letter asserted that the notice was given for the purpose of enabling Lift Partners to dispose of the shares and options belonging to the Famularo Parties in order to satisfy its own solvency problems. There was no evidentiary support of that assertion.
20 In response to a request for particulars of loss and damage alleged to have been suffered by the Famularo Parties, including particulars that identify how the loss and damage was caused by breaches of trust, the letter asserted that the losses were caused by the Administrators’ failure to protect the assets of the Famularo Parties and that, had they protected the assets, the losses would not have occurred. On 4 December 2009, the solicitors for Lift Partners wrote to the solicitors then acting for the Famularo Parties with reference to their Response and Cross-Claim, to which I have just referred. The letter referred to the first Court hearing in relation to the proposed schemes of arrangement on 27 November 2009, when senior counsel for the Famularo Parties informed the Court that they claimed to be creditors of Lift Partners in an amount in excess of $69 million. The letter of 4 December 2009 requested particulars of that claim, including details of how, as a matter of causation, it could be said that Lift Partners caused the alleged damage to be incurred and how the figure was calculated.
21 The letter also enquired whether the Famularo Parties intended to seek to be admitted as creditors for voting purposes at the scheme meetings convened for 22 December 2009. If so, they were requested to complete the enclosed Voting Proof of Debt Forms in detail. The Famularo Parties were also invited to provide full particulars of any claims that they contended they had against Lift Partners and Lift Nominees, including:
· particulars of the causes of action;
· terms of any relevant trust instruments or agreements;
· the precise nature of any breach of duty;
· how each breach was alleged to have caused the damage claimed; and
· the amounts of damage that each of the Famularo Parties contended it had suffered.
22 The then solicitors for the Famularo Parties responded on 10 December 2009, enclosing a series of spreadsheets, one for each of the Famularo Parties. The spreadsheets outline various transactions up to April 2010. The assertion that appears to have been made is that strategies ought to have been adopted by the Administrators, or the Administrators ought to have permitted the Famularo Parties to have put such strategies in place, that would have resulted in a profit that would have exceeded the loss arising from the peremptory closing out of the call option positions.
23 On 20 December 2009, the Famularo Parties submitted Voting Proof of Debt Forms, making claims totalling in excess of $100 million. The amounts shown in the Proof of Debt Forms were different from the respective amounts shown in the spreadsheets enclosed with the letter of 10 December 2009. There was no attempt to reconcile the two sets of figures; nor was there any indication of a reconciliation between the figures shown in those documents with the assertion, made at the first Court hearing, that the claims of the Famularo Parties were in the order of $69 million.
24 On 21 December 2009, the solicitors for the Liquidators and Lift Partners and Lift Nominees wrote to the present solicitors for the Famularo Parties, indicating that the value of each of their claims would, pursuant to reg 5.6.23(2), be estimated by the chairman of the scheme meetings as being nil. The letter outlined in some detail the reasoning that led to that conclusion. There was no response to that letter.
THE DECISION OF THE CHAIRMAN
25 At the meetings held on 22 December 2009, the claims of the Famularo Parties were assessed by Mr McGrath as having a value of zero. Mr McGrath gave evidence by affidavit and in cross-examination concerning his decision that the proofs of debt submitted by the Famularo Parties should be estimated at zero and rejected.
26 On 10 December 2009 Messrs Allens Arthur Robinsons provided written advice to the Liquidators concerning the Response and Cross-claim in the proceeding in the Commercial List of the Supreme Court. The Voting Proof of Debt Forms submitted by the Famularo Parties on 20 December 2009 were reviewed by Mr McGrath on 21 December 2009. Mr McGrath also reviewed and approved the letter sent by Allens Arthur Robinson on 21 December to the solicitors for the Famularo Parties indicating the reasons why Mr McGrath proposed to estimate the value of the claims of the Famularo Parties at zero.
27 Mr McGrath understood at the time of the meeting that the Famularo Parties were in default after 10 April 2008 by reason of their failure to comply with the demand of 7 April 2008 and that Lift Partners was therefore entitled to cause or allow their shares and options to be sold and closed out and to charge the costs of doing so the Famularo Parties. Accordingly, at the time of the meetings held on 22 December 2008, Mr McGrath, having regard to his review of the proofs of debt, the advice of 10 December 2009 and the letter of 21 December 2009, coupled with the absence of any further information from the Famularo Parties in relation to their claims, concluded that the claims should be estimated at zero and be rejected. It is, as I have said, that decision from which the appeals in the second and third proceedings have been brought.
CLAIMS AGAINST MERRILL LYNCH
28 The Famularo Parties have, in the course of argument, asserted a possible claim against the Merrill Lynch Companies. That has not been particularised in any detail. It is irrelevant to the appeals, which are concerned only with the question of whether or not the Famularo Parties are creditors of Lift Partners or Lift Nominees.
29 However, one of the effects of the schemes of arrangement may be to bar any claim that the Famularo Parties presently have against the Merrill Lynch Companies arising out of their dealings with Lift Partners. While that is irrelevant to the appeals, it has a bearing on the question of approval of the schemes. In considering whether or not to approve the schemes, it is necessary for the Court to have regard to the possible impact of their approval on any relevant party. However, I consider that the claims of the Famularo Parties against the Merrill Lynch companies are such of an ephemeral nature that it is difficult, on the material before the Court, to characterise them as being other than pure speculation. As against that speculation, there is the interest of the undoubted creditors of Lift Capital and Lift Nominees in sharing in the fund to be advanced by the Merrill Lynch Companies as consideration for the bar of the claims that creditors of Lift Capital and Lift Nominees may have against the Merrill Lynch Companies.
THE PROPOSED TRADING STRATEGY
30 A lynch pin in the claims of the Famularo Parties is the proposed trading strategy that Mr Famularo says could have been put in place as at 10 April 2008. He says that the sum of $81 million, which was provided as security for contingent obligations under the call options, would have been freed by the putting in place of a strategy that was first set out in detail in affidavits sworn by Mr Famularo on 2 February 2010 and 4 February 2010. While hints of some strategy had previously been given, there was no evidence that any particular strategy was ever suggested to the Administrators in April 2008 or at any time before February 2010.
31 The strategy that Mr Famularo says could have been and should have been put in place involves several steps, all of which would have needed to be put in place at the same time, following the demand of 7 April 2008. The steps were briefly as follows:
· the shares in listed companies would be sold for approximately $345 million;
· the proceeds of sale would be applied in repaying the debt owing to Lift Partners leaving a credit balance of approximately $14 million;
· the put option positions would be sold generating a profit of approximately $16.6 million;
· the average strike price of the sold call options was $40; all sold call options having expiration dates before March 2010 would be closed out and rolled forward into an equivalent number of sold call options, with the same strike price, but having expiration dates of March 2010, generating a surplus of $19 million;
· 10,200 call options, with expiration dates of March 2009, and a strike price of $50, would be purchased, at a cost of $12 million.
32 Mr Famularo accepted that the risk in relation to the purchased call options, expiring in March 2009, as against the sold call options expiring in March 2010, would need to be managed. Mr Famularo’s evidence was that, at the appropriate time, he would have sold BHP shares that enabled him to cover the liability in relation to the options.
33 There were 6,808 sold call options for BHP shares. Each option contract involved 1,000 shares. The expiry dates were June 2008, August 2008, September 2008 and March 2010. The strike price was an average of about $40. Mr Famularo says that he would have taken steps to convert all call options with an expiry date earlier than March 2010 into call options with an expiry date of March 2010 with the same strike price. That would have been achieved by buying call options with the earlier expiry dates and selling new call options expiring in March 2010. He says, having examined historical records, that rolling over the call options in that way would have generated approximately $19 million.
34 Mr Famularo then says that, shortly after 10 April 2008, and he gave no further detail as to how long after, he would have bought 10,200 call options at a strike price of $50 expiring in March 2009, as against the 6,808 sold call options expiring in March 2010 which had a strike price of $40. By further reference to historical records, Mr Famularo estimates that the cost of buying the 10,200 call options expiring in March 2009 would have been approximately $12 million.
35 Mr Famularo explained that the disparity in numbers between the 6,808 sold call options and the 10,200 bought call options was to provide further security in the event that BHP shares rose above $50. If the price of BHP shares increased significantly above $40, the open sold call options expiring in March 2010 would attract margin calls from the Clearing House, which the Famularo Parties would be liable to meet. Mr Famularo said that, in May 2008, when the price of BHP shares rose to $45 he would have purchased low exercise price options (LEPOs), expiring in December 2008, to protect against the liability for margin calls. Mr Famularo said he would have purchased 500 LEPOs, each contract being for 1000 BHP shares, at a cost of approximately $425,000. He says that, when the value of BHP shares fell below $45 in late June 2008, he would have closed out by selling the LEPOs. He estimates that the proceeds of closing out the LEPOs would have generated approximately $325,000 resulting in a loss of approximately $100,000 on the LEPOs. No indication was given as to how that loss would be funded. Indeed, in a letter to the Liquidators’ solicitors, the solicitors then acting for the Famularo Parties indicated that the Famularo Parties have no assets.
36 Mr Famularo then went on to say, in his affidavit of 4 February 2010, that when, in late May or early June 2008, BHP shares reached a price of $48, he would have purchased 6,808 put options for a very small cost, with a strike price of $35 and an expiry date of March 2009. He would have taken that action because of his view that BHP shares had peaked at $48. However, he produced no record of having formed the opinion at that time, that the price of BHP shares had peaked.
37 Mr Famularo said that, once the BHP price fell below $45, the put options with a $35 strike rate would have become more valuable. He said that he would have held the put options while the BHP share price fell from $48 in May or June 2008 to $35 in September 2008. At that point, he would have sold the put options. He concludes that he would have made a profit on the sale of those put options of approximately $17 million.
38 A difficulty with the position of the Famularo Parties is that the strategy of purchasing call options to cover their liability under sold call options was not one that had been employed previously. Further, there was no suggestion that Mr Famularo, when faced with the demand of 7 April 2008, made any approach to the Administrators or Lift Partners or the Merrill Lynch Companies with a suggestion that there was a strategy that could be put in place that would have enabled the Famularo Parties to have complied with the demand, even if several days grace was needed. There was no suggestion that Mr Famularo ever asked for more time to comply with the demand. Even when faced with the proceeding in the Commercial List, the Famularo Parties failed to articulate the strategy outlined above as a basis for defending the claim by Lift Partners or as a basis for the cross-claim brought against Lift Partners.
39 In addition, in his affidavit of 2 February 2010, Mr Famularo gave evidence as to the trading strategy that he has employed for the Famularo Parties in the last 10 years. The strategy involved the following steps:
· The Famularo Parties traded only in blue chip companies, being those in the top 10 of listed securities on the ASX, which had a high probability of dividend income. The strategy involved trading principally in BHP and Telstra shares.
· Shares were bought with loan funds representing 100% of the purchase price.
· Where shares were purchased, put options would be acquired under which the Famularo Parties were entitled to require the other party to the option, at a fixed point in time, to purchase the shares at the price paid for the physical shares. The acquisition of the put option was a guarantee that, if the market value of the shares fell below the purchase price, the Famularo Parties would be able to meet the loan obligation by exercising the put option.
· Having purchased shares and put options, the Famularo Parties would then sell a call option entitling the other party to that option to purchase the shares for the price paid for the physical shares. The period of the sold call options would be a relatively long one, in the vicinity of three years. Because the period of the sold call options was a relatively long one, they attracted a premium. That is to say the other party to the call options would pay a price in excess of the price paid for the physical shares.
40 If the shares purchased in accordance with the strategy fell below the purchase price, the liability of the Famularo Parties to the lender was covered by the put options. If the share price increased above the purchase price, it was more likely that the call options would be exercised and the physical shares were available to meet those options.
41 The effect of such a strategy was that income was derived from dividends declared by the companies whose shares were purchased. Additional income was generated from the premiums received on the sale of the call options. The cost of the put options was funded by the Famularo Parties, but not with moneys lent by the financier. The combined effect of dividend income and premium payments was to generate sufficient income to meet the interest on the borrowed moneys, thereby generating a surplus or profit.
42 The strategy just outlined was adopted in relation to transactions with Lift Partners. The shares involved, as I have said, were principally BHP and Telstra shares, the purchase price for which was provided as to 100% by Lift Partners. Before any purchase, the Famularo Parties were required to outline the proposed purchase to Lift Partners and to obtain its consent, which was communicated on the basis that any purchase of shares would be covered by put options. The step of selling call options was not a requirement of Lift Partners, but was an additional strategy put in place by Mr Famularo himself. All shares purchased, together with put options, were held by Lift Nominees and were purchased by a broker approved by Lift Nominees, being Andrew West & Co or Morrison Securities. When shares and put options were purchased, the Famularo Parties received a contract note issued by one of those brokers.
43 It appears that, under trading rules of ASX the proceeds of the sale of shares are only available on the third day after the day of sale. Mr Famularo said that, had the shares owned by the Famularo Parties been available to sell when he received the notice of 7 April 2008, and he had taken immediate steps to sell them, the proceeds of sale could not have been available within the three days specified in the notice because of the trading rules just described. In any event, Mr Famularo said, the sale of the shares within three days would not have made any business sense, because such a sale would only depress the price. In that regard, Mr Famularo points to the fact that, when the Merrill Lynch Companies undertook the sale of shares, which yielded some $335 million, the sales took place over some 10 trading days. He says that selling more than $300 million worth of BHP and Telstra shares within three days would be likely to depress the sale price, thereby working to the disadvantage of both the mortgagor and the mortgagee. That is an aspect of the allegation that the giving of three days’ notice, notwithstanding that it was in the contractual arrangement between the Famularo Parties and Lift Partners, was unreasonable and unconscionable, such that the notice itself was invalid or unenforceable.
44 In his affidavit of 4 February 2010, Mr Famularo said that Lift Partners, as mortgagee, could have sold the shares and put options to discharge the indebtedness to Lift Partners. It could have avoided exposing itself to a future liability under the call options by simultaneously transferring the sold call options to the Famularo Parties. He says that, by that means, the shares could have been released for sale, notwithstanding that they were held as security by the Clearing House, in circumstances where the Famularo Parties would then have had to manage the risk of exposure in the way described. Mr Famularo accepted that that would involve the provision of security. The provision of security would have been effected, he says, by the strategy that I have described.
45 While the strategy may have been feasible, it was never proposed to the Administrators of Lift Partners. It is hard to avoid the conclusion that much of the evidence summarised above was given with the benefit of hindsight.
46 In any event, Mr Famularo asserts that the Famularo Parties were deprived of a profit of approximately $51 million, determined as follows:
· net proceeds of the sale of shares and put options after
repayment of Lift Partners debt: $27 million;
· plus surplus on rolling over call options to March 2010: $19 million;
· less cost of purchasing call options expiring in March 2009: $12 million;
· less the loss on the LEPOs: $100,000;
· plus profit on the sale of further BHP options: $17 million.
That is the amount for which Mr Famularo says the Famularo Parties should be treated as creditors.
THE DUTIES OF A MORTGAGEE
47 The power of sale given to a mortgagee is for the mortgagee’s own benefit to enable the mortgagee better to realise the debt. A mortgagee is not a trustee of the power for the mortgagor. Further, the mortgagee may consult the mortgagee’s own convenience as regards the timing of the exercise of any power, subject to the duty to act in good faith in the exercise of the power. In particular, a mortgagee is not bound to postpone the exercise of a power of sale in the hope of obtaining a better price at some later stage. On the other hand, the mortgagee must allow sufficient time for proper steps to be taken to ensure that the best price reasonably obtainable might be obtained. There might even be circumstances where delay would be required, for example, if there were very clear signs that the market was improving rapidly and substantially. That is not this case. Nevertheless, the mortgagee must pay regard to the interests of the mortgagor and should not act in a manner that sacrifices the interests of the mortgagor. Thus the mortgagee is under a duty to take reasonable care to obtain whatever was the true market value of the mortgaged property at the time when the mortgagee chooses to exercise a power. Exercise of a power in good faith entails taking reasonable steps or precautions to obtain a proper price.
48 The Famularo Parties complained that the closing out of the call options involved a breach of the duty owed by Lift Partners as a mortgagee in respect of the options. The complaint of the Famularo Parties must be considered against those principles, which were not in dispute. The question is whether it can be said that the decision to close out the call options, which was given effect to in the days following 10 April 2008, was conduct that disregarded the interests of the Famularo Parties, as mortgagors, in a way that sacrificed their interests. Putting it another way, the question is whether that involved a failure on the part of Lift Partners, as mortgagee, to take reasonable steps and precautions to obtain a reasonable price in realising the call options. The question is not whether some other course could have been taken, such as the course outlined by Mr Famularo in his affidavits of February 2010, but whether the steps that were in fact taken in April 2008 were unreasonable. The Famularo Parties say that it was unreasonable to take the steps that were taken.
49 Assuming that the demand of 7 April 2008 was valid and effective, there were three difficulties with the proposition that it was unreasonable to exercise the powers as mortgagee in the way that they were exercised.
· It was not possible to put in place immediately the alternative strategy postulated by Mr Famularo.
· At no time did Mr Famularo suggest to the Administrators that such a strategy was appropriate or even possible.
· The strategy postulated by Mr Famularo runs counter to the strategy that he had applied over some 10 years of options trading; rather, the position of the Famularo Parties as at 7 April 2008 was consistent with strategy that Mr Famularo had adopted over that period of time.
DISPOSITION OF THE APPEALS
50 There was no particularisation or specification of the nature of the additional evidence that the Famularo Parties wished to adduce, other than by counsel in the course of argument. The proposed evidence was as to the circumstances surrounding the sale and closing out of the call options by the Merrill Lynch Companies and the loss and damage said to have been incurred as a consequence. The evidence before the Court already included evidence on affidavit by Mr Famularo as to the strategy that he says would have been appropriate to put in place as at 7 April 2008 or 10 April 2008, in order to comply with the notice of demand. Senior counsel for the Lift companies and the Liquidators and senior counsel for the Merrill Lynch Companies, who appeared to support the proposed schemes, indicated to the Court that they did not wish to cross-examine Mr Famularo as to the matters about which he deposed in his affidavits. It was not suggested that the steps deposed to by Mr Famularo were inconsistent with the ASX trading rules relevant to options, although the trading rules were not in evidence.
51 Having regard to the evidence that was already adduced on behalf of the Famularo Parties, I considered that there was no utility in an adjournment of the hearing of the appeals. Senior Counsel for the Famularo Parties indicated that they did not wish to stand in the way of the scheme, although they had foreshadowed notice of intention to oppose the application for approval of the schemes. Senior Counsel did not indicate that he wished to adduce further evidence in relation to the proceeding to approve the schemes.
52 The basis for the adjournment was to adduce further evidence on the assumption that the task of the Court in considering the two appeals involved a hearing de novo of the question of whether the Famularo Parties are creditors of Lift Partners and Lift Nominees. That would in effect entail the determination of issues effectively thrown up in the proceedings already on foot in the Supreme Court of New South Wales. That would be inappropriate both in the appeals and in the scheme proceeding.
53 The Lift companies and the Liquidators contend that the estimate of value to be made by a chairman in assessing a proof of debt must be of a somewhat summary nature. The chairman does not undertake a detailed enquiry or engage in extensive debate and deliberation in relation to that estimate. The chairman must do the best that can be done by reference to the factual material furnished by the claimant viewed in the total context in which the decision-maker is operating. The decision is to be made on the basis of the material available to the decision-maker at the time when the decision is made. Accordingly, they say, the Court’s task is to determine whether the Famularo Parties can establish error in the way in which Mr McGrath approached that summary exercise. The Famularo Parties, on the other hand, contend that the proper basis for the appeal is to determine de novo, on whatever material is before the Court, whether the claimant is in fact, and in law, a creditor.
54 The purpose for the adjournment sought on behalf of the Famularo Parties was to adduce evidence as to the circumstances surrounding the sale and closing out of the call options by the Merrill Lynch companies and the loss and damage said to be incurred as a consequence. They accept that the additional material that they wished to adduce was not before Mr McGrath when he decided to assess the value of the claims of the Famularo Parties at nil. They accept that they have adduced all the evidence that they would wish to adduce as to the material that was available to Mr McGrath when the decision was made.
55 Clause 2.15 of the Federal Court (Corporations) Rules provides that, subject to the Act, the Rules and any direction of the Court to the contrary, regs 5.6.11 to 5.6.36A of the Corporations Regulations 2001 (Cth) apply to meetings ordered by the Court. Under reg 5.6.19(1), a resolution put to the vote of a meeting must be decided on the voices, unless a poll is demanded. Regulation 5.6.20(1) relevantly provides that, if a poll is demanded, the manner in which it is to be taken and the time at which it is to be taken must be determined by the chairperson. Regulation 5.6.21(2) relevantly provides that a resolution is carried if:
· a majority of the creditors vote in favour of the resolution; and
· the value of the debts owed by the corporation to those voting in favour of the resolution is more than half the total debts owed by all creditors voting.
Regulation 5.6.23 relevantly provides that a person is not entitled to vote as a creditor at a meeting unless:
· the person’s debt or claim has been admitted wholly or in part; or
· where the person has lodged, with the chairperson of the meeting or with the relevant person named in the notice convening the meeting, particulars of the debt or claim or formal proof of the debt or claims.
Further, a creditor must not vote in respect of an unliquidated debt unless a just estimate of its value has been made. Such an estimate must be made by the chairperson.
56 Regulation 5.6.26 provides that the chairperson of a meeting has power to admit or reject a proof of debt or claim for the purposes of voting. Under reg 5.6.26, a decision by the chairperson to admit or reject a proof of debt or claim for the purposes of voting, may be appealed against to the Federal Court within 10 days after the decision. The appeals constituted by proceedings NSD 57 of 2010 and NSD 58 of 2010 are effectively appeals under reg 5.6.26(3).
57 The Famularo Parties seek to draw a distinction between an appeal from the rejection of a proof of debt, on the one hand, and an appeal from a discretionary management decision, on the other. They say that an appeal from the rejection of a proof of debt involves a hearing de novo, whereas an appeal from a discretionary management decision may in effect be no more than judicial review of the decision under review, on the basis of the material before or reasonably available to the decision maker.
58 Where an appeal is brought against a discretionary evaluative decision of an administrator or liquidator, the scope for intervention by the Court is necessarily confined. The chairman of the meetings convened by the orders of 27 November 2009 was appointed by the Court. To the extent that decisions are made from time to time by a chairman so appointed, those decisions are, in effect, under the authority of the Court and are subject to review and control by the Court, should a proper case be made out requiring intervention. If there is some defect in the manner in which the chairman conducts his duties, such as want of good faith or some erroneous approach in law or in principle, that may be a basis for intervention by the Court on appeal (see Duffy v Supercentre Development Corp Limited [1967] 1 NSWR 382 at 383).
59 In considering an appeal under reg 5.6.26, the Court must have regard to the material available to the chairperson. However, there may be cases where it would be appropriate for the importance and defects of the chairperson’s decision to be demonstrated by material not available to the chairperson. There are significant differences between proofs of debt and claims for voting purposes in relation to Part 5.3A meetings and proofs of debt and claims for the purpose of entitlement upon a distribution in a winding up. Any estimate of value undertaken pursuant to r 5.6.23 as well as any decision under r 5.6.26 to admit or reject, will, of necessity, be of a somewhat summary nature. Such a decision can only be undertaken by the chairperson (see Selim v McGrath (2003) 47 ACSR 537 at [39] and [103]).
60 There may be a difference between a meeting convened under Part 5.3A, on the one hand, and a meeting convened by the Court under Part 5.1 on the other. In particular, in the present case, the contention of the Famularo Parties is that, had they been permitted to vote in respect of the claims that they have made, the resolutions would not have been carried. The effect of the resolutions is to bar the claims by the operation of the schemes. In that sense it may be arguable that the particular circumstances of the present case are closer to the rejection of a proof of debt for distribution purposes. That is a reason why additional evidence may be permitted to show the importance of the decision to reject the voting proof and any defects in the decision. The Famularo Parties have adduced evidence as to those matters.
61 It is a different question, however, to embark on a hearing de novo as to whether or not the Famularo Parties have a claim against Lift Partners, in effect trying the issues raised by the Response and Cross-Claim in the Commercial List proceedings. I am not persuaded, either on the material before Mr McGrath as chairperson, or on the material before the Court, that Mr McGrath erred in concluding that the Famularo Parties are not creditors of Lift Capital and Lift Nominees.
62 I am not persuaded, on the balance of probabilities, on the material now before the Court, that the notice of demand of 7 April 2008 was invalid or unenforceable. I do not consider that the evidence justifies a conclusion that reliance by Lift Partners on the express provisions of the loan facility agreements was unconscionable. Nor am I persuaded, on the basis of the material before the Court, that the closing out of the sold call options by the Merrill Lynch Companies constituted a breach of duty by Lift Partners exercising powers as a mortgagee. Even if it was feasible for the Famularo Parties to have adopted the strategy explained by Mr Famularo, it was not a breach of duty by Lift Partners not to have put that strategy in place on or following 10 April 2008.
63 There was no error on the part of Mr McGrath in estimating the value of the claims made by the Famularo Parties at nil. It follows that the appeals should be dismissed.
APPROVAL OF THE SCHEMES
64 Two creditors of Lift Partners and Lift Nominees made submissions in relation to the schemes. Beibei Proprietary Limited appeared by its solicitor but did not seek to be made a party. Beibei Proprietary Limited supported the application for approval of the schemes, substantially for the reasons advanced by the Liquidators. The other submission was made by Mr Andrew Carr. Mr Carr made a written submission but did not appear at the hearing. Mr Carr said that he was not satisfied with the return that he will receive as a creditor under the schemes. He asserted that the proposed return does not reflect the strength of the case that former client creditors of Lift Partners have against Lift Partners. One particular concern expressed by Mr Carr is that the proposed return to client creditors would be reduced significantly if the Famularo Parties succeed. However, of course, the effect of the schemes will be to bar any claim by the Famularo Parties that they would be entitled to make against Lift Partners and Lift Nominees
65 The Famularo Parties contend that they were denied the opportunity to vote in circumstances where their propounded claims would be leased by the scheme. They say that, had they been afforded the opportunity to vote, the resolutions would not have been passed and, accordingly, the will of the meeting miscarried. For the reasons just indicated, I am not persuaded that the Famularo Parties are creditors of Lift Partners or Lift Nominees such that they were entitled to vote at the meetings. Their exclusion therefore is not a basis for withholding approval to the schemes, if approval would otherwise be given.
66 As I have already said, I ordered that meetings of relevant creditors be convened to be held on 22 December 2009 for the purposes of considering resolutions in relation to the schemes. The proposed explanatory statement to be sent to creditors was approved on 27 November 2009. On 27 November 2009 the explanatory statement, covering letter and accompanying proxy forms and voting proof of debt form were made available to be downloaded from the Liquidators’ website. A link to that site was sent to all creditors with a known email address. On 30 November 2009, the explanatory statement and covering letter, together with proxy forms and voting proof of debt form were sent to all creditors of the Lift Parties and Lift Nominees. I am satisfied that the despatching of that material was carried out in accordance with the orders made on 27 November 2009.
67 In compliance with those orders, meetings were convened by way of advertisement in each of The Australian and the Sydney Morning Herald newspapers on 30 November 2009. On 22 December 2009, in accordance with the orders of 27 November 2009, there were meetings of all Lift Clients and of all other creditors of Lift Partners. There was also a meeting of creditors of Lift Nominees. The outcome of the vote on the resolutions in relation to the schemes was reported to the liquidators. The resolutions in favour of the proposed schemes were passed by an overwhelming majority of creditors at each meeting as follows:
· At the Lift Nominees scheme meeting, 92.86 % of creditors in value and 93.93 % of creditors in number present and voting, voted in favour of the Lift Nominees scheme.
· At the trade creditor meeting of Lift Partners, 100% of creditors in value and 100% of creditors in number present and voting, voted in favour of the Lift Partners scheme.
· At the Lift Client meeting of Lift Partners, 92.86% of creditors in value and 93.93 % of creditors in number present and voting, voted in favour of the Lift Capital scheme.
This application for approval of the schemes was advertised in accordance with the orders of 27 November 2009 in The Australian and the Sydney Morning Herald newspapers on 25 January 2010. Australian Securities and Investments Commission has indicated that it does not intend to provide a statement under s 411(17)(b) of the Corporations Act because it does not consider that, in the context of a creditors scheme of arrangement, matters relevant to the avoidance of Chapter 6 of the Act, which deals with takeovers, are relevant considerations.
68 There is evidence before the Court that certain conditions precedent to the Lift Capital schemes have been satisfied or waived. In all of the circumstances, I am satisfied that orders should be made approving the schemes.
| I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. |
Associate:
Dated: 25 February 2010
