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Nortel rls.10.3 PDF Download
A joint listening to between the Federal court docket of Australia (FCA) and the high court docket of NZ (NZHC) has broken new floor. In complaints brought by the liquidators of Halifax funding features Pty Ltd (In Liquidation) (Halifax Australia) and Halifax New Zealand restricted (In Liquidation) (Halifax NZ), within the FCA and the NZHC respectively, the Courts delivered on 19 may additionally 2021, contemporaneous judgments and made constant orders after sitting together in a closing hearing in December 2020.
each and every court delivered separate judgments after deliberating collectively about the most important considerations earlier than each of the Courts for resolution (Kelly (Liquidator), within the be counted of Halifax funding capabilities Pty Ltd (in liquidation) v loo [2021] FCA 531; within the remember of Halifax New Zealand restrained (in liquidation) [2021] NZHC 1113).
background
In November 2018, Halifax Australia and Halifax NZ have been positioned into administration, and consequently liquidation in March 2019. The liquidators regarded that customer cash held on trust via each entity had been commingled and lawsuits have been commenced independently in each jurisdiction seeking judicial counsel and/or instructions as to the administration and distribution of customer funds.
classic Candidate for move-Border Cooperation
In Kelly, within the count of Halifax investment services Pty Ltd (In Liquidation) (No 5)1 Justice Gleeson (then within the FCA) accredited that, because the FCA's activity of jurisdiction in New Zealand could be suffering from a lack of attention with the aid of the NZHC, the FCA might request that the NZHC hear the proposed New Zealand complaints similtaneously with the Australian lawsuits, at least to the extent that any pooling order made will require cognizance in New Zealand.
Justice Gleeson expressed the view that this turned into a "basic candidate" for cross-border co-operation between courts to facilitate the fair and efficient administration of the winding up of Halifax Australia (and Halifax NZ). Her Honour changed into of the view that this might protect the pursuits of all principal persons, in particular the investor shoppers of Halifax Australia and Halifax NZ who may also have claims towards the money held with the aid of Halifax Australia. The FCA had no problem with the proposition that it and NZHC "should still endeavour to cooperate to the extent viable to advertise the objectives of the liquidations of Halifax AU and Halifax NZ" or "that such cooperation might consist of a concurrent listening to … if the NZHC have been amenable."2Â
Joint Sitting
In December 2019, the FCA and the NZHC held an historical joint case management hearing by the use of audio-visible hyperlink. all through that case administration listening to, the Courts regarded whether a Letter of Request may still be issued by the FCA to the NZHC pursuant to part 581(4) of the firms Act 2001 (Cth), in search of that the NZHC act in assist of and auxiliary to the FCA. at the conclusion of the joint case management hearing, each courts agreed to jointly behavior the hearings to assess the functions in both units of complaints.
The Courts in the beginning contemplated a actual joint sitting, however, on account of the COVID-19 pandemic, this become now not in the end possible and the joint sitting took place by means of audio-visible hyperlink (with guidance physically existing in every court docket).three Witnesses have been sworn or affirmed in both proceedings, and both the FCA and NZHC received the equal submissions and heard the same evidence. No objection turned into taken with the aid of any birthday celebration to the strategy taken via the Courts.
in a similar way, no objection turned into taken to deliberation between the Courts. Justice Venning of the NZHC stated in his motives that he and Markovic J "…agreed on the predominant considerations raised in the two units of proceedings."4
Judgments
The noticeable listening to turned into heard by way of Justice Markovic within the FCA (Justice Gleeson having been appointed to the high court) and Justice Venning (former Chief judge) in the NZHC.
Justice Markovic expressed the view that "…it is not appropriate that the two Courts adopt or convey one set of reasons. in contrast to an appellate courtroom, this courtroom and the high court docket NZ are each and every exercising their own jurisdiction, in response to the applicable legislative framework and legislation. it's crucial for every courtroom to reach its personal conclusions and to express its motives for doing so."5
Conclusion
this is the primary time any Australian or New Zealand courtroom has sat collectively with a court docket from an additional nation. It follows the joint sitting of the entire Federal court docket of Australia in Westpac Banking company v Lenthall (2019) 265 FCR 21 with the new South Wales courtroom of appeal in BMW Australia Ltd v Brewster (2019) 343 FLR 176). apart from a joint sitting between In Re Nortel Networks Inc 737 F 3d 265 (third Cir, 2013) and Re Nortel Networks Corp (2013) ONSC 1757, in recognize of which a Canadian court and a u.s. court docket carried out a joint trial with the aid of audio-visual hyperlink, it's a first as a minimum within the typical law world. The joint listening to and parallel judgments deliver a precedent for cross-border cooperation between courts in jurisdictions around the world.
greater peculiarly, these situations illustrate the extent to which judges from distinct jurisdictions are capable of facilitating concurrent bancrupt administrations to achieve reasonable and effective outcomes for the advantage of creditors and different stakeholders alike.
1Â [2019] FCA 1341
2Â [2019] FCA 1341 at [59]
3Â [2021] NZHC 1113 at [8]
4Â [2021] NZHC 1113 at [9]
5Â [2021] FCA 531 at [30]
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