Dickerson, in the matter of McWilliam's Wines Group Ltd (subject to Deed of Company Arrangement) (No 5)

• Jurisdiction: Australia Federal only
• Judgment Date: 20 April 2021
• Neutral Citation: [2021] FCA 431
• Court: Federal Court
• Date: 20 April 2021

FEDERAL COURT OF AUSTRALIA

Dickerson, in the matter of McWilliam’s Wines Group Ltd (subject to Deed of Company Arrangement) (No 5) [2021] FCA 431

File number:	NSD 92 of 2020
Judgment of:	FARRELL J
Date of judgment:	20 April 2021
Date of publication of reasons:	27 April 2021
Catchwords:	CORPORATIONS – application for orders under s 447A of the Corporations Act 2001 (Cth) and s 90-15 of the Insolvency Practice Schedule (Corporations) to allow company subject to deed of company arrangement to enter into alternative deed of company arrangement without leading to a deemed creditors’ voluntary winding up – application granted ; CORPORATIONS – application for directions under s 90-15 of the Insolvency Practice Schedule (Corporations) as to whether administrators are justified in proposing an alternative deed of company arrangement to the creditors in accordance with the framework proposed by the applicants – application granted
Legislation:	Corporations Act 2001 (Cth) ss 435A, 446AA, 447A Corporations Act 2001 (Cth) Sch 2, Insolvency Practice Schedule (Corporations) ss 1-1, 90-15 Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG Federal Court Rules 2011 (Cth) r 39.05
Cases cited:	Australasian Memory Pty Limited v Brien [2000] HCA 30; (2000) 200 CLR 270 BE Australia WD Pty Ltd (subject to a deed of company arrangement) v Sutton [2011] NSWCA 414; (2011) 82 NSWLR 336 Calabretta v Redpen Developments Pty Ltd (in liq) [2010] FCA 81; (2010) 183 FCR 47 Honest Remark Pty Limited v Allstate Explorations NL [2006] NSWSC 735; (2006) 201 FLR 456 Deputy Commissioner of Taxation, in the matter of ACN 154 520 199 Pty Ltd (in liq) v ACN 154 520 199 Pty Ltd (in liq) (No 2) [2017] FCA 755 Deputy Commission of Taxation, in the matter of Italian Prestige Jewellery Pty Limited (in liq) ACN 116 031 022 v Italian Prestige Jewellery Pty Limited [2018] FCA 983 Dickerson (Administrator), in the matter of McWilliam’s Wines Group Ltd (Administrators Appointed) [2020] FCA 57 Dickerson, in the matter of McWilliam’s Wines Group Ltd (Administrators Appointed) (No 2) [2020] FCA 417 Dickerson, in the matter of McWilliam’s Wines Group Ltd (subject to Deed of Company Arrangement) (No 3) [2020] FCA 1564 Dickerson, in the matter of McWilliam’s Wines Group Ltd (subject to Deed of Company Arrangement) (No 4) [2021] FCA 139 Gandel Metals Pty Ltd, in the matter of Centennial Mining Limited (Subject to Deed of Company Arrangement) v Centennial Mining Limited (Subject to Deed of Company Arrangement) [2020] FCA 250 Gibbons v LibertyOne [2002] NSWSC 274; (2002) 41 ACSR 442 Hill, in the matter of Autocare Services Pty Ltd (administrators appointed) [2021] FCA 167 In the matter of Mediacloud Pty Ltd [2021] NSWSC 357 Lord, In the matter of WPG Resources Ltd (Receivers and Managers Appointed) (in liquidation) [2019] FCA 1173 Motorola Solutions, Inc. v Hytera Communications Corporation Ltd (No 2) [2018] FCA 17 Re Edward Gem Pty Ltd [2005] FCA 74; (2005) 141 FCR 408 Vickers, in the matter of J M Kelly Builders Pty Ltd (in liquidation) (No 2) [2019] FCA 1789 Wainter Pty Ltd, in the matter of New Tel Limited (in liq) [2004] FCA 1154; (2004) 210 ALR 270 Willi Kruger re Kruger Engineering Pty Ltd [2006] NSWSC 1063.
Division:	General Division
Registry:	New South Wales
National Practice Area:	Commercial and Corporations
Sub-area:	Corporations and Corporate Insolvency
Number of paragraphs:	63
Dates of hearing:	14, 16, 20 April 2021
Counsel for the Applicants:	Mr D Krochmalik
Solicitor for the Applicants:	HWL Ebsworth Lawyers
Counsel for Calabria Family Wines Pty Ltd	Mr M Dawson with Mr T Bateman (20 April 2021), Mr T Bateman (14 and 16 April 2021)
Solicitor for Calabria Family Wines Pty Ltd	Stanton & Stanton
Solicitor for De Bortoli Wines Pty Ltd	Ms B Ibanez of Hamilton Locke
Solicitor for Hunterfields Pty Ltd and Belford Land Corporation Pty Ltd as trustee for the Belford Property No. 2 Trust	Mr N Heinecke of HWL Ebsworth

ORDERS

NSD 92 of 2020

GAYLE DICKERSON, TIM MABLESON AND RYAN EAGLE IN THEIR CAPACITY AS JOINT AND SEVERAL DEED ADMINISTRATORS OF MCWILLIAM'S WINES GROUP LTD (SUBJECT TO A DEED OF COMPANY ARRANGEMENT) ACN 000 024 108 AND MOUNT PLEASANT WINES PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) ACN 000 024 813 First Applicants ; MCWILLIAM'S WINES GROUP LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) ACN 000 024 108 Second Applicant ; MOUNT PLEASANT WINES PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) ACN 000 024 813 Third Applicant

order made by:	FARRELL J
DATE OF ORDER:	20 April 2021

THE COURT ORDERS THAT THE ORDERS MADE ON 16 APRIL 2021 BE VARIED TO READ AS FOLLOWS:

1. Pursuant to ss 37AF and 37AG of the Federal Court of Australia Act 1976 (Cth), on the ground that the order is necessary to prevent prejudice to the proper administration of justice, the Confidential Exhibit GD8 to the affidavit of Gayle Dickerson sworn on 15 April 2021 is not to be published and/or accessed by any person other than the applicants (and their legal representatives), Calabria Family Wines Pty Ltd (and its legal representatives) and Hunterfields Pty Ltd and Belford Land Corporation Pty Ltd as trustee for the Belford Property No. 2 Trust (and their legal representatives), until the date of resumption of a meeting of the creditors of McWilliam’s Wines Group Ltd (Subject to Deed of Company Arrangement) and Mount Pleasant Wines Pty Ltd (Subject to Deed of Company Arrangement) (together, the Companies), or further order.

2. Pursuant to s 90-15 of the Insolvency Practice Schedule (Corporations), being Schedule 2 to the Corporations Act 2001 (Cth) (IP Schedule), the first applicants, Gayle Dickerson, Tim Mableson and Ryan Eagle in their capacity as joint and several Deed Administrators of McWilliam’s Wines Group Ltd (Subject to Deed of Company Arrangement) and Mount Pleasant Wines Pty Ltd (Subject to Deed of Company Arrangement), are justified in proposing to the creditors of the Companies both an alternative deed of company arrangement substantially in the form set out at pages 1 to 38 of Exhibit GD7 to the affidavit of Gayle Dickerson sworn on 15 April 2021 (Alternative DOCA) and a further alternative deed of company arrangement substantially in the form set out at pages 8 to 47 of Exhibit GD9 to the affidavit of Gayle Dickerson sworn on 20 April 2021 (Second Alternative DOCA), so as to permit the sale of the assets and business of the Companies.

3. Pursuant to s 447A of the Corporations Act 2001 (Cth) and s 90-15 of the IP Schedule, Part 5.3A of the Corporations Act 2001 (Cth) is to operate in relation to the Companies as if upon:

(a) resolutions being passed by the creditors of each of the Companies:

(i) to terminate the deed of company arrangement entered into on 3 August 2020 (Existing DOCA); and

(ii) to enter into the Alternative DOCA or the Second...