property includes rights and powers of any description, including rights and powers that are of a personal character and are incapable under the general law of being assigned or performed vicariously.
58 In Re Stork ICM Australia Pty Ltd (2006) 25 ACLC 208, Lindgren J made orders approving a scheme of arrangement which included the transfer of liabilities which might arise in the future from one Stork company to another arising out of future proceedings as defined in the scheme documentation. In that documentation, future proceedings was defined as:
Legal proceedings which have not yet commenced, but for which a cause of action has accrued or the injury or other event that may lead to a cause of action accruing (including, without limitation, exposure to asbestos dust) has occurred, or will occur in the future.
59 At [79]-[92], his Honour reviewed a number of relevant authorities. Some of those authorities supported by analogy an expansive interpretation of the concept of liabilities for the purposes of s 413(1)(a) and s 413(2) of the Act.
60 In Re Stork ICM Australia Pty Ltd 25 ACLC 208, the potential liabilities under consideration by Lindgren J were described by his Honour at [92] as … inchoate, potential or contingent liabilities … This was because the definition covered claims in the future by asbestos victims arising from injury or illness already being suffered by those victims but in circumstances where they may not necessarily be aware of the fact that they had that illness or injury.
61 In the present case, I was content to make an order transferring the liabilities of both Achieve and Crowle to NewCo (Order 5). I did so on the basis of the definition of liabilities in each of the schemes. That definition simply incorporated the definition in s 413(4) of the Act.
62 The subject matter of Re Stork ICM Australia Pty Ltd 25 ACLC 208 was, of course, different from the subject matter of Order 6 and Order 7 in the present case. In Re Stork ICM Australia Pty Ltd 25 ACLC 208, Lindgren J was dealing with liabilities. In particular, his Honour was considering certain kinds of future liabilities. In the present case, the subject matter calling for consideration is a potential future asset. That potential future asset is a bequest that becomes effective at some time in the future as a result of the death of the testator. Such bequests may have been in testamentary instruments which had been made prior to the merger date or may be in such instruments made after that date. In no sense could the subject matter of such bequests be regarded as property of either Achieve or Crowle in existence as at the merger date. Furthermore, looking at the matter prospectively from that date, the subject matter of such bequests could at best be described as contingent property.
63 However, the reasoning of Lindgren J in Re Stork ICM Australia Pty Ltd 25 ACLC 208 is capable of application by analogy. The definition of property in s 413(4) of the Act, in effect, mirrors the ideas behind the definition of liabilities in the same subsection. Applying reasoning similar to that undertaken by Lindgren J in Re Stork ICM Australia Pty Ltd 25 ACLC 208 to the present question would lead to a similarly expansive view being taken of the definition of property as it appears in s 413(4).
64 Notwithstanding the fact that bequests of the kind in contemplation in the present case cannot be described as inchoate in the same way that an unrevealed but nonetheless existing asbestos-caused injury or illness might be described as inchoate, Lindgren J's reasoning seems to me to be apposite. Future property should be regarded as falling within the definition of property in s 413(4), even if, as at the merger date, it is nothing more than potential or contingent.
65 There is, of course, a general definition of property in s 9 (Dictionary) of the Act. That definition is to apply … unless the contrary intention appears … The terms of that definition are as follows:
property means any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description and includes a thing in action.
66 The general definition in s 9 of the Act sits quite comfortably with the specific definition in s 413(4) of the Act. The two can sensibly be interpreted together.
67 In Bell Group Ltd (in liq) v Westpac Banking Corporation (1996) 18 WAR 21, (1996) 22 ACSR 337, (1996) 15 ACLC 8 at 22 ACSR 343, Templeman J held that, when used in s 564 of the Act, the word property did not include future property but was confined to property presently in existence.
68 To the opposite effect is a decision of Elfic Ltd v Macks (2001) 181 ALR 1, (2001) 162 FLR 41, (2001) 19 ACLC 1324. Although Elfic Ltd v Macks 162 FLR 41 was not a decision which dealt with s 564 of the Act (rather it considered s 477(2)(c)), at [79]-[81] McMurdo P held that the term property should retain the broad meaning which it bears generally in the Act. At [182]-[183], Davies JA (with whom Cullinane J agreed) considered the meaning of property when used in s 477(2)(c) and said:
182 The first contention was that, if cl 15 of the policy was no more than a purported disposal of future property, it was not a disposal of property within the meaning of s 477(2)(c) even if it was effective in equity. Property is defined in s 9 to mean "any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description and includes a thing in action". Mr Keane submitted (Relying on Bell Group Ltd (in liq) v Westpac Banking Corporation (1996) 18 WAR 21 at 27-8) that the words "present or future" in this definition qualified the words "estate or interest" not "property"; and that therefore it relates only to presently existing property.