FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v Letten (No 18)

[2011] FCA 1508

THE COURT ORDERS THAT:

1.    Pursuant to paragraph 10 of the Orders made on 4 June 2010, the contract of sale for the Management Lot of the Sebel Lodge Yarra Valley entered into by the Receivers (as that term is defined in the orders made on 25 February 2010) on behalf of the 29th defendant with Golden Heritage Gold Pty Ltd (the 57th defendant) on 18 February 2011 is approved.

2.    Costs reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The facts giving rise to this application are relevantly summarised in Australian Securities and Investments Commission v Letten (No 16) [2011] FCA 1308. I adopt the same defined terms in these reasons for decision.

2    These reasons for decision concern paragraph 1(c) of the Amended Interlocutory Process filed by the Receivers on 13 December 2011 which concerns the sale of the Management Lot (the property located at Heritage Avenue, Chirnside Park Victoria, being Lot 34 on Plan of Subdivision 415064K and consisting of the common areas of the Sebel Heritage Yarra Valley).

3    Under paragraph 1(c) of the Amended Interlocutory Process, if the Boerkamp Contract was terminated, the Receivers sought an order pursuant to paragraph 10 of the 4 June Orders for:

1.    approval of the contract of sale for the Management Lot entered into by the Receivers with the 57th defendant, GHG, on 18 February 2011 (the Contingency Contract) in the event that AFML did not exercise its right of first refusal under cl 22.6 of the HMA; and

2.    in the event that AFML did exercise its right of first refusal under cl 22.6 of the HMA, approval of the sale of the Management Lot to AFML on the terms set out in a form of contract provided to AFML on 7 October 2011.

4    On 20 December 2010, the Receivers filed an affidavit. The purpose of that affidavit was to provide an update “in respect of Glenbelle’s application to AFML for approval of the sale of the Management Lot to GHG pursuant to cl 22.4(b)(ii) of the HMA”. On 22 December 2010, the Receivers filed a further affidavit which addressed the fact that the members of the Hotel Scheme had resolved not to exercise the right of first refusal as well as the current attitude of GHG to this application.

5    Before turning to the merits of the application, a number of matters should be noted. First, the Boerkamp Contract was terminated: see Letten (No 16) at [48]. Secondly, AFML has not exercised its right of first refusal under cl 22.6 of the HMA. Thirdly, GHG neither consents to nor opposes this approval application. AFML’s current attitude is not presently known. However, given AFML’s contractual rights under the HMA, I do not consider it to be prejudiced by the Court determining this application. Fourthly, the Contingency Contract is subject to a number of conditions subsequent. For present purposes, the relevant condition is that contained in cl 22.3 – Court approval of the sale prior to the Sunset Date (as that term is defined in the Contingency Contract).

6    The applicable principles were relevantly summarised in Australian Securities and Investments Commission v Letten (No 11) [2011] FCA 449 at [12]-[18]. The sale process undertaken by the Receivers in relation to the Management Lot was explained in Letten (No 16) at [18]ff.

7    I am satisfied that taking into account all the relevant variables and circumstances of this particular application, the Receivers have taken reasonable care to achieve, and have achieved, an acceptable sale of the Management Lot. Accordingly, pursuant to paragraph 10 of the Orders made on 4 June 2010, the Court approves the contract of sale for the Management Lot of the Sebel Lodge Yarra Valley entered into by the Receivers on behalf of Glenbelle with GHG on 18 February 2011.

Associate:

Dated:    22 December 2011

SCHEDULE OF PARTIES

LGH HOLDINGS LIMITED (ACN 007 191 943)

Second Defendant

211 WELLINGTON ROAD PTY LTD (ACN 092 663 860)

Third Defendant

BLUEMIST HOLDINGS PTY LTD (ACN 097 306 922)

Fourth Defendant

DELLWOOD HOLDINGS PTY LTD (ACN 098 505 803)

Fifth Defendant

ENMORE ENTERPRISES PTY LTD (ACN 082 158 487)

Sixth Defendant

FIRBANK ARCH PTY LTD (ACN 059 464 381)

Seventh Defendant

GLENLINE PTY LTD (ACN 098 532 364)

Eighth Defendant

GERLING HOLDINGS PTY LTD (ACN 091 726 457)

Ninth Defendant

LGH ADMINISTRATION PTY LTD (ACN 007 165 069)

Tenth Defendant

LGH FINANCE PTY LTD (ACN 078 859 248)

Eleventh Defendant

LOW HEAD VILLAGE PTY LTD (ACN 091 731 958)

Twelfth Defendant

NICHOLSON STREET PTY LTD (ACN 069 104 089)

Thirteenth Defendant

HOLLOWAY CREST PTY LTD (ACN 091 731 967)

Fourteenth Defendant

ROSEBERY ENTERPRISES PTY LTD (ACN 091 826 229)

Fifteenth Defendant

SIMMS INVESTMENTS PTY LTD (ACN 093 504 511)

Sixteenth Defendant

SY21 RETAIL PTY LTD (ACN 107 874 564)

Seventeenth Defendant

THE GLEN CENTRE HAWTHORN PTY LTD (ACN 089 906 543)

Eighteenth Defendant

CASTELLO HOLDINGS PTY LTD (ACN 088 204 175)

Nineteenth Defendant

TWINVIEW NOMINEES PTY LTD (ACN 097 307 278)

Twentieth Defendant

YARRA VALLEY GOLF PTY LTD (ACN 066 632 479)

Twenty-First Defendant

ADINA RISE PTY LTD (ACN 083 181 122)

Twenty-Second Defendant

ALBRIGHT INVESTMENTS PTY LTD (ACN 088 204 166)

Twenty-Third Defendant

ASHFIELD RISE PTY LTD (ACN 093 504 806)

Twenty-Fourth Defendant

BRADFIELD CORPORATION PTY LTD (ACN 088 204 371)

Twenty-Fifth Defendant

COPELAND ENTERPRISES PTY LTD (ACN 093 504 824)

Twenty-Sixth Defendant

DEVLIN WAY PTY LTD (ACN 088 264 813)

Twenty-Seventh Defendant

FIRST HAZELWOOD PTY LTD (ACN 093 505 303)

Twenty-Eighth Defendant

GLENBELLE PTY LTD (ACN 097 306 646)

Twenty-Ninth Defendant

GLENVALE WAY PTY LTD (ACN 088 287 021)

Thirtieth Defendant

GREENVIEW LANE PTY LTD (ACN 093 505 312)

Thirty-First Defendant

HALLMARK CORPORATION PTY LTD (ACN 093 505 312)

Thirty-Second Defendant

MOORLEIGH HOLDINGS PTY LTD (ACN 088 287 058)

Thirty-Third Defendant

NORTON RIDGE PTY LTD (ACN 078 821 066)

Thirty-Fourth Defendant

RALEIGH GLEN PTY LTD (ACN 088 204 380)

Thirty-Fifth Defendant

REDCREST HOLDINGS PTY LTD (ACN 100 836 486)

Thirty-Sixth Defendant

SURI CORPORATION PTY LTD (ACN 093 505 321)

Thirty-Seventh Defendant

SUTTON RISE PTY LTD (ACN 088 204 399)

Thirty-Eighth Defendant

THE VIRTUAL MLMER PTY LTD (ACN 065 374 665)

Thirty-Ninth Defendant

TIVENDALE PTY LTD (ACN 093 505 349)

Fortieth Defendant

TULLOCH DOWNES PTY LTD (ACN 078 895 048)

Forty-First Defendant

MAINKING PTY LTD (ACN 100 790 485)

Forty-Second Defendant

TOPGLEN PTY LTD (ACN 096 857 564)

Forty-Third Defendant

ALLBLUE PTY LTD (ACN 100 836 388)

Forty-Fourth Defendant

ARANBAY PTY LTD (ACN 098 532 319)

Forty-Fifth Defendant

MELVILLE CORPORATION PTY LTD (ACN 091 911 045)

Forty-Sixth Defendant

TILLEY LANE PTY LTD (ACN 086 136 361)

Forty-Seventh Defendant

HPSC PTY LTD (ACN 059 930 139

Forty-Eighth Defendant

JENSDALE PTY LTD (ACN 098 367 974)

Forty-Ninth Defendant

OAKDALE RISE PTY LTD (ACN 091 598 908)

Fiftieth Defendant

MAYWOOD INVESTMENTS PTY LTD (ACN 091 599 218)

Fifty-First Defendant

ACETRAIN PTY LTD (ACN 100 820 282)

Fifty-Second Defendant

SAGE BAY PTY LTD (ACN 097 306 628)

Fifty-Third Defendant

TOBAGO HOLDINGS PTY LTD (ACN 093 504 520)

Fifty-Fourth Defendant

WILHELMUS ANTONIUS JOANNES BOERKAMP

Fifty-Fifth Defendant

AUSTPAC FUNDS MANAGEMENT LIMITED

Fifty-Sixth Defendant

GOLDEN HERITAGE GOLF PTY LTD

Fifty-Seventh Defendant