BELL GROUP COMPANIES (FINALISATION OF MATTERS AND DISTRIBUTION OF PROCEEDS) ACT 2015 - SECT 39

BELL GROUP COMPANIES (FINALISATION OF MATTERS AND DISTRIBUTION OF PROCEEDS) ACT 2015 - SECT 39

39 .         Recommendations with respect to liabilities

        (1)         The Authority must recommend, in writing, to the Minister the amount (if any) to be paid to a person, or the property (if any) to be transferred to or vested in a person (instead of or in addition to the payment of money), in respect of the aggregate of all liabilities of all WA Bell Companies to that person as a creditor.

        (2)         In making a recommendation under this section, the Authority —

            (a)         must have regard to the objects of this Act; and

            (b)         must have regard to any agreement between any of the creditors, as to the distribution of the proceeds of the Bell litigation, entered into after 12 noon on the day before the day on which the Bill for this Act was introduced into the Legislative Assembly; and

            (c)         must have regard to any submissions made under section 36(6); and

            (d)         may assess the priority of each liability of a WA Bell Company (as determined under section 37) in accordance with the Corporations Act Part 5.6 Division 6 Subdivision D as if it were winding up the company under that Act; and

            (e)         may have regard to the following —

                  (i)         liabilities under any guarantee or indemnity so as to avoid double recovery;

                  (ii)         the Authority’s assessment of the value of unliquidated liabilities;

                  (iii)         recoveries that might be made by a creditor from subsidiaries of TBGL that are not WA Bell Companies;

                  (iv)         the relative size of each liability and the relative importance of the satisfaction of that liability to the relevant creditor;

                  (v)         the detriment to a creditor of not receiving payment of any liability in full;

                  (vi)         any amount paid by a creditor for the acquisition of, or of any interest in, a liability;

                  (vii)         any recommendation as to the payment of compensation under section 40.

        (3)         A recommendation in an interim report under section 38(3) is an interim recommendation.

        (4)         A recommendation in the report under section 38(1) is a final recommendation and must take into account any amount or property that the Governor under section 41(2) has determined is to be paid to, or transferred to or vested in, a person.

        (5)         A recommendation need not contain reasons.

        (6)         The Authority has an absolute discretion as to —

            (a)         the quantification of any liability; and

            (b)         the amount recommended to be paid to a person or the property recommended to be transferred to, or vested in, a person; and

            (c)         the priority to give to that payment, transfer or vesting.

        (7)         Nothing in this section requires that the aggregate value of all money recommended to be paid, and all property recommended to be transferred or vested, under this section must be equal to the value of the money or property held by the Authority or the total liabilities of all WA Bell Companies as determined under section 37.

        (8)         Nothing in this section creates any right in, or for the benefit of, a creditor of a WA Bell Company or any other person.

        (9)         The Authority has absolute privilege in making a recommendation under this section and in relation to any fact or matter stated in the recommendation.

        (10)         A failure by the Authority to comply with any provision of this section does not invalidate a recommendation made by it under this section.