opes appeal critic

ANZ suceeded in acheiving a third party release under the scheme of arrangment and even won the appeal a few weeks ago.

Lehman Brothers was not as sucessful and their third party release under the deed of company arrangement was held to be void and of no effect in decision handed down on Friday 25/09/09. http://www.austlii.edu.au/au/cases/cth/FCAFC/2009/130.html

Some may find Rares comments on the Opes of interest:

"111 Thus, it is not necessary to decide whether Finkelstein J in Opes [2009] FCA 813; 258 ALR 362 or the Full Court on appeal in Fowler [2009] FCAFC 125 correctly construed s 411, but these reasons should not be seen as endorsing the reasoning in either decision. However, the Full Court did not refer to the basic principles of statutory construction that require interpretation of legislative provisions in such a way as will not affect individuals’ property rights without the clearest words: American Dairy Queen 147 CLR at 682-683; Bropho 171 CLR at 18; Blue Metal Industries 117 CLR at 659. Nor did they examine the ratio of McLelland J’s reasoning in Re Glendale [1982] 2 NSWLR 563, that the Court order authorised by s 411 of the Act (or its predecessors) does not give any validity to so much of a scheme as affects rights or liabilities as between an outsider and creditors of a company."