IN THE MATTER OF JOHN PETTIT PTY LTD (SUBJECT TO A DEED OF COMPANY ARRANGEMENT)

Transcription

1 Form 2 (rule 2.2) Originating process IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION NUMBER: ;)0 (4-/ (S'.3 (2? SYDNEY REGISTRY CORPORATIONS LIST IN THE MATTER OF JOHN PETTIT PTY LTD (SUBJECT TO A DEED OF COMPANY ACN FILED 2 1 MAY 201L SHAUN FRASER AND ANTHONY MCGRATH IN THEIR CAPACITY AS JOINT AND SEVERAL DEED ADMINISTRATORS OF JOHN PETTIT PTY LTD (SUBJECT TO A DEED OF COMPANY First Plaintiffs JOHN PETTIT PTY LTD (SUBJECT TO A DEED OF COMPANY ACN Second Plaintiff A DETAILS OF APPLICATION This application is made under sections 447A and 447D of the Corporations Act 2001 (Cth) (the Act). Application by the First Plaintiffs for directions under section 447D and for an order under section 447A of the Act varying the operation of part 5.3A of the Act. Filed on behalf of Prepared by Law firm Tel Address for service Ref The First, Second and Third Plaintiffs Samuel Peter Delaney Corrs Chambers Westgarth (02) Fax (02) Sam.delaney@corrs.com.au 8-12 Chifley Square, Sydney NSW 2000 SD/MXY

2 2 On the facts stated in the supporting affidavit(s), the Plaintiffs seek: 1 A direction that the First Plaintiffs would be justified in: (d) dealing with the bank notes identified in the tab 4 of Exhibit SRF-1 to the Affidavit of Shaun Robert Fraser affirmed on 21 May 2014 (Unclaimed Notes) as the property of the Second Plaintiff; causing any Unclaimed Notes or any of them to be sold by public auction after causing to be published in The Australian Financial Review, at least 5 days before the auction, advertisements advising of the proposed auction of the Unclaimed Notes which include information substantially in terms of the notice contained at tab 22 and tab 23 of Exhibit SRF-1 to the Affidavit of Shaun Robert Fraser affirmed on 21 May 2014; and causing any Unclaimed Notes or any of them to be sold by private sale after causing to be published in The Australian Financial Review, at least 5 days before the sale, advertisements advising of the proposed sale of the Unclaimed Notes which include information substantially in terms of the notice contained at tab 22 and tab 23 of of Exhibit SRF-1 to the Affidavit of Shaun Robert Fraser affirmed on 21 May 2014; applying the proceeds of sale of the Unclaimed Notes: (i) (ii) (iii) towards the payment of the Deed Administrators' costs incurred in connection with realising the Unclaimed Notes; towards satisfying any valid claim against the Second Plaintiff in respect of the Unclaimed Notes; after a period of 3 months, distributing the balance of the proceeds of sale in accordance with the requirements of the deed of company arrangement in respect of the Second Plaintiff, subject to the First Plaintiffs' having complied with 1 and/or above. 2 Orders varying the operation of Part 5.3A of the Act as follows: an order varying s 444F of the Act to the effect that any owner of Unclaimed Notes who has not notified their claim in respect of such Notes by 1 business day prior to their sale, is not entitled to bring any claim against the First Plaintiffs in connection the Unclaimed Notes; in the alternative to above, an order varying s 444F of the Act so as to limit the personal liability of the First Plaintiffs to any owner of Unclaimed Notes who has not notified their claim in respect of such Notes by 1 business prior to their sale, to the amount of funds available to the First Plaintiffs to meet such liability from the Deed Fund established under clause 9.1 of the Deed of Company Arrangement (DOCA); an order varying the DOCA so as to entitle any owner of Unclaimed Notes which are sold by the First Plaintiffs, to participate in a distribution of the Deed Fund as if such owners were Creditors as defined under the DOCA. 3 An order that orders made in accordance with order 2 above do not affect the rights of any owner of Unclaimed Notes against the Second Plaintiff. 4 An order that the First Plaintiffs' costs of the application be the costs in the deed administration of the Second Plaintiff. 5 An order that any person affected by these orders liberty to restore on 3 days' notice.

3 3 Date: 21 May 2014 Signature of first and ~cond practitioner plaintiffs' legal This application will be heard by the Court at Law Courts Building, Queens Square, 184 Phillip Street, Sydney at q < ISCtn/'; on So Nav( co20 \ '-+ B TO: NOTICE TO DEFENDANT(S) (IF ANY) If you or your legal practitioner do not appear before the Court at the time shown above, the application may be dealt with, and an order made, in your absence. As soon after that time as the business of the Court will allow, any of the following may happen: the application may be heard and final relief given; directions may be given for the future conduct of the proceeding, any interlocutory application may be heard. Before appearing before the Court, you must file a notice of appearance, in the prescribed form, in the Registry and serve a copy of it on the plaintiff. Note: Unless the Court otherwise orders, a defendant that is a corporation must be represented at a hearing by a legal practitioner. It may be represented at a hearin b a director of the cor oration ani if the Court rants leave. C APPLICATION FOR WINDING UP ON GROUND OF INSOLVENCY Not applicable. D FILING Date of filing: _ Registrar: _ This originating process is filed by Corrs Chambers Westgarth, solicitors for the Plaintiffs. E SERVICE The plaintiff's address for service is: C/- Corrs Chambers Westgarth Lawyers 8-12 Chifley Square SYDNEY NSW 2000 sam.delaney@corrs.com.au

4 4 It is not intended to serve a copy of this originating application on any person. Note: An address for service includes telephone number, fax number, address, and document exchange address where appropriate.

5 Schedule IN THE SUPREME COURT OF NEW SOUTH WALES NUMBER: EQUITY DIVISION SYDNEY REGISTRY CORPORATIONS LIST IN THE MATTER OF JOHN PETTIT PTY LTD (SUBJECT TO A DEED OF COMPANY ACN First Plaintiffs SHAUN FRASER AND ANTHONY MCGRATH IN THEIR CAPACITY AS JOINT AND SEVERAL DEED ADMINISTRATORS OF JOHN PETTIT PTY LTD (SUBJECT TO A DEED OF COMPANY Second Plaintiff JOHN PETTIT PTY LTD (SUBJECT TO A DEED OF COMPANY ACN Plaintiffs Date: 21 May 2014