header-mask
Insights / June 11th, 2024

Schemes of Arrangement & Deeds of Company Arrangement

INTRODUCTION

Creditors' Schemes originated in the 18th century as an alternative to liquidation. Although they have undergone legislative reform, it was initially thought that creditors Schemes were complex, cumbersome, slow, costly and unlikely to satisfy the needs of a private company experiencing financial difficulties. Subsequently in 1993, the voluntary administration procedure was introduced, the genesis being to provide a cheaper, faster and more flexible alternative.

An Australian Creditors’ Scheme of Arrangement can bind all creditors, for example, foreign bondholders, even where the contracts that give rise to their debts or their status as creditors is governed by the law in other jurisdictions.

Schemes of Arrangement are regulated by Part 5.1 of the Corporations Act 2001 (Cth) (“the Act”), Schedule 8 of the Corporations Regulations (“the Regulations”) and regulation 5.1.01. In this context, ASIC's role is to monitor the proposed Scheme as set out in section 411(17) of the  Act. ASIC's concept of what a Scheme must contain is set out in section 411 of the  Act. It applies both to Creditors' Schemes and Members' Schemes. It should also be noted that ASIC have issued a revised Regulatory Guide 60 on Schemes of Arrangement.

WHAT IS A CREDITORS' SCHEME OF ARRANGEMENT?

Unlike a Members' Scheme, a Creditors' Scheme is a compromise or arrangement by any of the corporation's creditors or any class of those creditors which modifies those creditors' rights.

A creditors’ scheme is regulated by Part 5.1 of the Corporations' Act. Whilst 'creditor' is not defined under the  Act, section 533 of the Act provides that it encapsulates debts provable on a winding up consisting of 'all debts payable by and all claims against the company (present or future, certain or contingent) ascertained or giving rise to a claim in damages’.

A scheme on its face has a very wide scope and application, provided it does not offend any operational laws. It is normally used to pool assets over related entities or settle or provide for a moratorium period in respect of creditors' claims against the company or other parties. The genesis of a scheme is normally to seek a better outcome for the company and its creditors than if a scheme was not entered.

Whilst schemes have been used frequently in relation to takeover situations, they have not been frequently used in an insolvency scenario primarily due to the relatively high cost compared with alternatives, such as a Deed of Company Arrangement (“DOCA”) and creditors' trusts (which sometimes form part of a DOCA).

Section 411 of the Act attempts to provide a flexible mechanism to facilitate compromises, arrangements between insolvent companies and their creditors as an alternative to liquidation.

Common features of the arrangement are as follows:

  • moratorium preventing enforcement by the company's creditors;

  • compromise whereby the creditors agree to accept less than full payment of debts; and

  • an assignment whereby debts are transferred to a third party or capitalisation of debt whereby creditors agree to exchange their debt for equity in the company.

HOW DO I IMPLEMENT A SCHEME?

The Company proposing the Scheme must make an application to the court for approval to convene a creditors' meeting to vote on whether to approve the Scheme. At that time, documentation that is relevant to the Scheme is lodged with the court, including the proposed explanatory statement of the Scheme of Arrangement. Scheme documentation must also be lodged with ASIC.

Normally there would then follow a review and consultation process with ASIC. The company must allow ASIC sufficient time to consider the scheme pursuant to section 411(2) of the Act.

In general terms, experience shows that there is often less chance of a scheme being approved than a DOCA or creditors' trust due to the following facts:

  • the general body of creditors needs to be split into classes each having similar rights in the company; and

  • 75 percent by value and 50 percent by number is required from each class to vote in support of the scheme, whereas in a DOCA or Creditors' Trust only 50 percent by value and 50 percent by number from the general creditors' pool is required.

Even in situations where the creditors vote in support of the scheme, the court is not obliged to consent to the scheme. In considering whether to approve a scheme, creditors normally have regard to the time and the value of any return. Whether it will succeed often will be determined by how the scheme ranks comparatively with any alternative. On the other hand, the court will have regard to the interests of the company and its creditors both generally and by class and to a limited extent, the public interest in determining whether to approve a scheme.

WHAT IS ANEXAMPLE OF A SCHEME OF ARRANGEMENT?

An Australian Position: Opes Prime Group Limited

The relevant facts were as follows:

  • Opes Prime Group Limited (“Opes”) was engaged principally in providing stockbroking advice and services to institutional and private clients.

  • In March 2008, Opes entered into voluntary administration. Receivers were appointed by financiers including the ANZ bank and Merrill Lynch.

  • Initially, the creditors of Opes resolved to put the company in liquidation in May 2008. The liquidators of Opes stated that they had a potential claim against ANZ relating to a loan agreement that was entered into with Opes shortly before the appointment of a voluntary administrator.

  • The loan agreement's germane terms were as follows:

    • ANZ loaned an amount of $95 million to Opes;

    • ANZ retained the amount of $95 million in order to meet any margin calls in respect of Opes; and

    • ANZ obtained fixed and floating charges over all of the assets of Opes and a number of its subsidiaries which were subsequently registered with ASIC. ANZ obtained a deed of cross- guarantee and indemnity from various entities in the Opes group.

  • The liquidators stated that Opes had a claim against ANZ on the following basis:

    • the directors had breached their statutory fiduciary duties to the company and entered into a loan agreement;

    • ANZ was involved in that breach (Bell claim);

    • ANZ's conduct was a breach of the Trade Practices Act 1974 (Cth) and was unconscionable;

    • the loan was an unfair loan and an uncommercial transaction pursuant to sections 588FB and 588FD of the Act; and

    • the floating charge against the Opes entities was void except to the extent further money was provided under the loan agreement.

  • Separately, former clients of Opes initiated proceedings against ANZ on the following basis:

    • As a result of Opes' misrepresentations, they believed they had retained beneficial ownership of the shares, whereas in fact they were transferred legally to Opes under a margin lending agreement which was false;

    • ANZ had actual or constructive knowledge that Opes had asserted to its clients that they retained beneficial interest in the shares; and

    • Following mediation, ANZ, Merrill Lynch and the administrators reached a settlement whereby $253 million should be implemented by way of a scheme of arrangement. Merrill lynch and ANZ proposed that they would only settle the litigation against them by Opes on the basis that all other related claims by creditors of Opes would be barred from bringing proceedings.

  • The scheme of arrangement provided as follows:

    • give effect to the settlement;

    • pool the assets of the entities and the Opes Group; and

    • bar any creditors of Opes from proceedings with any claims against ANZ and Merrill Lynch,

      (“Scheme”).

  • The scheme meetings were subsequently held, and the creditors' pool assets were split into the two following classes:

    • client creditors of Opes who had participated in securities lending; and

    • trade and other creditors.

The scheme was approved by the requisite majority of creditors in each class and was approved by the Court in August 2009.

What was the Appeal?

Finkelstein J's approval of the Scheme in Re Opes Prime Stockbroking Ltd (No 2) (2009) 258 ALR 362 was appealed to the Full Federal Court on the basis that a scheme under section 411 of the Act cannot affect the interest and claims of creditors against third parties. Put simply the question was whether or not the corporate re-organisation enabled a scheme to provide third party releases. In a joint decision Emmett, Gordon and Jagot JJ upheld his Honor's decision.1

What did the Full court say?

“… A Scheme Of Arrangement made between a company and its creditors under s 411 binds only the company and its creditors. Nevertheless, there is no reason why a bargain might not be struck between a company and creditors whereby the creditors are bound to enter into an Arrangement with third parties. So long as there is some element of give and take, such that the creditors receive something in return for the benefit conferred on the third party, there is no reason in principle why that term could not be part of a Scheme Of Arrangement, as contemplated by s 411.”2

It was further stated that the provisions of section 411 of the act tended to provide a flexible mechanism to facilitate compromises and arrangements and so long as there was an adequate nexus between a release or an indemnity on the one hand and the relationship between the creditor and the company on the other hand, there is no reason in principle why a scheme could not incorporate such a term.3

WHAT ARE THE DEEDS OF COMPANY ARRANGEMENT?

Australian Legislation

Part 5.3A of the Act is headed 'Administration of a company's affairs with a view to executing a deed of company arrangement'.

Section 435A of the Act provides as follows:

The object of this Part is to provide for the business, property and affairs of an insolvent company to be administered in a way that:

(a) maximises the chances of the company, or as much as possible of its business, continuing in existence; or(b) if it is not possible for the company or its business to continue in existence - results in a better return for the company's creditors and members than would result from an immediate winding up of the company.

On what basis can a deed of company arrangement be terminated?

A DOCA can be terminated by the court upon application of an individual creditor or a group of creditors pursuant to sections 445D and 600A of the Act, which provide as follows.

Section 445D(1) [Grounds for termination by court]

The Court may make an order terminating a deed of company arrangement if satisfied that:

  • information about the company’s business, property, affairs or financial affairs was false or misleading and such information was material to creditors deciding whether to enter into the deed;

  • material information was not provided to the creditors when deciding whether to enter into the deed;

  • there has been a material contravention of the deed by a person bound by the deed; or

  • effect cannot be given to the deed without injustice or undue delay; or

  • the deed or a provision of it is, an act or omission done or made under the deed was, or an act or omission proposed to be so done or made would be:

    • oppressive or unfairly prejudicial to, or unfairly discriminatory against, one or more such creditors; or

    • contrary to the interests of the creditors of the company as a whole; or

  • the deed should be terminated for some other reason.

Section 445D (2) [Who may apply for order]

An order may be made on the application of:

  • a creditor of the company; or

  • the company; or

  • ASIC; or

  • any other interested person.

Example: Lehman's case

The germane facts

  • The City of Swan and Parkes and Wingecarribee Shires invested funds in special purpose companies controlled by Lehman Australia.

  • The investment arrangements were known as CDOs or Collateralised Debt Obligation Instruments.

  • The Plaintiff’s wished to make claims against Lehman Australia and against Lehman Holdings and Lehman Asia.

  • The Deed of Company Arrangement was passed by both the majority in number (61 to 57) and in value (A$256.7 million to A$70.2 million) of creditors who attended the meeting (“Lehman Deed”).

  • The Plaintiffs brought proceedings in the Federal Court after the passing of the resolution but before the deed's execution.

What did the Lehman Deed Contain?

  • any investor who asserted a claim against Lehman Australia retained their rights against the relevant special purpose company, however compromised their claims against Lehman Australia and also released any other Lehman entities;

  • Lehman entities were defined as Lehman Holdings and any company corporate, not incorporated in Australia, that was partly or wholly owned, directly or indirectly, by Lehman Holdings at, or in the six months before 15 September 2008; and

  • provided a moratorium in favour of the Lehman entities.

What was the Full Federal Court decision?

  • On appeal, the Full Federal Court considered the Opes Prime case. Rares J was critical of the reasoning and suggested past authority on the Act itself had been misconstrued and that inadequate attention had been paid to the basic principles of statutory construction which requires the interpretation of legislative provisions in a way that will not affect individuals' proprietary or claims.

  • It was also noted by Stone J that Part 5.3A of the Act provides for important procedural steps to be taken by the Court in terms of supervision and accordingly greater latitude would be given to Schemes of Arrangement in relation to compromise arrangements as opposed to deeds of company arrangement.

Rares J also observed in relation to Opes:

  • It is not necessary to decide whether Finkelstein J of the Full Court of Appeal in Opes correctly construed s 411. These reasons should not be seen as endorsing the reasoning in either decision ...

    ... the fundamental issue here is whether the property of creditors separate and apart from the rights to sue or prove against the company can be appropriated by a majority of other creditors for the benefit of them or third parties. In my opinion, Part 5.3A does not contain either express words or unmistakable clarity of language to lead to such draconian interference with the proprietary rights of creditors against third parties or other creditors of company administrations. An undemanding test of a mere nexus between the proposed provision in a deed of company arrangement and the payment of Lehman Australia's creditors, yields no legal criterion to justify a destruction of the plaintiff's rights to sue insurers or other Lehman entities for their independent legal obligations.

  • The Full Federal Court held that the impugned provisions were invalid. Rares J subsequently made a declaration the deed was void and that Lehman Australia be wound up by the court.

What was the High Court majority decision?

The High Court considered the provisions of the Act which must be included in a DOCA.4

Relevantly section 444A(4) of the Act provides:

  • a deed must specify the nature and duration of any moratorium period which the deed provides; and

  • to what extent the company is to be released from its debt.

Section 444A(5) of the Act provides that the Deed is taken to include certain prescribed provisions 'except so far as (the deed) provides otherwise'.

WHAT PROVISIONS MUST A DEED CONTAIN?

The relevant prescribed provisions are as follows:

5 Discharge of debts

The creditors must accept their entitlements under this deed in full satisfaction and complete discharge of all debts or claims which they have or claim to have against the company as at the day when the administration began and each of them will, if called upon to do so, execute and deliver to the company such forms of release of any such claim as the administrator requires.

6 Claims extinguished

If the administrator has paid to the creditors their full entitlements under this deed, all debts or claims, present or future, actual or contingent, due or which may become due by the company as a result of anything done or omitted by or on behalf of the company before the day when the administration began and each claim against the company as a result of anything done or omitted by or on behalf of the company before the day when the administration began is extinguished.

The majority stated that the subject matter, scope and purpose of Part 5.3A of the Act yielded the inference that the subject matter of the compromise arrangement must be debts or claims against the Company.

The principal issue in the appeal was not what debts or claims are compromised but to the terms and conditions on which they may be compromised, ie whether they be compromised on terms that claims against a person other than the subject company are released.

The court recognised that the Act was silent about what price can be extracted from creditors with the agreement of the majority (by number and value) for the compromise of their claims.

The majority stated that the determinative question in the appeal was the meaning of the provision of s 444D(1 ) which provides as follows:

Effect of deed on creditors

  • A deed of company arrangement binds all creditors of the company, so far as concerns claims arising on or before the day specified in the deed under paragraph 444A(4)(i).

The deed relevantly provided first for a moratorium and then for a release in respect of the Lehman entities. The majority held as a matter of statutory interpretation the words 'so far as concerns' in section 444D(1) of the Corporations Act did not include persons other than the subject company.

The court also noted that pursuant to section 444D(1) creditors cannot be bound to give up a claim against a person other than the subject company.

The position in other jurisdictions

Interestingly, various jurisdictions have come to different conflicting positions. English courts have sanctioned third party releases of insurers in circumstances where there was a release of the indemnified insurer.5

In Noble Group Ltd, Re [2018] EWHC 3092 (Ch) Snowden J affirmed that the English law on schemes clearly contemplated provision for releases of third parties where those releases (including as pre-conditions to involvement) were “necessary in order to give effect to the arrangement between the company and the scheme creditors”, that such releases were not limited to guarantors and claims closely related to scheme claims.6 Whilst Snowden J suggested that claims against “persons involved in the preparation, negotiation or implementation of a scheme and their legal advisers would also be within the scope” of the provisions, he cautioned against seeking to extend a scheme to more “tangential” claims, for example against a financial adviser who may have provided advice to enter into an investment in the first place “ aimed at recouping the difference between the original amount paid for the investment and the consideration provided under the scheme.”7

(1)  English Position

Lehman Brothers International (Europe) (In Administration) (No. 2) 0] [2010] BCC 272.

Lehman Brothers International (“LBIE”) sought protection of an administration order so that a better result would be achieved for creditors than would be likely if LBIE was wound up. The administrators suggested a client asset Scheme of Arrangement in the hope of expediting the process of the return of trust property.

Hundreds of investment funds traded through LBIE. LBIE held substantial assets as trustee on behalf of those clients. To identify the assets of each client so that they may have had returned the property to them posed significant practical difficulties for the administrator.

In an attempt to resolve those difficulties a Scheme was proposed with a new dimension, ie. it was proposed that it would compromise the proprietary rights of beneficial owners of the trust property. The principal difficulty was that the creditor's Scheme compromised the rights of creditors however beneficial owners of the trust property are not generally regarded as creditors of the trustee.

It was anticipated that the use of a Scheme of arrangement would provide finality in terms of potentially competing claims and largely expedite the process. There was also a report received from the English Financial Services Authority who agreed that it would lead to substantial savings of time and money.

One of the principal issues summarised by Lord Neuberger of Abbotsbury MR, was that the issue thrown up by this case is the capacity of s 895 of the Companies Act 2006, which is 'one of principle'.

Can a Scheme of arrangement be approved by the court under section 895 of the Companies Act 2006 if it varies proprietary rights? I prefer to express it rather more specifically, if more wordily: can a Scheme be approved under s 895 if it extends to property which is held on trust by the company concerned (a) generally; or alternatively (b) where the persons for whose benefit the property is held on trust are also creditors of the company?

In the LBIE case, the proposed Scheme of Arrangement was intended to release all of a Scheme creditor's proprietary claims for the return of trust property against the company, in exchange for the return of part of the assets as allocated under the Scheme.

Administrators sought to base their inventive use of the Scheme on three grounds:

  1. the broad interpretation of 'creditors' in section 895 to include a beneficiary under a trust;

  2. a wider interpretation to the expression 'arrangements'; and

  3. precedents according to which Schemes could affect proprietary rights, particularly creditors' rights, in respect of the security they enjoy over the company's assets.

Likewise, whilst acknowledging previous broad interpretations to the term 'arrangement', the court found it less credible to apply such an unrestricted connotation to the word in the phrase 'an arrangement between a company and its creditors'. As remarked, the administrators' proposal that as 895 Scheme of Arrangement should extend to any property or interest of a creditor of the company, if implemented, would have resulted in fundamental variation of the basic statutory criteria or an arrangement -it must be made with creditors in their capacity as creditors and concerning their position as creditors. This would seriously interfere with proprietary rights over assets held by a company as a trustee, which should not be affected by the company's insolvency. As summarised by Patten LJ:

It seems to me that an arrangement between a company and its creditors must mean an arrangement which deals with their rights inter seas debtor and creditor ... it does exclude from the jurisdiction rights of creditors over their own property which is held by the company for t heir benefit as opposed to their rights in the company's own property held by them merely as security.

In order to refute the notion that Schemes might be used to vary proprietary rights, the courts repeatedly emphasised the sacredness of the trust mechanism as a safeguard for clients' assets in an insolvency process. Extending the application of a Scheme to trust assets as proposed by the administrators would pragmatically undermine this well-established commercial sense and logic, and Parliament never 'intended to deal with it in that manner'. Based on the above three grounds, a firm rejection was handed down regarding the inclusion of proprietary rights, on the basis that such rights are not ones in respect of debts due to creditors from the company.

Patten LJ also stated that in order to fulfil the first statutory requirement of adopting a Scheme of arrangement, ie. that the Scheme is to be proposed between a company and its creditors, 'it is obvious that someone with a purely proprietary claim against the company is not its creditor in any conventional sense of that word. As a matter of ordinary language, a creditor is someone to whom money is owed'.

The Court of Appeal observed (in LBIE) that the Full Federal Court's decision in Opes was consistent with English authority and in particular the decision of David Richards J in Re T&N Ltd (No. 3) [2005] EWHC 2870 CH and agreed with the principle established in those cases.

Patten J held:

It seems to me that an arrangement between a company and its creditors must be an arrangement which deals with their rights inter seas debtor and creditor. The formulation does not prevent inclusion in the Scheme of the release of contractual rights or rights of action against related third parties necessary in order to give effect to the arrangement proposed for the disposition of the debts and liabilities of the company to its own creditors. However, it did exclude from the jurisdiction rights of creditors over their own property which was held by the company for their benefit as opposed to their rights in the company's own property held by them merely as security. The court did not have jurisdiction to sanction the compromise or removal of rights which the creditor did not hold as a creditor. That would be inconsistent with the expressed purpose of the legislation which was to allow the company to rearrange its contractual or similar liabilities of those who qualified as its creditors. A person was a creditor of a company only in respect of debts or similar liabilities due to him from the company. A proprietary claim to trust property was not a claim in respect of a debt or liability of the company.

The Court of Appeal also observed that the Full Federal Court judgment in Lehman's distinguished between section 444D and section 411 of the Act on the grounds that the DOCA procedure is unsupervised and therefore more restricted in what it is intended to achieve. It also took note that the Federal Court in Lehman was careful not to endorse the correctness of the decision in Opes and 'even goes so far as to suggest that it is inconsistent with earlier authority'.

The administrators subsequently decided to pursue an alternative arrangement in the form of a Claim Resolution Agreement by way of a bilateral contract with each client. The structure is similar in terms to asset distribution except it only binds those clients who agreed to it. The intrinsic problem is that those who opt in are exposed to claims from those who do not opt in. Those who did not opt in ironically can if they are able to identify their property pursue the party receiving the property. However, there was some protection in that a threshold was put in for 90 percent by value acceptance as a precondition to each agreement thereby reducing the potential number of claims.

(2)  US Position

In the US, the Federal Circuits Court of Appeal did not approve third party releases. In Re Continental Airlines, 203 F.3d 203 (3d Cir, 2000), claims against known debtors were enjoined and were only permitted where claims were channelled to a specific fund to provide for creditors with claims against that non-debtor.

The United States position will be clarified in the case of Harrington v. Purdue Pharma L.P. which was argued before the Supreme Court of the United States on 4 December 2023. In that appeal, which is likely to be determined by the end of June, the Court is required to determine whether a Bankruptcy Court is entitled to approve a plan which involves releases being granted to nondebtor third parties without the claimants’ consent.

(3)  Canadian Position

The Canadian Scheme provisions in the Companies' Creditors Arrangement Act (“CCAA”), which are very similar to the English Scheme legislation, have also been interpreted to permit releases of rights against third parties.

In Re Metcalfe and Mansfield Alternative Investments II Corp (2008) ONCA 587, the Ontario Court of Appeal found T&.N persuasive and confirmed that a CCAA plan of compromise and arrangement could provide for releases to third parties who were themselves solvent and not creditors of the debtor company, provided there was a reasonable connection between the third party claim being compromised in the plan and the restructuring achieved by the plan to warrant an inclusion of the third party release. The Court stated as follows:

The CCAA is skeletal in nature. It does not contain a comprehensive code that lays out all that is permitted or barred. Judges must therefore play a role in fleshing out the details of the statutory scheme. The scope of the Act and the powers of the court under it are not limitless. It is beyond controversy, however, that the CCAA is remedial legislation to be liberally construed in accordance with the modern purposive approach to statutory interpretation. It is designed to be a flexible instrument and it is that very flexibility which give the Act its efficacy ... The remedial purpose of the CCAA - as its title affirms - is to facilitate compromises or arrangements between an insolvent debtor company and its creditors ...

[T]he court must, when considering applications brought under this Act, have regard not only to the individuals and organisations directly affected by the application, but also to the wider public interest. While there may be little practical distinction between 'compromise' and 'arrangement ' in many respects, the two are not necessarily the same. 'Arrangement' is broader than 'compromise' and would appear to include any Scheme for reorganising the affairs of the debtor.

The CCAA is a sketch, an outline, a supporting framework for the resolution of corporate insolvencies in the public interest. Parliament wisely avoided attempting to anticipate the myriad of business deals that could evolve from the fertile and creative minds of negotiators restructuring their financial affairs. It left the shape and details of those deals to be worked out within the framework of the comprehensive and flexible concepts of a 'compromise' and 'agreement'.

Accordingly, the posit ion is that creditors Scheme can be used to compromise creditors rights if they have claims against third parties provided that:

  • there is quid pro quo for such releases; and

  • there is a sufficient nexus between the rights compromised and the relationship between the company and the creditors.

Key takeaways:

  • On one view a compulsory variation of the rights between the company and some of its creditors pursuant to a Scheme involves a discharge of variation of those contractual rights in accordance with the law of the forum which, because of association with solvency will be effective notwithstanding that the contracts or rights are governed by foreign law.

  • It is self-evident that Schemes of Arrangement have been very useful in dealing with speedy resolution to complex disputes for example insurance corporate collapses. The line of authorities from  multiple jurisdictions would appear to suggest that creditor Schemes can also offer a final solution to avoid costly and protracted litigation that often arises following significant insolvency.

  • The decision in Lehman's has demonstrated that DOCAs are not as flexible as was originally envisaged. In particular, the High Court's comments that s 444D of the Act does not authorise a DOCA to release or compromises creditors’ claims against third parties will inevitably lead to Schemes of Arrangement being used in complex insolvencies.

  • Whilst there has been an increased use of Schemes in large complex matters, it is clear that the vast majority of corporate restructuring will be carried out by way of DOCAs. It is  equally clear, however, that there has been a significant rise in the use of Schemes in common law jurisdictions to ensure certainty in large complex commercial transactions involving multiple parties, advisers and brokers and to avoid some of those multiple parties taking proceedings after corporate restructures pursuant to a DOCA to improve their position.

For further information regarding this topic please get in touch with Gerard Breen or Peter Leech of our Insolvency team.


Reference:

1 Fowler v Lindholm; Re Opes Prime (2009) 259 ALR 298 (Emmett, Gordon and Jagot JJ).

2 Ibid [69].

3 Ibid [73].

4 Lehman Brothers Asia Holdings Limited (in liq) v City of Swan & Ors; Lehman Brothers Holdings Inc v City of Swan & Ors [2010] HCA 11.

5 See Re T&N Limited [2006] EWHC 1447 (Ch).

6 [24]-[25].

7 [25]-[26].


This publication has been prepared for general guidance on matters of interest only and does not constitute professional legal advice.  You should not act upon the information contained in this publication without obtaining specific professional legal advice.  No representation or warranty (express or implied) is given as to the accuracy or completeness of the information contained in this publication and to the extent permitted by law, Cowell Clarke does not accept or assume any liability, responsibility or duty of care for any consequences of you or anyone else acting or refraining to act in relation on the information contained in this publication or for any decision based on it.

Related Expertise