In the matter of Le Meilleur Pty Ltd (subject to Deed of Company Arrangement); Le Meilleur Pty Ltd (subject to Deed of Company Arrangement) & Ors v Jin Heung Mutual Savings Bank Co Ltd & Anor

[2011] NSWSC 1115

Supreme Court of NSW

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1. CORPORATIONS — whether deed of company arrangement was in conformity with resolution passed at the second meeting of creditors and hence a binding instrument within the meaning of s 444B(6) of the Corporations Act 2001 (Cth) — whether second defendant voted by proxy for deed in circumstances where vote was carried "on the voices" and second defendant's proxy held multiple proxies — whether, if the deed is a binding instrument and second defendant is bound by it, the deed or part thereof should be terminated or second defendant granted relief against the operation of some or all of its terms — whether first and second defendants should be compelled pursuant to s 442C to deliver discharges of mortgages so contracts for sale entered into by deed administrators can be completed — HELD — deed is not a binding instrument within the meaning of s 444B(6) as it does not accord with the deed proposal the subject of the resolution on which creditors voted — second defendant not bound by deed since the manner in which a vote was taken at the meeting precludes finding that the holder of its proxy validly voted in favour of deed — accordingly, administration terminated by reason of s 446A and caused creditors voluntary winding up to arise — CIVIL PROCEDURE — application after close of submissions to amend plaintiffs' originating process to seek declaratory or other relief in relation to a claimed equitable charge or lien over land where Anshun raised — HELD — application dismissed