ACN 101 445 916 Pty Limited
[2004] NSWSC 710
•23 July 2004
CITATION: ACN 101 445 916 Pty Limited [2004] NSWSC 710 HEARING DATE(S): 22 & 23 July 2004 JUDGMENT DATE:
23 July 2004JURISDICTION:
EquityJUDGMENT OF: Hamilton J DECISION: Order that Part 5.3A of the Corporations Act 2001 (Cth) in relation to company administration operate as if company were correctly named in documents; declaration made that documents valid and administration valid. CATCHWORDS: CORPORATIONS [178] - Voluntary administration - Jurisdiction and powers of court - General power to make orders - Power to court to make such order as it thinks appropriate. LEGISLATION CITED: Corporations Act 2001 ss 447A, 447C, 1322 CASES CITED: Australasian Memory Pty Limited v Brien (2000) 200 CLR 270
Re Ricon Constructions Pty Ltd (In Liq); Ex parte McDonald (1997) 43 NSWLR 174; 26 ACSR 655
Re Vanfox Pty Limited [1995] 2 Qd R 445; (1994) 13 ACSR 209
Re Vouris (2003) 177 FLR 289; 47 ACSR 155PARTIES :
Mark Cooper (P) FILE NUMBER(S): SC 4111/04 COUNSEL: R K Eassie (P) SOLICITORS: Nash O'Neill Tomko (P)
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
HAMILTON J
FRIDAY, 23 JULY 2004
4111/04 RE ACN 101 445 916 PTY LIMITED; THE APPLICATION OF MARK COOPER
JUDGMENT
1 HIS HONOUR: This is an application to correct, in relation to a company administration, a simple but disastrous mistake and the ripples from it. The mistake is that the company's name is ACN 101 445 916 Pty Limited but in the resolution appointing the administrator, the notice of appointment of administrator and subsequent documents, including the notice convening the first meeting of creditors, the company was described as ACN 101 455 916 Pty Limited (my emphasis). The documents, therefore, did not on their face operate in relation to the company they were intended to relate to. It should be said that there is no company ACN 101 455 916 Pty Limited, so that they did not purport to apply to some other existing entity.
2 The first meeting of creditors has been convened for Monday next, 26 July 2004. The evidence shows that, by the efforts of the administrator, all bar two of the creditors have been contacted and informed of the error. In any event, I should have thought that the notice of meeting with the incorrect number could hardly have caused confusion to any creditor. As there is no company of the name which is one digit different, there could only be one debt owed to each creditor that could in reality be referred to by the notice.
3 Mr Eassie, of counsel for the plaintiff, asked me for relief primarily under s 1322 of the Corporations Act 2001 (Cth) (“the CA"). He did ask alternatively for relief under ss 447A and 447C of the CA. In my view it is better to grant the primary relief solving this problem under s 447A. The width of the power under that section has been made plain by the High Court of Australia in Australasian Memory Pty Limited v Brien (2000) 200 CLR 270. Furthermore, it has been made plain that it can be used as the means of correcting errors or defects in relation to creditors' meetings: see the judgment of Santow J (as he then was) in Re Ricon Constructions Pty Ltd (In Liq); Ex parte McDonald (1997) 43 NSWLR 174; 26 ACSR 655. In my view, the primary relief which best solves the problem is an order under s 447A that Part 5.3A of the CA operate in relation to the administration as if the company were correctly named in the relevant documents. The documents which particularly require remedying are the original minute of the resolution appointing the administrator, the notice of appointment of administrator and the notice convening the meeting: see generally the judgment of Campbell J in Re Vouris (2003) 177 FLR 289; 47 ACSR 155.
4 However, Mr Eassie pressed me specifically to make in addition orders declaring the administration valid and declaring the notice of meeting valid. Whilst in my view the order I propose to make under s 447A has this effect in any event, as these orders will be on public record as regulating the status of this company, I think it better that the situation be made quite patently clear by order specifically declaring the validity of relevant documents.
5 It seems to me plain that the naming of the company in the minutes recording the resolution, in the notice of appointment and in the notice of meeting can all be treated as procedural matters, so that it is possible to make such orders under s 1322 of the CA: see the decision of Thomas J in the Supreme Court of Queensland in Re Vanfox Pty Limited [1995] 2 Qd R 445; (1994) 13 ACSR 209 and I propose to do so.
6 Section 447C of the CA confers power to declare valid an administration where there is doubt as to its validity. At first the proposition appealed to me that there was no doubt about the validity of this appointment; it was plainly invalid because in terms it appointed an administrator not to this company but to a non existent entity of another name. However, bearing in mind that there is no entity of that other name, it seems to me that there must be doubt as to whether the document is ineffective or as to whether it could be read as referring to and validly appointing an administrator to the existing company in whose name there is only one different digit and whose directors were the people who passed the resolution. In those circumstances I also propose for clarity to make a declaration relating to the validity of the administration.
7 For those reasons I make orders in accordance with short minutes initialled by me and to be placed with the papers.
Last Modified: 09/02/2004
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