Lehman Brothers Holdings Inc v City of Swan & Ors [2009] HCATrans 295 (3 November 2009)

Last Updated: 6 November 2009

[2009] HCATrans 295

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S285 of 2009

B e t w e e n -

LEHMAN BROTHERS HOLDINGS INC

Applicant

and

CITY OF SWAN

First Respondent

PARKES SHIRE COUNCIL

Second Respondent

WINGECARRIBEE SHIRE COUNCIL

Third Respondent

LEHMAN BROTHERS AUSTRALIA LIMITED (SUBJECT TO DEED OF COMPANY ARRANGEMENT)

Fourth Respondent

NEIL SINGLETON

Fifth Respondent

STEPHEN PARBERY

Sixth Respondent

LEHMAN BROTHERS ASIA HOLDINGS LIMITED (IN LIQUIDATION)

Seventh Respondent

Office of the Registry
Sydney No S286 of 2009

B e t w e e n -

LEHMAN BROTHERS ASIA HOLDINGS LIMITED (IN LIQUIDATION)

Applicant

and

CITY OF SWAN

First Respondent

PARKES SHIRE COUNCIL

Second Respondent

WINGECARRIBEE SHIRE COUNCIL

Third Respondent

LEHMAN BROTHERS AUSTRALIA LIMITED (SUBJECT TO DEED OF COMPANY ARRANGEMENT)

Fourth Respondent

NEIL SINGLETON

Fifth Respondent

STEPHEN PARBERY

Sixth Respondent

LEHMAN BROTHERS HOLDINGS INC

Seventh Respondent

Directions hearing

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 3 NOVEMBER 2009, AT 3.47 PM

Copyright in the High Court of Australia

__________________

MR T.F. BATHURST, QC: May it please the Court, in matter S285 of 2009 I appear for the applicant and in matter S286 of 2009 I appear for the seventh respondent with my learned friend, MR A.J. PAYNE. (instructed by Jones Day)

MR D.L. WILLIAMS, SC: May it please the Court, I appear for the applicant in matter S286 of 2009, and in matter S285 of 2009 I appear for the seventh respondent. (instructed by DibbsBarker Lawyers)

HIS HONOUR: That is incorporated in Hong Kong, is it?

MR WILLIAMS: That is right.

MR A.P. COLEMAN: May it please the Court, I appear for the first, second and third respondents in both matters. (instructed by Piper Alderman Lawyers)

MR B.A.J. COLES, QC: If your Honour pleases, I appear with MR P. KULEVSKI for the fourth, fifth and sixth respondents in both matters. (instructed by Clayton Utz Lawyers)

HIS HONOUR: The fifth and sixth respondents are – what is their present status?

MR COLES: They are presently the liquidators. They were in the proceedings the deed administrators.

HIS HONOUR: I see. Mr Bathurst, your interests are coincident, are they, with Mr Williams’ interests?

MR BATHURST: Substantially, although our application is slightly narrower than his.

HIS HONOUR: Your client is incorporated in the United States?

MR BATHURST: The United States, yes.

HIS HONOUR: In New York, is it?

MR BATHURST: In New York, yes, subject to a Chapter 11 administration.

HIS HONOUR: There is a Chapter 11 administration, all right. Your client was not a party to the deed, was it?

MR BATHURST: My client was not a party to the deed, no.

HIS HONOUR: But it was given leave to intervene.

MR BATHURST: It was joined as a party by consent.

HIS HONOUR: Joined as a party by consent, yes. Thank you. Now, there has been a decision by Justice Finkelstein in Opes Prime. Did that go to the Full Court?

MR BATHURST: Opes Prime went to the Full Court. Justice Finkelstein’s decision was upheld. Your Honours will find mention of that decision in the judgment of Justice Rares in the Full Court in this case.

HIS HONOUR: There was no leave application in Opes Prime.

MR BATHURST: There was no leave application in Opes Prime, no. Opes Prime of course was a scheme of arrangement case.

HIS HONOUR: Yes. Very well.

MR BATHURST: The reference to Opes Prime in the Full Court was Fowler v Lindholm [2009] FCAFC 125.

HIS HONOUR: At first instance it is [2009] FCA 813; 258 ALR 362.

MR BATHURST: That is so, yes.

HIS HONOUR: Now, at the hearing of the special leave application, the applicants are not entirely at one, are they?

MR BATHURST: Only to this extent. We put the propositions in support of the ultimate determination a little more narrowly I think than was put by my learned friend, Mr Williams, or my learned friend, Mr Coles, below. We say the word concerns – there has to be some connection with the third party claims released and the creditor’s claims. I think – certainly below and I think here, my learned friend puts it slightly wider than that.

HIS HONOUR: All right. I am just trying to work out the dynamics of the special leave application. So it looks as if each of you would seek, as it were, an independent time allocation.

MR BATHURST: I think so, yes.

HIS HONOUR: All right. Should there be two application books or just one application book?

MR BATHURST: No, one application book. The parties have agreed on some direction, subject to your Honour. If I could hand up short minutes in each case.

HIS HONOUR: Thank you. The application book had better include the deed, I suppose.

MR BATHURST: Yes.

HIS HONOUR: I was going to ask you how bulky is the deed?

MR BATHURST: Twenty pages or thereabouts. It is not substantial. The issue only concerns three clauses which can be read fairly discreetly in any event. I should raise one other issue which arises out of the form of the application by each of the parties. What happened was the Full Court answered certain questions, then remitted it back to Justice Rares - - -

HIS HONOUR: And he made a liquidation order.

MR BATHURST: He made the liquidation order. Because of section 33 of the Federal Court Act, no direct application lies in respect of that order to this Court. That unfortunately was overlooked at the time it came to draw the leave applications. We do not propose to amend the leave applications but the notice of appeal will simply reflect that all that can be deal with, if this Court was minded to give leave, was the questions and we would be seeking an order that if we were successful the matter would be sent back to be dealt with - - -

HIS HONOUR: If you were successful on the questions, what would then happen back in the Federal Court - - -

MR BATHURST: What would then happen back in the Federal Court, as we presently envisage it, is that we would seek an order that the deed be valid and that an order under I think it is section 382 of the Corporations Act that the liquidation be stayed.

HIS HONOUR: Be stayed.

MR BATHURST: I am so sorry, I said 382, section 482.

HIS HONOUR: Thank you. Yes, thank you.

MR BATHURST: The only other thing I should indicate about those short minutes is that Mr Coles’ clients wish to put on their submissions at the same time as the two applicants put their submissions on.

HIS HONOUR: Yes, I see. Just give me a minute, Mr Bathurst. These short minutes are agreed, are they?

MR BATHURST: They are, your Honour.

HIS HONOUR: Well, there should be no difficulty then in placing this in the special leave list for Sydney on 11 December.

MR BATHURST: Not as we perceive it, your Honour, no.

HIS HONOUR: In each application I make orders in accordance with the short minutes which I have initialled, dated and placed with the papers. I have not put any special references to the inclusion of the deed, but you have heard what was said. Very well, is there anything else?

MR BATHURST: No, your Honour.

HIS HONOUR: I will now adjourn.

AT 3.56 PM THE MATTERS WERE ADJOURNED