Askernish Pty Ltd

FEDERAL COURT OF AUSTRALIA

Askernish Pty Ltd [2004] FCA 400

CORPORATIONS – voluntary administration – application for an order extending time to reconvene adjourned second meeting of creditors – whether the court has power to extend time – factors in exercise of discretion – liberty to apply granted.

Corporations Act 2001 (Cth), ss 421(2), 436E, 439A, 439B(2), 447A and 1322(4)

Cawthorn v Keira Constructions Pty Ltd (1994) 13 ACSR 337 cited
Mann v Abruzzi Sports Club Ltd (1994) 12 ACLC 137 cited
Milankov Nominees Pty Ltd v Roycol Ltd (1994) 52 FCR 378 cited

Re Double V Marketing Pty Ltd(in administration) (1995) 16 ACSR 498 cited

Re Locm Pty Ltd (1997) 79 FCR 35 cited

Re Old Papa’s Holdings Ltd; Ex parte Wallman (2001) 24 WAR 229 cited

Re Regency South Steyne Investments Pty Ltd [2003] FCA 1546 cited

IN THE MATTER OF ASKERNISH PTY LTD (administrator appointed) (receiver and manager appointed) (ACN 008 806 773)
W34 OF 2004

LEE J
13 FEBRUARY 2004
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W34 OF 2004

IN THE MATTER OF ASKERNISH PTY LTD (administrator appointed) (receiver and manager appointed) (ACN 008 806 773)
ANTHONY MICHAEL TRAVERS PLAINTIFF
JUDGE:	LEE J
DATE OF ORDER:	13 FEBRUARY 2004
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The time within which the plaintiff may reconvene the adjourned meeting of creditors of Askernish Pty Ltd (administrator appointed) (receiver and manager appointed) (ACN 008 806 773) (“the company”) be extended to 22 April 2004.

2.Leave be reserved to any person claiming to be interested (including the Australian Securities Investment Commission, any creditor, or the receiver and manager) to vary these orders on 48 hours notice to the plaintiff.

3.The plaintiff’s costs of the application be costs in the administration of the company.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W34 OF 2004

IN THE MATTER OF ASKERNISH PTY LTD (administrator appointed) (receiver and manager appointed)
(ACN 008 806 773)

ANTHONY MICHAEL TRAVERS
PLAINTIFF

JUDGE:	LEE J
DATE:	13 FEBRUARY 2004
PLACE:	PERTH

REASONS FOR JUDGMENT

LEE J:

1. By originating process filed on 12 February 2004 the plaintiff (“the administrator”) applied for an order pursuant to s 447A and/or s 1322(4)(d) of the Corporations Act 2001 (Cth) (“the Act”) extending the time within which the administrator may reconvene the adjourned second meeting of creditors of Askernish Pty Ltd (administrator appointed) (receiver and manager appointed) (ACN 008 806 773) (“Askernish”).

2. The relevant facts may be shortly stated as follows. 

3. Askernish was incorporated in Western Australia on 2 June 1976.  At material times it conducted an earthmoving equipment repair and maintenance business trading under the business name “Allplant and Mechanical Services”. 

4. On 27 October 1989 Askernish executed a debenture agreement creating a fixed and floating charge over its assets in favour of Palliser Holding Pty Ltd (“Palliser”).  By deed of assignment, said to be…