16.3 Termination where Deed achieves Purpose
If the terms of the Deed have been satisfied and the Deed Fund fully distributed, or if clause 10 applies, the provisions of clause 10.4 have been satisfied then the Deed will terminate and the Deed Administrators must certify to that effect in writing and must within 28 days lodge with ASIC a notice of termination of the Deed in the approved form. "
25 It was common ground that the plaintiff is a Landlord Creditor who continues to lease premises to the company after the Commencement Date. It is common ground that the plaintiff cannot prove as a Participating Creditor for rent falling due after 27 January 2009, although it was submitted for the defendant that if the plaintiff forfeited the lease, or if the defendant ceased to possess the premises, the plaintiff could prove for compensation payments in accordance with clauses 14.1-14.3.
26 The plaintiff's primary submission is that a claim or demand which is not admissible to proof is not affected by the other provisions of the deed. Hence, the plaintiff submits that because the plaintiff cannot prove for the value of the future instalments of rent, the deed on its proper construction does not release the defendant from its obligations to pay such rent.
27 The key provision is clause 4.6, because the deed has terminated in accordance with clause 16.3. It is the Claims, as defined, of Creditors, which are released or extinguished. A Claim is defined consistently with s 553 of the Corporations Act. For the same reasons as in Lam Soon Australia Pty Ltd v Molit (No. 55) Pty Ltd, the plaintiff's claim for future instalments of rent is a Claim within the meaning of the deed.
28 In my view the deed does not contain any symmetry between the claims which can be admitted to proof and the Claims which are released and extinguished under clause 4.6 or which, during the Arrangement Period, will be subject to the moratorium under clause 4.4. Thus, it is only some of the Claims of Excluded Creditors which are excepted from the release and extinguishment affected by clause 4.6, although they are not entitled to be proved as claims of Participating Creditors.
29 Clause 14 is concerned to limit the quantum of claims which the particular class of Participating Creditors can make. I do not consider that the limitation on the quantum and nature of claims which that class of Participating Creditors can make warrants reading the word "Claim" in clause 4.6 in any way other than in accordance with its literal terms.
30 Mr Golledge pointed out that the moratorium in clause 4.4 is expressly made subject to clause 4.1 of the deed. Clause 4.1 provides that the deed binds all persons having a claim to the extent of such Claim, but that this is "subject to the rights of any owner or lessors." Those opening words of clause 4.1 have to be read as referring to the rights of an owner or lessor referred to or preserved by the deed.
31 Clause 4.3 reflects the language of s 444D(3). In my view, it is to be construed in the same way, and refers to there being no restriction on the right of an owner or lessor to take extra-curial action in relation to the property such as by re-entry for non payment of rent.
32 Mr Golledge submitted that the proviso in the last sentence of clause 4.6 points to clause 4.3 not being confined to the exercise of non-curial rights, but as demonstrating that clause 4.3 means that the lessor is not restricted in enforcing its right to rent, being a right which it has in relation to a relevant property, provided of course that the lessor did not vote in favour of the resolution. He submitted that if clause 4.3 did not refer to monetary claims, then the inclusion of the reference to that clause in the proviso to clause 4.6, (which is concerned with the discharge of monetary liabilities), would be otiose.
33 I do not agree. In my view the last sentence of clause 4.6 has a sensible operation consistent with the received construction of s 444D(3). Were it not for that proviso, it would be at least seriously arguable that on the release and extinguishment of the lessor's right to future rent a lessor would be precluded from terminating a lease and re-entering premises because no debt would be owed for such rent.
34 It was also submitted that it is anomalous and - as I understand the submission - unfair, to deprive a lessor, whose property continues to be used or occupied by the company after the DOCA commenced, from being entitled to claim a dividend under the deed in respect of accruing rent, but nonetheless to make such a claim for accruing rent subject to the moratorium and discharge provisions of the deed.
35 I do not consider that these matters relevantly affect the construction of the deed. In Lam Soon Australia Pty Ltd v Molit (No. 55) Pty Ltd, the full Federal Court said (at 42) that:
" The Law clearly contemplates that the holder of a bill of sale and a lessor are to be treated similarly, and we can see no particular unfairness in that. Mortgagee and lessor are both protected by their ability to exercise their extra curial rights and remedies in relation to the property. Mortgage and lease documents can, and no doubt usually do, empower the mortgagee or lessor to terminate the arrangement and take possession following the appointment of an administrator; certainly they are likely to do so where there is a failure to pay an instalment of principal, interest or rent. "