UNITED STATES BANKRUPTCY COURT

Transcription

1 0 0 Leib M. Lerner (CA State Bar No. ) Jeffrey E. Tsai (CA State Bar No. 0) ALSTON & BIRD LLP 0 University Avenue, th Floor East Palo Alto, CA 0- Telephone: (0) -000 leib.lerner@alston.com jeff.tsai@alston.com AND Aaron Javian (Pro hac vice to be requested) Adam S. Lurie (Pro hac vice to be requested) LINKLATERS LLP Avenue of the Americas New York, NY 00 Telephone: () -000 aaron.javian@linklaters.com adam.lurie@linklaters.com Attorneys for the Petitioner In re: Forge Group Power Pty Ltd. (in liquidation) (receivers and managers appointed), UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF CALIFORNIA Debtor in a Foreign Proceeding Case No.: Chapter -000 EMERGENCY MOTION TO SHORTEN NOTICE AND SETTING PROCEDURES FOR HEARING TO CONSIDER FOREIGN REPRESENTATIVE S EMERGENCY MOTION FOR ENTRY OF PROVISIONAL RELIEF UNDER U.S.C. 0, AND IN AID OF AUSTRALIAN FOREIGN PROCEEDING EMERGENCY MOTION TO SHORTEN NOTICE AND SETTING PROCEDURES FOR HEARING TO CONSIDER FOREIGN REPRESENTATIVE S EMERGENCY MOTION FOR ENTRY OF PROVISIONAL RELIEF UNDER U.S.C. 0, AND IN AID OF AUSTRALIAN FOREIGN PROCEEDING Case: -000 Doc# Filed: 0/0/ Entered: 0/0/ :: Page of

2 0 0 Mr. Martin Jones, in his capacity as liquidator (the Liquidator or the Petitioner ) and foreign representative of Forge Group Power Pty Ltd. (in liquidation) (receivers and managers appointed) ( Forge Power or the Debtor ), which is currently in a voluntary liquidation in Australia (the Australian Proceeding ), files this motion, pursuant to Rule 00(c)() of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules ) and Rule 00- of the Bankruptcy Local Rules for the Northern District of California (the Local Rules ), seeking entry of an order substantially in the form attached as Exhibit A hereto shortening the notice period and setting procedures with respect to the hearing to consider the Foreign Representative s Emergency Motion for Entry of Provisional Relief Under U.S.C. 0, and in Aid of Australian Foreign Proceeding (the Emergency Relief Motion ). In support of the Motion, the Petitioner respectfully represents as follows : JURISDICTION AND VENUE. This case has been properly commenced under section 0 of title of the United States Code, U.S.C. 0 et seq. (the Bankruptcy Code ) by the filing of the Verified Petition.. This Court has jurisdiction over this matter pursuant to U.S.C. and (a).. This matter is a core proceeding pursuant to U.S.C. (b)().. Venue is proper in this District pursuant to U.S.C. 0. A detailed description of the Debtor and its business and the facts and circumstances supporting this Motion and the Debtor s chapter case are set forth in greater detail in the Declaration of Martin Jones in Support of (I) Verified Petition Under Chapter I for Recognition of Foreign Proceedings and Related Relief, and (II) Foreign Representative s Emergency Motion for Entry of Provisional Relief Under U.S.C. 0, and in Aid of Australian Foreign Proceeding (the Jones Declaration ), which is incorporated herein in its entirety. Capitalized terms used but not defined herein shall have the meaning ascribed to them in the Verified Petition Under Chapter for Recognition of Foreign Proceeding and Related Relief (the Verified Petition ), filed concurrently herewith. REPRESENTATIVE S EMERGENCY MOTION FOR ENTRY OF PROVISIONAL RELIEF UNDER U.S.C. 0, AND IN AID OF AUSTRALIAN FOREIGN PROCEEDING Case: -000 Doc# Filed: 0/0/ Entered: 0/0/ :: Page of

3 0 0. The statutory predicates for the relief requested herein are sections 0(a),,, and of the Bankruptcy Code, Bankruptcy Rule 00(c)(), and Local Rule 00-. PRELIMINARY STATEMENT. Forge Power seeks an immediate hearing on its request for emergency provisional relief to prevent the entry of a final default judgment against it in a Texas state court proceeding (the Texas Case ). The subject of the Texas Case concerns title to certain turbines used as part of Forge Power s operations title that an Australian court has already determined properly belongs to Forge Power, and not its creditor. Nevertheless, that creditor has brought the Texas Case in an attempt to circumvent the decision of the Australian court and upset the orderly administration of Forge Power s voluntary liquidation, in violation of an agreement between the parties to litigate the question of title exclusively in Australia and in direct contravention of the principles underlying bankruptcy proceedings throughout the world. There is a hearing scheduled on the creditor s request for a final default judgment in just three days, on Friday, January, and the court overseeing the Texas Case has indicated that it could enter a final decision as soon as next Monday, January. Such a decision which could impose a constructive trust on the turbines in question as well as other property would cause the Debtor to suffer irreparable harm by depleting its resources and upsetting entirely the orderly administration of the liquidation currently ongoing in Australia.. As such, there is an immediate need for the imposition of provisional relief imposing a stay of the Texas Case. With the hearing in the Texas Case scheduled for the end of this week, the Petitioner respectfully requests that the Court order an immediate hearing on the Emergency Relief Motion so that a final default judgment is not entered against the Debtor. BACKGROUND. The Debtor has been subject to insolvency proceeding in Australia, and the protection of a moratorium against the commencement or continuation of creditor action, since February, REPRESENTATIVE S EMERGENCY MOTION FOR ENTRY OF PROVISIONAL RELIEF UNDER U.S.C. 0, AND IN AID OF AUSTRALIAN FOREIGN PROCEEDING Case: -000 Doc# Filed: 0/0/ Entered: 0/0/ :: Page of

4 See Jones Declaration. Since August, 0, the Debtor and Power Rental Op Co Australia, LLC ( APR OpCo ) and Power Rental Asset Co. Two, LLC ( APR AssetCo ), wholly owned subsidiaries of APR Energy Holdings Ltd ( APR, together with APR OpCo and APR AssetCo, the APR Parties ), have been litigating who has superior title under Australian law to certain turbines (the Turbines ) leased by the APR Parties to the Debtor under Australian law. Id.. On February, 0, the Supreme Court of New South Wales issued a decision (the First Instance Decision ) in favor of Forge Power. Id.. The First Instance Decision is being appealed by the APR Parties. Id.. On July, 0, notwithstanding the moratorium in effect in Australia, APR filed a lawsuit against the Debtor in the District Court of Harris County, Texas ( Texas Court ) to undo the First Instance Decision. See APR Energy Holdings LTD Ltd. v. Forge Group Power Pty Ltd., No. 0- (Tex. July, 0); Jones Declaration. This suit seeks a declaration that the APR Parties and not Forge Power own certain Turbines used in Forge Power s operations. Id. 0. Initially, Forge Power did not respond to the original complaint. Id. On September 0, 0, APR filed a Motion for Default, which was granted on October, 0. Id. On November, 0, APR filed a Motion for Entry of Final Judgment, which would, among other things, impose a constructive trust over the Turbines, a $ million letter of credit ( LOC ) payable to Forge Power obtained by APR to serve as collateral in another proceeding, or any proceeds thereof. Id.. On December, 0, Forge Power filed a special appearance to request that the Texas Court dismiss APR s claims against the Debtor for lack of personal jurisdiction and a motion for continuance of the Texas Court s entry of a final judgment pending its determination of the Debtor s special appearance. Id.. On December, 0, the Texas Court granted the Debtor s motion for continuance, REPRESENTATIVE S EMERGENCY MOTION FOR ENTRY OF PROVISIONAL RELIEF UNDER U.S.C. 0, AND IN AID OF AUSTRALIAN FOREIGN PROCEEDING Case: -000 Doc# Filed: 0/0/ Entered: 0/0/ :: Page of

5 0 0 and scheduled a hearing on Forge Power s special appearance for the end of this week, on January, 0. Id. The Texas court indicated that, subject to its ruling on Forge Power s special appearance, it could enter a final judgment in favor of APR as soon as January, 0. Id.. Accordingly, the Petitioner has filed concurrently herewith the Verified Petition seeking, among other things, recognition of the Australian Proceeding as a foreign main proceeding. However, because the automatic stay imposed by section of the Bankruptcy Code does not attach until the entry of an order granting the Verified Petition, the Petitioner has filed the Emergency Relief Motion to impose a stay on a provisional basis pending the Court s determination with respect to the Verified Petition. The Petitioner respectfully requests that this Court consider the Emergency Relief Motion on shortened notice for the reasons set forth herein. BASIS FOR RELIEF. Through this Motion, the Foreign Representative seeks to shorten the time for notice of the Emergency Relief Motion and set corresponding procedures. Bankruptcy Rule 00(c)() authorizes the Court, for good cause shown, to reduce notice periods for motions with or without notice. See Fed. R. Bankr. P. 00(c)(). Specifically, under Bankruptcy Rule 00(c)(), when an act is required or allowed to be done at or within a specified time by these rules or by a notice given thereunder or by order of court, the court for cause shown may in its discretion with or without motion or notice order the period reduced. Ample cause exists to shorten the notice period for the Emergency Relief Motion.. As explained in the Emergency Relief Motion, entry of a Final Judgment by the Texas Court fixing damages and imposing a constructive trust on property of Forge Power s estate, including the LOC, would immediately and irreparably harm Forge Power s ability to realize its assets for the benefit of its creditors in accordance with the statutory priority afforded to creditors in voluntary proceeding under the Australia Corporations Act 00. Further, the Texas Case, even REPRESENTATIVE S EMERGENCY MOTION FOR ENTRY OF PROVISIONAL RELIEF UNDER U.S.C. 0, AND IN AID OF AUSTRALIAN FOREIGN PROCEEDING Case: -000 Doc# Filed: 0/0/ Entered: 0/0/ :: Page of

6 0 0 absent an adverse finding, will continue to deplete the Debtor s precious resources. See Jones Declaration 0,,. Because the Texas Court has indicated that it could enter a final judgment in favor of APR as soon as January, 0, there is an immediate need to impose a stay with respect to the Texas Case.. Accordingly, the Petitioner respectfully requests that the Court schedule the hearing on the Emergency Relief Motion as soon as the Court s schedule permits. Local Rule 00-(c) provides that [a]bsent exigent circumstances, any motion [to shorten time] shall be heard on at least hours notice to the respondent. Petitioner respectfully submits that exigent circumstances exist here, for the reasons discussed above, necessitating that the hearing on the Emergency Relief Motion be heard on less than hours notice, subject to the Court s availability. In light of the scheduled hearing in the Texas Case on January, 0, Petitioner respectfully requests that the Court set the hearing on the Emergency Relief Motion prior to January. Petitioner proposes that any response or objections to the Emergency Relief Motion should be filed with the Court by :00 p.m. Pacific Time on Wednesday, January, and that a hearing should be scheduled for Thursday, January at :00 a.m. Pacific Time or as soon thereafter as the parties may be heard. NOTICE. Notice of this Motion will be provided, and a copy of this Motion has been served, upon: (i) the United States Trustee for the Northern District of California; (ii) the Debtor; (iii) all persons or bodies authorized to administer foreign proceeding of the Debtor; (iv) all parties to litigation pending in the United States in which the Debtor is a party at the time of the filing of Debtor s Verified Petition; (v) all entities against whom provisional relief is being sought pursuant to of the Bankruptcy Code; (vi) all parties that file a notice of appearance in this case; and (vii) other parties that the Court may direct. REPRESENTATIVE S EMERGENCY MOTION FOR ENTRY OF PROVISIONAL RELIEF UNDER U.S.C. 0, AND IN AID OF AUSTRALIAN FOREIGN PROCEEDING Case: -000 Doc# Filed: 0/0/ Entered: 0/0/ :: Page of

7 0 0 COMPLIANCE WITH LOCAL RULE 00-(C) A. Reason for the Shortening of Time. The reasons for the shortening of time to hear the Emergency Relief Motion are fully set forth in this Motion. B. No Prior Request. No prior request for the relief sought herein has been made to this or any other court, and no previous time modifications have been entered in this case. C. Effect on the Case Schedule 0. Because no hearings or other events have been set by the Court in this case, granting the relief requested herein will not have any effect on the schedule of this case. D. Efforts to Meet and Confer With Affected Parties. Counsel for the Petitioner will, immediately subsequent to filing this Motion, notify counsel to APR, the only known party who will be directly affected by the relief sought in the Emergency Relief Motion, that the Motion has been filed and to discuss the scheduled proposed in Paragraph infra. [Remainder of page intentionally left blank] REPRESENTATIVE S EMERGENCY MOTION FOR ENTRY OF PROVISIONAL RELIEF UNDER U.S.C. 0, AND IN AID OF AUSTRALIAN FOREIGN PROCEEDING Case: -000 Doc# Filed: 0/0/ Entered: 0/0/ :: Page of

8 0 0 CONCLUSION WHEREFORE, for the reasons set forth above, the Petitioner respectfully requests that the Court (i) enter an order substantially in the form attached hereto as Exhibit A shortening the notice period with respect to the Emergency Relief Motion and (ii) grant such other and further relief as the Court may deem just and proper. DATED: January, 0 Leib M. Lerner Jeffrey E. Tsai ALSTON & BIRD LLP /s/ Leib M. Lerner Leib M. Lerner Attorneys for the Petitioner REPRESENTATIVE S EMERGENCY MOTION FOR ENTRY OF PROVISIONAL RELIEF UNDER U.S.C. 0, AND IN AID OF AUSTRALIAN FOREIGN PROCEEDING Case: -000 Doc# Filed: 0/0/ Entered: 0/0/ :: Page of