- Amaca Pty Ltd (under NSW administered winding up) v McGrath & Honey

Judgment

1. In an earlier application in these proceedings, the Plaintiffs, Amaca Pty Limited (under NSW administered winding up) ("Amaca"), Amaba Pty Limited (under NSW administered winding up) and ABN 60 Pty Ltd (under NSW administered winding up) previously sought orders under s 562A(4) of the Corporations Act 2001 (Cth) that ss 562A(2)-(3) of the Corporations Act did not apply to the receipt of specified monies in respect of policy years commencing 31 March 1989, 31 March 1990, 31 March 1991 and 31 March 1992 (which have been referred to as the "Mid Clator" years) and that certain monies received by the liquidators of HIH Casualty & General Insurance Limited (in liquidation and subject to scheme of arrangement) ("HIHC&G") should be paid by them to the Plaintiffs. I dealt with that application in my judgment delivered on 5 March 2012 ([2012] NSWSC 176) ("the earlier judgment") and held that ss 562A(2)-(3) of the Corporations Act did not apply to reinsurance monies received by HIHC&G in respect of several reinsurance policies in respect of the Mid Clator years, where those monies had been paid by reinsurers under Deeds of Commutation and Settlement between HIHC&G and those reinsurers in respect of actual or contingent liabilities of HIHC&G to the Plaintiffs, and ordered, under s 562A(4) of the Corporations Act, that those receipts (net of relevant expenses) be paid to Amaca.
2. By Interlocutory Process filed on 17 June 2015, the Plaintiffs bring a further application in relation to receipts from Municipal General Insurance ("Municipal receipt") and Pohjola Insurance ("Pohjola receipt") relating to the Mid Clator years. The Municipal receipt relates to a commutation between HIHC&G and Municipal on 30 March 2010, a portion of which, GBP159,097, related to a commutation of reinsurance agreements between HIHC&G and Municipal in the Mid Clator years, by which Municipal had reinsured HIHC&G's asbestos liability cover to the James Hardie Group. The application relates to an amount of AUD 262,667, being the Australian dollar equivalent of that payment, converted at exchange rates at the time of the commutation. The Pohjola receipt results from the submission of a proof of debt by HIHC&G in the insolvent estate of Morgate Insurance Company Limited (formerly known as Pohjola Insurance Company Limited). An amount of GBP 2,750.73 was received from Morgate, referable to Pohjola's share, as reinsurer, of HIHC&G's liability under incurred but not reported claims by the James Hardie companies in two of the Mid Clator years. The application relates to an amount of AUD6,404.49, being the Australian dollar equivalent of that amount, converted using exchange rates at the time of the dividend payment. The Plaintiffs seek similar orders to those which have previously been sought in similar applications in the proceedings, that the Municipal receipt and the Pohjola receipt must each be applied by the liquidators and HIHC&G by deducting expenses of and incidental to getting in the receipts, quantified as 2.5%, and deducting any dividends or distributions already paid by the in respect of the relevant receipts and paying the balance of those receipts to Amaca. The liquidators do not oppose the application.