FEDERAL COURT OF AUSTRALIA

Raithatha (liquidator) v Ariel Industries PLC (in creditors voluntary liquidation), in the matter of Ariel Industries PLC (in creditors voluntary liquidation) [2012] FCA 1526

THE COURT ORDERS THAT:

1.    Pursuant to section 6 of the Cross-Border Insolvency Act 2008 (Cth) (Act) and clause 1 of Article 17 of the Model Law on Cross-Border Insolvency of the United Nations Commission on International Trade Law (Model Law), that the proceeding (First Defendant’s Foreign Proceeding) whereby the Plaintiff was appointed as the liquidator of the First Defendant under a Creditor’s Voluntary Liquidation on 17 April 2012 by an administrative act of the Registrar of Companies of the United Kingdom (UK), which proceeding is controlled or supervised by the High Court of Justice of England and Wales (Chancery Division, Companies Court) in proceeding No. 2623 of 2009 (First Defendant’s UK Court Proceeding) and which act was recorded in the First Defendant’s UK Court Proceeding, be recognised as a foreign proceeding within the meaning of paragraph (a) of Article 2 of the Model Law.

2.    Pursuant to section 6 of the Act and clause 2 of Article 17 of the Model Law, that the First Defendant’s Foreign Proceeding be recognised as a foreign main proceeding within the meaning of paragraph (b) of Article 2 of the Model Law.

3.    Pursuant to Article 21 of the Model Law that:

(a)    the administration or realisation of all the First Defendant’s assets in Australia be entrusted to the Plaintiff;

(b)    the Plaintiff, in his capacity as foreign representative of the First Defendant, may, as he deems appropriate but subject to any further order of the Court, examine witnesses, take evidence and obtain delivery of information concerning the First Defendant’s assets, affairs, rights, obligations or liabilities;

(c)    subject to the provisions of the Corporations Act 2001 (Cth) (Corporations Act), all powers normally available to liquidators appointed under the provisions of the Corporations Act be made available to the Plaintiff; and

(d)    the commencement or continuation of any individual action or legal proceeding (including without limitation any arbitration, mediation or any judicial, quasi-judicial, administrative action, proceeding or process whatsoever) against the First Defendant or any of its assets, rights and obligations is stayed, to the extent that it is not stayed under Article 20(1)(a) of the Model Law.

4.    Each party and each creditor or person claiming to be a creditor of the First Defendant have liberty to apply on 3 days notice.

5.    In satisfaction of sub-rules (c) and (d) of rule 15A.7(1) of the Federal Court (Corporations) Rules 2000 (Rules), the Plaintiff:

(a)    within 7 days of the making of orders 1 to 3 above, send to each person in Australia whose claim to be a creditor of the First Defendant is known to the Plaintiff, a notice of the making of orders 1 to 3 above in accordance with Form 21; and

(b)    within 14 days of the making of orders 1 to 3 above, publish a notice of the making of orders 1 to 3 above in accordance with Form 21 in a daily newspaper circulating generally in Australia, but otherwise not be required to comply with rule 15A.7(1)(d).

6.    Pursuant to section 6 of the Act and clause 1 of Article 17 of the Model Law, that the proceeding (Second Defendant’s Foreign Proceeding) whereby the Plaintiff was appointed as the liquidator of the Second Defendant under a Creditor’s Voluntary Liquidation on 19 April 2012 by an administrative act of the Registrar of Companies of the UK, which proceeding is controlled or supervised by the High Court of Justice of England and Wales (Chancery Division, Companies Court) in proceeding No. 2622 of 2009 (Second Defendant’s UK Court Proceeding) and which act is recorded in the Second Defendant’s UK Court Proceeding, be recognised as a foreign proceeding within the meaning of paragraph (a) of Article 2 of the Model Law.

7.    Pursuant to section 6 of the Act and clause 2 of Article 17 of the Model Law, that the Second Defendant’s Foreign Proceeding be recognised as a foreign main proceeding within the meaning of paragraph (b) of Article 2 of the Model Law.

8.    Pursuant to Article 21 of the Model Law that:

(a)    the administration or realisation of all the Second Defendant’s assets in Australia be entrusted to the Plaintiff;

(b)    the Plaintiff, in his capacity as foreign representative of the Second Defendant, may, as he deems appropriate but subject to any further order of the Court, examine witnesses, take evidence and obtain delivery of information concerning the Second Defendant’s assets, affairs, rights, obligations or liabilities;

(c)    subject to the provisions of the Corporations Act, all powers normally available to liquidators appointed under the provisions of the Corporations Act be made available to the Plaintiff; and

(d)    the commencement or continuation of any individual action or legal proceeding (including without limitation any arbitration, mediation or any judicial, quasi-judicial, administrative action, proceeding or process whatsoever) against the Second Defendant or any of its assets, rights and obligations is stayed, to the extent that it is not stayed under Article 20(1)(a) of the Model Law.

9.    Each party and each creditor or person claiming to be a creditor of the Second Defendant have liberty to apply on 3 days notice.

10.    In satisfaction of sub-rules (c) and (d) of rule 15A.7(1) of the Rules, the Plaintiff:

(a)    within 7 days of the making of orders 6 to 8 above, send to each person in Australia whose claim to be a creditor of the Second Defendant is known to the Plaintiff, a notice of the making of orders 6 to 8 above in accordance with Form 21; and

(b)    within 14 days of the making of orders 6 to 8 above, publish a notice of the making of orders 6 to 8 above in accordance with Form 21 in a daily newspaper circulating generally in Australia, but otherwise not be required to comply with rule 15A.7(1)(d).

11.    Liberty to the Plaintiff to apply on 3 days notice.

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

REASONS FOR JUDGMENT

1    The plaintiff is the United Kingdom-based liquidator appointed in a creditors’ voluntary liquidation of each of the first and second defendants. The first and second defendants are incorporated in the United Kingdom. Neither company is registered as a foreign company in Australia.

2    The plaintiff seeks relief pursuant to s 6 of the Cross-Border Insolvency Act 2008 (Cth) (the Act) and cl 1 of Art 17 of the UNCITRAL Model Law on Cross-Border Insolvency (the Model Law). He also seeks orders pursuant to Art 21 of the Model Law and, pursuant to r 15A.1 of the Federal Court (Corporations) Rules 2000 (Cth) (the Rules), a modified application of r 15A.7(1) insofar as it concerns the giving of notice of the making of the orders he seeks.

3    On 30 October 2012, the Court made orders for the giving of notice of the plaintiff’s application to each Australian creditor known to the plaintiff and to each of Applied Filters Pty Limited (Applied Filters) and Ariel Industries Pty Limited (Ariel Industries). Applied Filters and Ariel Industries are local companies. Orders were also made requiring the plaintiff to give notice of his application in The Australian and the Australian Financial Review newspapers.

4    There is evidence before the Court establishing that the plaintiff has complied with these notice requirements. No notice of appearance has been filed by any person intending to appear on the hearing of the application. The plaintiff was the only person appearing on the hearing of the application.

background

5    The defendants own assets in Australia.

6    The first defendant is the registered proprietor of land in Cheltenham, Victoria. It also owns all the shares in Applied Filters.

7    Applied Filters carries on the business of manufacturing air filters from premises on the Cheltenham land. It pays rent to the first defendant of approximately $59,043 per year.

8    The first defendant also owns 80,200 shares in Ariel Industries. The second defendant owns the remaining 800 shares in that company. Ariel Industries carries on the business of developing, manufacturing and supplying polyurethane systems.

9    The orders presently sought by the plaintiff are to enable him to more effectively realise the defendants’ Australian assets.

10    The evidence establishes that, prior to being appointed as the liquidator of each of the defendants, the plaintiff had been appointed as the administrator of each of them. He was appointed on 7 September 2009 by the defendants pursuant to para 22 of Sch B1 of the Insolvency Act 1986 (UK) (the Insolvency Act UK). The appointments were made in the Chancery Division of the High Court of Justice of England and Wales (the High Court) in the Manchester District Registry (the Manchester Registry), under case numbers 2623 and 2622 of 2009.

11    Under para 49 of Sch B1 to the Insolvency Act UK, an administrator normally has eight weeks from the date of appointment to send to all creditors a statement setting out his proposals for achieving the purpose of the administration. The plaintiff was granted a number of extensions of time by the High Court to send statements to creditors and to hold creditors’ meetings.

12    The plaintiff reported to the creditors of each defendant on 5 March 2012. In that report, he proposed that he continue to manage the business and affairs of the first and second defendants and that, in each case, the creditors consider filing notices under the Insolvency Act UK requesting that each company be placed into creditors’ voluntary liquidation. These proposals were considered and approved by creditors on 26 March 2012. Notices advising of the result were filed in the Manchester Registry of the High Court on 2 April 2012. A notice of move from administration to a creditors’ voluntary liquidation was filed with the registrar of companies in respect of the first defendant on 17 April 2012 and in respect of the second defendant on 19 April 2012. Upon each notice being duly registered, the plaintiff was appointed as the liquidator of the first defendant and the second defendant. Copies of the notices were filed by the plaintiff at the Manchester Registry of the High Court on 16 April 2012.

13    In this connection, para 83 of Sch B1 to the Insolvency Act UK provides:

83    (1)    This paragraph applies in England and Wales where the administrator of a company thinks –

(a)        that the total amount which each secured creditor of the company is likely to receive has been paid to him or set aside for him, and

(b)    that a distribution will be made to unsecured creditors of the company (if there are any).

(2)    This paragraph applies in Scotland where the administrator of a company thinks –

(a)    that each secured creditor of the company will receive payment in respect of his debt, and

(b)    that a distribution will be made to unsecured creditors (if there are any).

(3)    The administrator may send to the registrar of companies a notice that this paragraph applies.

(4)    On receipt of a notice under sub-paragraph (3) the registrar shall register it.

(5)    If an administrator sends a notice under sub-paragraph (3) he shall as soon as is reasonably practicable –

(a)    file a copy of the notice with the court, and

(b)    send a copy of the notice to each creditor of whose claim and address he is aware.

(6)    On the registration of a notice under sub-paragraph (3) –

(a)    the appointment of an administrator in respect of the company shall cease to have effect, and

(b)    the company shall be wound up as if a resolution for voluntary winding up under section 84 were passed on the day on which the notice is registered.

(7)    The liquidator for the purposes of the winding up shall be –

(a)    a person nominated by the creditors of the company in the prescribed manner and within the prescribed period, or

(b)    if no person is nominated under paragraph (a), the administrator.

(8)    In the application of Part IV to a winding up by virtue of this paragraph –

(a)    section 85 shall not apply,

(b)    section 86 shall apply as if the reference to the time of the passing of the resolution for voluntary winding up were a reference to the beginning of the date of registration of the notice under sub-paragraph (3),

(c)    section 89 does not apply,

(d)    sections 98, 99 and 100 shall not apply,

(e)    section 129 shall apply as if the reference to the time of the passing of the resolution for voluntary winding up were a reference to the beginning of the date of registration of the notice under sub-paragraph (3), and

(f)    any creditors’ committee which is in existence immediately before the company ceases to be in administration shall continue in existence after that time as if appointed as a liquidation committee under section 101.

14    It is convenient at this stage to refer to a number of provisions of the Insolvency Act UK relating to a voluntary winding up and, specifically, a creditors’ voluntary winding up.

15    Under s 90 of the Insolvency Act UK, a winding up in which a declaration of solvency under s 89 of the Insolvency Act has not been made is a creditors’ voluntary winding up. A declaration of solvency is one made at a directors’ meeting to the effect that the directors have made a full inquiry into the company’s affairs and that, having done so, they have formed the opinion that the company will be able to pay its debts in full, together with interest at the official rate, within such period, not exceeding 12 months from the commencement of the winding up, as may be specified in the declaration. In the present case, no declaration of solvency was made. The reports to creditors made by the plaintiff as administrator of each of the defendants showed a deficiency of assets over liabilities but at least the possibility that a dividend might be paid to the unsecured creditors of each company.

16    The court may appoint a liquidator if there is no liquidator acting, and remove a liquidator and appoint another to act, on cause being shown: s 108. The liquidator must, within 14 days after appointment, publish in the Gazette (relevantly, the London Gazette) and deliver to the registrar of companies a notice of appointment in the prescribed form. If the liquidator fails to comply with that obligation, he or she is liable to a fine and, for continued contravention, to a daily default fine: s 109.

17    The liquidator or any contributory or creditor may apply to the court to determine any question arising in the winding up or to exercise all or any powers which the court might exercise if the company were being wound up by the court: s 112(1). If the court is satisfied that the determination of the question or the required exercise of power will be just and beneficial, it may accede wholly or partially to the application on such terms and conditions as it thinks fit, or make such other order on the application as it thinks just: s 112(2). The voluntary winding up of a company does not bar the right of any creditor or contributory to have it wound up by the court. However, in the case of an application by a contributory, the court must be satisfied that the rights of the contributories will be prejudiced by a voluntary winding up: s 116.

18    Chapter VII of Pt IV of the Insolvency Act UK provides for the liquidator’s powers and duties in a voluntary winding up. In the case of a creditors’ voluntary winding up, the liquidator may, without sanction, exercise certain powers under the Insolvency Act UK and, with the sanction of the court or of a liquidation committee (or a meeting of the company’s creditors), exercise certain other powers. However, the liquidator requires the sanction of the court to exercise most of these powers during the period before the holding of the creditors’ meeting under s 98 of the Insolvency Act: s 165 and s 166.

19    Throughout the Insolvency Act UK, the expression “the court” in relation to a company means a court having jurisdiction to wind up the company: s 251. In the present case, that appears to be the High Court because it is in that court that the plaintiff filed the notices of move, in respect of each defendant, from administration to creditors’ voluntary winding up.

20    The plaintiff has deposed to the fact that each of the defendants was and is insolvent. This is borne out by the financial information contained in the reports to creditors that are in evidence.

21    The plaintiff has realised all the assets of the first defendant in the United Kingdom. The only outstanding realisation of assets of the second defendant in the United Kingdom relates to two loans. The plaintiff has stated that he will be in a position to finalise the liquidation of the first defendant upon the realisation of its remaining assets in Australia and the resolution of certain Australian tax issues. Finalisation of the liquidation of the second defendant will be dependent on the timing and recovery of the two loans as well as the realisation of its assets in Australia.

Australian legislation

22    Section 6 of the Act provides that the Model Law, with certain modifications, has the force of law in Australia. By s 10 of the Act, this Court is designated as a court that is competent to perform the functions referred to in the Model Law relating to the recognition of foreign proceedings and cooperation with foreign courts.

23    Article 15(1) of the Model Law provides as follows:

A foreign representative may apply to the court for recognition of the foreign proceeding in which the foreign representative has been appointed.

24    The expressions “foreign proceeding”, “foreign main proceeding”, “foreign representative” and “foreign court” are defined by Art 2 of the Model Law as follows:

(a)    “Foreign proceeding” means a collective judicial or administrative proceeding in a foreign State, including an interim proceeding, pursuant to a law relating to insolvency in which proceeding the assets and affairs of the debtor are subject to control or supervision by a foreign court, for the purpose of reorganization or liquidation;

(b)    “Foreign main proceeding” means a foreign proceeding taking place in the State where the debtor has the centre of its main interests;

…

(d)    “Foreign representative” means a person or body, including one appointed on an interim basis, authorized in a foreign proceeding to administer the reorganization or the liquidation of the debtor’s assets or affairs or to act as a representative of the foreign proceeding;

(e)     “Foreign court” means a judicial or other authority competent to control or supervise a foreign proceeding;

…    

25    Article 17(1) provides that a foreign proceeding shall be recognised if it meets the definition in Art 2(a); the person applying for recognition meets the definition of “foreign representative” in Art 2(d); the application is made to this Court; and certain procedural requirements (namely, those specified in Art 15(2) – to which I will make further reference) have been satisfied.

26     Article 17(2)(a) provides that a foreign proceeding shall be recognised as a “foreign main proceeding” if it is taking place in the State (here, the United Kingdom) where the debtor (here, the first and second defendants) has the centre of its main interests.

issues

27    The issues that arise for determination in the present proceeding, in relation to each defendant, are whether:

(a)    the creditors’ voluntary winding up is a “foreign proceeding”;

(b)    the plaintiff is a “foreign representative”;

(c)    the creditors’ voluntary winding up is a “foreign main proceeding”;

(d)    the relevant procedural requirements of the Act and the Model Law (specifically Art 15(2) and (3)) have been complied with; and

(e)    the procedural requirements of the Rules have been complied with.

Consideration

Foreign proceeding

28    I am satisfied that the creditors’ voluntary winding up in respect of each defendant is a foreign proceeding within the meaning of Art 2(a) of the Model Law.

29    First, I am satisfied that it is a collective proceeding in a foreign State (namely, the United Kingdom). The proceeding is collective in the sense that it affects the creditors of each defendant collectively. Section 107 of the Insolvency Act UK provides for each defendant’s property to be applied in satisfaction of its liabilities pari passu and, subject to that application, to be distributed among its members according to their rights and interests in the company.

30    Secondly, I am satisfied, for the following reasons, that each winding up is a judicial or administrative proceeding. Little assistance is provided in the available case law on this subject, particularly in relation to a creditors’ voluntary winding up. The question is not, however, devoid of authority.

31    In In re ABC Learning Centres Limited n/k/a ZYX Learning Centres Limited & A.B.C. USA Holdings Pty Limited, Debtors in Foreign Proceedings 445 BR 318 (Bkrtcy.D.Del. 2010), Gross J sitting in the United States Bankruptcy Court held (at 328) that an Australian creditors’ voluntary winding up under the Corporations Act 2001 (Cth) (the Corporations Act) was “primarily administrative in character, and at times judicial in character” and therefore satisfied the relevant requirement of the Model Law as it exists under United States law.

32    A creditors’ voluntary winding up under the Insolvency Act UK has broadly similar characteristics. The evidence shows that the plaintiff was appointed as the liquidator of each of the defendants by administrative arrangements put in place by the Insolvency Act UK: see [12] and [13] above. The plaintiff’s functions and duties, as the liquidator of each of the defendants, were regulated by the Insolvency Act UK and subject, ultimately, to the supervision of the High Court which, as I have noted, has the power to remove a liquidator and to appoint another in that person’s place under s 108. The High Court’s supervision over each creditors’ voluntary winding up is also manifested by the fact that, at certain times during the winding up, the powers conferred on a liquidator under certain provisions of the Insolvency Act UK can only be exercised with the sanction of the court: s 166. As I have also noted, the High Court has the power to determine questions arising in the winding up or to exercise the powers it might exercise if the winding up were by the High Court, should it think that the determination of the question or the exercise of the powers will be just and beneficial: s 112. In those circumstances, the High Court has a plenary power to make such order as it thinks just: s 112(2).

33    The requirement that the proceeding be a judicial or administrative proceeding cannot be divorced from the additional requirement that the proceeding be “pursuant to a law relating to insolvency”. That particular requirement is satisfied here. The evidence establishes that insolvency is the particular reason why the administration of each defendant proceeded to a creditors’ voluntary winding up. Each proceeding is a creditors’ voluntary winding up precisely because a declaration of solvency has not been made: s 90 of the Insolvency Act UK.

34    Article 8 of the Model Law provides:

In the interpretation of this Law, regard is to be had to its international origin and to the need to promote uniformity in its application and the observance of good faith.

35    UNCITRAL has published a Guide to the enactment of the Model Law (the Guide). The purpose of the Guide is expressed in the following terms:

UNCITRAL considered that the Model Law would be a more effective tool for legislators if it were accompanied by background and explanatory information. While such information would primarily be directed to executive branches of Governments and legislators preparing the necessary legislative revisions, it would also provide useful insight to other users of the text such as judges, practitioners and academics. Such information might also assist States in considering which, if any, of the provisions should be varied in order to be adapted to the particular national circumstances.

36    In dealing with the types of foreign proceedings that are intended to be covered by the Model Law, the Guide states (at [23] to [25]):

To fall within the scope of the Model Law, a foreign insolvency proceeding needs to possess certain attributes. These include the following: basis in insolvency-related law of the originating State; involvement of creditors collectively; control or supervision of the assets and affairs of the debtor by a court or another official body; and reorganization or liquidation of the debtor as the purpose of the proceeding (see article 2, subparagraph (a)).

Within those parameters, a variety of collective proceedings would be eligible for recognition, be they compulsory or voluntary, corporate or individual, winding-up or reorganization. It also includes those in which the debtor retains some measure of control over its assets, albeit under court supervision (e.g. suspension of payments, “debtor in possession”).

An inclusive approach is used also as regards the possible types of debtors covered by the Model Law. Nevertheless, the Model Law refers to the possibility of excluding from its scope of application certain types of entities, such as banks or insurance companies specially regulated with regard to insolvency under the laws of the enacting State (article 1, paragraph 2).

37    The Explanatory Memorandum to the Cross-Border Insolvency Bill 2008 (Cth) provides (at [12]):

The Bill applies the Model law to both personal and corporate debtors. As the mobility of labour across jurisdictions increases, and as advances in communications and information technology make it easier to invest in other jurisdictions, it is more likely that individuals will have personal assets in several jurisdictions. Cooperation between jurisdictions is equally important in cases of complex personal insolvencies as it is in corporate insolvencies.

38    The Corporate Law Economic Reform Program’s Proposals for Reform: Paper No. 8 headed “Cross-Border Insolvency – Promoting international cooperation and coordination” states (at page 23):

In summary, the Model Law covers the following procedural issues:

•    inbound requests for recognition of a foreign insolvency proceeding;

•    outbound requests for assistance from a foreign State in connection with a proceeding in the enacting State under its laws relating to insolvency;

•    requests for coordination of insolvency proceedings taking place concurrently in a foreign State and the enacting State in respect of the same debtor; and

•    participation by foreign creditors or other interested parties in proceedings occurring in the enacting State.

To constitute a ‘foreign proceeding’ in a foreign State, the proceeding must be a ‘collective judicial or administrative proceeding’, it must be ‘pursuant to a law relating to insolvency’, it must entail control or supervision of the assets and affairs of the debtor by a foreign court or other authority, and it must be for a ‘purpose of reorganisation or liquidation’.

In the Australian Corporations Act context, that means the scope of the Model Law would extend to liquidations arising from insolvency, reconstructions and reorganisations under Part 5.1 and voluntary administrations under Part 5.3A. It would not extend to receiverships involving the private appointment of a controller. It would also not extend to a members’ voluntary winding up or a winding up by a court on just and equitable grounds as such proceedings may not be insolvency related.

39    In my view, the Court is entitled to look to these sources in construing the meaning of “foreign proceeding” as defined in Art 2(a): see s 15AB of the Acts Interpretation Act 1901 (Cth). In Tucker and Others v Aero Inventory (UK) Ltd (No 2) (2009) 181 FCR 374, Lindgren J at [22] expressed the view that the Explanatory Memorandum and CLERP 8 were extrinsic materials that informed the scope and content of the definition.

40    The terms of s 8 of the Act are also of some assistance on this question. Section 8 specifically identifies that, wherever the Model Law provides that the laws of the enacting State relating to insolvency are to be identified, the Model Law has the force of law in Australia as if the Model Law referred to (amongst other things) Ch 5 of the Corporations Act (other than Pts 5.2 and 5.4A). Part 5.5 of the Corporations Act deals with voluntary winding up. The specific identification of Ch 5 of the Corporations Act (other than Pts 5.2 and 5.4A) provides support for the position that a voluntary winding up – and, specifically in the present case, the creditors’ voluntary winding up of each defendant – is to be regarded as a proceeding “relating to insolvency” for the purpose of the definition in Art 2(a).

41    Indeed, in Re Chow Cho Poon (Private) Ltd (2011) 80 NSWLR 507, Barrett J (at [34]-[52]) surveyed a number of overseas authorities which support the contention that, for the purpose of the definition in Art 2(a), a law might be one “relating to insolvency” where it deals with winding up on bases that include insolvency, even though, in a particular case, the winding up proceeds on a ground that is not itself apparently concerned with the insolvency of the company.

42    It is not necessary for me to consider this wider basis in the present case because I am satisfied that, by reason of each of the defendants being subject to a creditors’ voluntary winding up under the Insolvency Act UK, each defendant is subject to a judicial or administrative proceeding that is obviously pursuant to a law relating to insolvency.

43    Thirdly, I am satisfied that, in each case, the proceeding is one in which the assets and affairs of the relevant defendant are subject to control or supervision by a foreign court (in this case, the High Court), for the purpose of liquidation.

Foreign representative

44    In light of the matters referred to in [12] and [13] above, I am satisfied that the plaintiff is a foreign representative within the meaning of Art 2(d) of the Model Law.

Foreign main proceeding

45    I am satisfied that the creditors’ voluntary winding up is a foreign main proceeding within the meaning of Art 2(b) of the Model Law. Each of the defendants was incorporated in the United Kingdom and traded there. Apart from the Australian assets to which I have referred, neither company has any business interest in Australia, or in any other country. The United Kingdom is the State in which each defendant has the centre of its main interests.

Procedural requirements of the Act and the Model Law

46    An application for recognition must be accompanied by proof (as described in Art 15(2)) of the existence of the foreign proceeding and of the appointment of the foreign representative. It must also be accompanied by a statement identifying all foreign proceedings in respect of the debtor (here, the defendants) that are known to the foreign representative (here, the plaintiff): Art 15(3).

47    As to the first matter, Art 15(2) provides that the application shall be accompanied by a certified copy of the decision commencing the foreign proceeding and appointing the foreign representative, or a certificate from the foreign court affirming the existence of the foreign proceeding and the appointment of the foreign representative or, in the absence of this evidence, “other evidence acceptable to the court” of these matters.

48    In the present case, no documents of certification as described in Art 15(2) are available. Nevertheless, evidence has been adduced which has enabled me to make the findings in [10] to [12] above. This evidence includes verified copies of minutes, court orders, reports to creditors and company searches in relation to the appointment and activities of the plaintiff as administrator of the defendants, verified copies of the notices of move, relevant correspondence to the registrar of companies and the Manchester Registry of the High Court, and company searches in relation to the move from administration to creditors’ voluntary winding up and the registration of the plaintiff as the liquidator of each defendant. In the circumstances, I am satisfied that the requirement of Art 15(2) has been satisfied.

49    As to the second matter, the plaintiff has deposed that there are no other foreign proceedings known to him involving the first or second defendant. I am satisfied that the requirement of Art 15(3) has been satisfied.

50    Section 13 of the Act provides:

In addition to the requirement in paragraph 3 of Article 15 of the Model Law (as it has the force of law in Australia) that an application for recognition be accompanied by a statement identifying all foreign proceedings in respect of the debtor that are known to the foreign representative, the application must be accompanied by a statement identifying:

(a) all proceedings under the Bankruptcy Act 1966 in respect of the debtor; and

(b) any appointment of a receiver (within the meaning of section 416 of the

Corporations Act 2001), or a controller or a managing controller (both within the

meaning of section 9 of that Act), in relation to the property of the debtor; and

(c) all proceedings under Chapter 5, or section 601CL, of the Corporations

Act 2001 in respect of the debtor;

that are known to the foreign representative.

51    The plaintiff has deposed that he is not aware of any proceedings or appointments identified in s 13 of the Act. I am satisfied that the requirement of s 13 of the Act has been satisfied.

Procedural requirements of the Rules

52    Division 15A of the Rules prescribes a number of procedural requirements. I do not propose to detail those requirements here. Counsel for the plaintiff has provided a convenient checklist of the requirements as they apply in this case, with reference to the evidence of compliance in each case. I am satisfied that the relevant requirements have been complied with.

Disposition

53    The plaintiff has demonstrated a proper basis for the making of the orders he seeks.

Associate:

Dated:    26 June 2013