LIST COMMERCIAL COURT S Cl 2011 IN THE MATTER OF THE WILLMOTT FORESTS PROJECT ARSN

Transcription

1 IN THE SUPREME COURT OF VICTORIA AT MELBOURNE COMMERCIAL AND EQUITY DIVISION LIST COMMERCIAL COURT S Cl 2011 IN THE MATTER OF THE WILLMOTT FORESTS PROJECT ARSN BETWEEN WILLMOTT FORESTS LIMITED (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) ACN (IN ITS CAPACITY AS A MEMBER OF THE PROJECT) AND OTHERS Plaintiffs and GRIMSEY FINANCIAL SERVICES PTY LTD ACN AND OTHERS Defendants CERTIFICATE IDENTIFYING EXHIBIT Date of document: 21 June 2011 Filed on behalf of: Prepared by: The Plaintiffs Solicitor code: Lawyers DX Melbourne 530 Collins Street Tel Fax Melbourne VIC 3000 Ref CCHM: (Clint Hinchen) This is the exhibit marked BW-3 now produced and shown to BRYAN WEBSTER at the time of affirming his affidavit on 21 June Before me MATTHEW SIMON McCARTHY of 530 Collins Street, Melbourne Victoria 2000 An Australian Legal Practitioner within the meaning of the Legal Profession Act 2004 Exhibit BW3 Copy of Deed of Appointment of Receiver and dated 6/9/10

2 Deed of Appointment of Receiver and CBA Corporate Services (NSW) Pty Ltd (in its capacity as trustee of the Secondary Security Trust Deed) Mark Francis Xavier Mentha Bryan Webster Re: WlThnott Forests Limited (ACN ) Level Collins Street Melbourne VIC 3000 Australia Tel Fax Copyright ARew MThurRobInon, AU5U

3 Allens Arthur Robinson Table of Contents 1,. Definitions and Interpretation I 11 Definitions I 1.2 Interpretation Joint and several Chargee capacity 3 2. Appointment 3 3. Powers 3 4. Remuneration 4 5. Termination 4 6. Notices 4 7. Assignment Assignment by Receiver Assignment by Chargee. 4 B. No Waiver 5 9. Stamp Duty and Costs Governing Law and Jurisdiction Counterparts 5 Schedule 6 Security 6 c,mim A v Page ()

4 l Date 6 September 2010 Parties CBA Corporate Services (NSW) Ply Ltd (ACN ) (in Its capacity as trustee of the Secondary Security Trust Deed) incorporated in Australia of Level 7, 48 Martin Place, Sydney 2000 (the Chargee) Mark Francis Xavier Mentha and Bryan Webster of KortlaMentha, Level 24, 333 Collins Street, Melbourne, Victoria, Australia (jointly and each of them severally, the Receiver) Recitals A B C D The Chargor has granted to the Chargee the Security over the Charged Property. The Security is now enforceable. The Chargee is entitled to appoint a receiver of the Charged Property. The appointment of the Receiver is on the terms as set out in this Deed. It Is agreed as follows. 1. Definitions and Interpretation 1.1 Definitions The following definitions apply unless the contest requires otherwise. Beneficiaries means the beneficiaries Identified under the Secondary Security Trust Deed. Charged Property means all of the assets charged by the Chargor which Is subject to the Security listed beside each entity in the schedule. Chargee means CBA Corporate Services (NSW) Pty Ltd (ACN ) (in its capacity as trustee of the Secondary Security Trust Deed) incorporated in Australia of Level 7,48 Martin Place, Sydney, NSW, Chargor means Wilhiæott Forests Limited (ACN ) incorporated in Australia of 249 Park Street, South Melbourne, Victoria Receiver means Mark Francis Xavier Mentha and Bryan Webster of RordaMentha, Level 24, 333 Collins Street, Melbourne, Victoria, Australia. Receivership means the role of acting as receiver of the Charged Property in accordance with this Deed. cwhm A v Page 1

5 Secondary Security Trust means the "Wlflmott Security Trust" established by the Secondary Security Trust Deed. Secondary Security Trust Deed means the Secondary Security Trust Deed dated 17 March 2009 between, among others, the Chargee and the Chargor. Security means the charges described In the schedule. 1.2 Interpretation Headings are for convenience only and do not affect interpretation. The following rules of interpretation apply unless the context requires otherwise. (c) (d) (e) The singular includes the plural and conversely. A gender Includes all genders. Where a word or phrase is defined, its other grammatical forms have a corresponding meaning. A reference to a person, corporation, trust, partnership, unincorporated body or other entity Includes any of the foregoing. A reference to a clause or schedule is to a clause of or schedule to this Deed. (f A reference to any party to this Deed or any other agreement or document Includes the party s successors and permitted assigns. (g) (h) A reference to any agreement or document is to that agreement or document as amended, novated, supplemented, varied or replaced from time to time, except to the extent prohibited by this Deed or that other agreement or document. A reference to any legislation or to any provision of any legislation includes any modification or re-enactment of It, any legislative provision substituted for it and all regulations and statutory instruments Issued under it. (1) A reference to writing includes a facsimile transmission and any means of reproducing words in a tangible and permanently visible form. (j) (k) A reference to conduct includes. without limitation, an omission, statement or undertaking, whether or not in writing. A reference to asset Includes any real or persona], present or future, tangible or intangible property or asset (including, without limitation, intellectual property) and any right, interest, revenue or benefit in, under or derived from the property or asset. () A reference to a claim includes any demand, action proceeding, award, judgment or verdict. 1.3 Joint and several The obligations and liabilities of the Receiver under this Deed bind each of them severally and both of them jointly. Each party comprising the Receiver may separately exercise the rights and powers conferred on the Receiver. cwhrn AOl I v Page 2

6 _L Secondary Security Trust means the "Willmott Security Trust" established by the Secondary Security Trust Deed. Secondary Security Trust Deed means the Secondary Security Trust Deed dated 17 March 2009 between, among others, the Chargee and the Chargor. Security means the charges described In the schedule. 1.2 Interpretation Headings are for convenience only and do not affect interpretation. The following rules of Interpretation apply unless the context requires otherwise. (C) (d) (e) (F) (g) (h) (I) (i) (k) (r) The singular Includes the plural and conversely. A gender includes all genders. Where a word orpbrase is defined, its other grammatical forms have a corresponding meaning. A reference to a person, corporation, trust, partnership, unincorporated body or other entity Includes any of the foregoing. A reference to a clause or schedule Is to a clause of or schedule to this Deed. A reference to any party to this Deed or any other agreement or document Includes the party s successors and permitted assigns. A reference to any agreement or document Is to that agreement or document as amended, novated, supplemented, varied or replaced from time to time, except to the extent prohibited by this Deed or that other agreement or document. A reference to any legislation or to any provision of any legislation includes any modification or re-enactment of it, any legislative provision substituted for It and all regulations and statutory instruments issued under it. A reference to writing includes a facsimile transmission and any means of reproducing words in a tangible and permanently visible form. A reference to conduct includes without limitation, an omission ; statement or undertaking, whether or not in writing. A reference to asset includes any real or personal, present or future, tangible or intangible property or asset (Including, without limitation, intellectual property) and any right, interest, revenue or benefit in, under or derived from the property or asset. A reference to a daim Includes any demand, action proceeding, award, judgment or verdict. 1.3 Joint and several The obligations and liabilities of the Receiver under this Deed bind each of them severally and both of them jointly. Each party comprising the Receiver may separately exercise the rights and powers conferred on the Receiver. cmm A v Page 2

7 Aens Arthur Robinson 1.4 ChargØe capacity The Chargee enters Into this Deed in its capacity as trustee of the Secondary Security Trust- The Receiver acknowledges that the Chargee holds the benefit of this Deed for the benefit of the Beneficiaries and- (i) (ii) Is bound to act on the instructions of the Beneficiaries pursuant to the terms of the Secondary Security Trust Deed; and in the absence of any such Instructions from the Beneficiaries or where a force majenre event exists, the Chargee Is not bound to act (c) (d) (e) The Chargee s obligations, duties and responsibilities are limited to those expressly set out in the FacilityAgreement (as defined In the Secondary Security Trust Deed), the Secondary Security Trust Deed and this Deed. Except in the case of any liability, of the Chargee under or in respect of this Deed resulting from the Chargee s own fraud, gross negligence or breach of trust, the recourse for the Receiver to the Chargee in respect of any obligations and liabilities of the Chargee under or in respect of this Deed is limited to the Chargee s ability to be indemnified from the assets of the Secondary Security Trust. If the Receiver does not recover the full amount of any money owing to it arising from non-performance by the Cbargee of any of Its obligations, or non-payment by the Chargee of any of its liabilities, under or in respect of this Deed by enforcing the rights referred to in paragraph (d), the Receiver may not (except in the case of fraud, gross negligence or breach of trust by the Chargee) seek to recover the shortfall by (I) (ii) bringing proceedings against the Chargec in its personal capacity; or applying to have the Chargee wound up. 2. Appointment The Chargee appoints the Receiver as receiver and manager of the Charged Property under the Security. The Receiver accepts that appointment. 3. Powers The Receiver may exercise all powers over or in respect of the Charged Property which are conferred by the Security or by law on a receiver and manager of that Charged Property. The Receiver shall conduct the Receivership in conformity with sound business and commercial practice. cwbrn A V Page 3

8 4. Remuneration The remuneration of the Receiver is fixed at the rates set by KordaMentha from time to time, or otherwise as agreed between the Chargee and the Receiver, for work of the nature to be performed by them, their partners or employees In the course of the Receivership. 5. Termination The Cargee may terminate the Receiver s appointment at any time by notice In writing. Upon that termination the Receiver shall promptly give up possession and control of the Charged Property to or as directed by the Chargee. 6. Notices Any notice given under this Deed; (c) must be in writing addressed to the Intended recipient at the address shown above or any other address notified by the recipient; must be signed by a person duly authorised by the sender; and will be taken to be duly given or made (m the case of delivery in person or by post or fax) when delivered, received or left at the above address, but if delivery or receipt occurs on a day on which business is not generally carried on in the place to which the communication Is sent or is later than 4pm (local time) it will be taken to have been duly given or made at the commencement of business on the next day on which business is generally carried on in the place. 7. Assignment 7.1 Assignment by Receiver The Receiver cannot assign, charge, encumber or otherwise deal with any of his rights or obligations under this Deed, or attempt or purport to do so, without the prior written consent of the Chargee. 7.2 Assignment by Chargee (c) Subject to clause 7.2, the Chargee cannot assign, charge, encumber or otherwise deal with any of Its rights or obligations under this Deed, or attempt or purport to do so, without the prior written consent of the Receiver. The Chargee may assign or otherwise deal with any of Its rights or obligations under this Deed at any time if the Chargee ceases to be the security trustee under the Security Trust Deed. The Receiver agrees that It will enter into a novation deed with any replacement security trustee that Is appointed under the Secondary Security Trust Deed (in a cwtni A v Page 4

9 _L form acceptable to the Chargee and the replacement security trustee). 8. No Waiver No failure to exercise and no delay in exercising any right, power or remedy under this Deed will operate as a waiver. Nor will any single or partial exercise of any right, power or remedy preclude any other or further exercise of that or any other right, power or remedy. 9. Stamp Duty and Costs The Chargee shall bear the costs arising out of the preparation and execution of this Deed and the cost of any stamp duty (Including fines and penalties) chargeable on this Deed. 10. Governing Law and Jurisdiction This Deed Is governed by the laws of Victoria. The parties submit to the non-exclusive jurisdiction of courts exercising jurisdiction there. 11. Counterparts This Deed may be executed in any number of counterparts. All counterparts together will be taken to constitute one instrument. cwhm A v Page 5

10 Schedule Security Deed of charge (Secondary) dated 17 March 2009, ASIC registered no cwbm A v Page 6

11 Executed and delivered as a. deed in Melbourne. Signed Sealed and Delivered for CBA Corporate Services (NSW) Ply Ltd (ACN ) (In its capacity as trustee of the Secondary Security Trust Deed) by its attorney under power of attorney in the presence of:, Witness Signature Attorney Signature Print Name the;-j (zf- A-) Print Name Signed Sealed and Delivered by Mark Francis Xavier Mentha in the presence of: Signature Print Name Signed Sealed and Delivered by Bryan Webster in the presence of: ess Signature / Signature Print Name I&u7 cwtm A v Page 7