Banning Holdings Pty Ltd v Holbrook

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   BANNING HOLDINGS PTY LTD -v- HOLBROOK [2009] WASC 178

CORAM:   SIMMONDS J

HEARD:   5 JUNE 2009

DELIVERED          :   23 JUNE 2009

FILE NO/S:   CIV 2001 of 2009

MATTER                :Section 447A and s 447B of the Corporations Act 2001

BETWEEN:   BANNING HOLDINGS PTY LTD (ACN 009 006 437)

BAYSTAR HOLDINGS PTY LTD (ACN 066 604 019)
Plaintiffs

AND

KIM DAVID HOLBROOK as administrator of PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD (ACN 082 879 641)
First Defendant

FRASERS - THE PROPERTY MANAGERS PTY LTD (ACN 114 445 500)
R & S MOTORS PTY LTD (ACN 094 148 642)
WATER CORPORATION OF WESTERN AUSTRALIA
COMPUTER ACCOUNTING & TAX PTY LTD (ACN 009 470 491)
Second Defendants
 

Catchwords:

Corporations - Orders as to the application of Corporations Act 2001 (Cth) pt 5.3A - Order to avoid automatic termination of deed of company arrangement - Relevant considerations in making such an order

Legislation:

Corporations Act 2001 (Cth), s 435A, s 445D, s 445F, s 447A, s 447B
Rules of the Supreme Court 1971 (WA), O 4 r 3, O 52A

Result:

Orders extending effect of deed of company arrangement

Category:    B

Representation:

Counsel:

Plaintiffs:     Mr T R Stephenson

First Defendant              :     Mr G A Flynn

Second Defendants        :     No appearance

Solicitors:

Plaintiffs:     Eastwood Law

First Defendant              :     Hotchkin Hanly

Second Defendants        :     No appearance

Interested Party             :     Mr H H J Frigger & Ms A C T Frigger

(Directors of Fourth Named Second Defendants)

Case(s) referred to in judgment(s):

Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [2008] WASC 133

Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [2008] WASC 133 (S)

Mulvaney v Rob Wintulich Pty Ltd (1995) 60 FCR 81

Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2008] WASCA 222

SIMMONDS J: 

Introduction

1. This was the return of an originating summons to prevent the termination of a deed of company arrangement.  This hearing followed orders made ex parte on the first return of the originating summons on 29 May 2009.

2. At the hearing on 5 June 2009 there were appearances for the plaintiffs and the first defendant.  Without objections from counsel, I permitted the two directors and shareholders of the fourth named second defendant to make submissions at the hearing as interested parties notwithstanding Rules of the Supreme Court 1971 (WA) O 4 r 3(2).

3. At the hearing on 5 June 2009, I made orders to the effects described below, reserved the matter of costs, and otherwise adjourned the present proceedings.  These are my reasons.

4. The present proceedings need to be seen in the context of other proceedings (CIV 2265 of 2006) in which judgment for the fourth named second defendant, Computer Accounting and Tax Pty Ltd (CAT), has been given and enforcement proceedings taken against Professional Services of Australia Pty Ltd (PSA) (the present administrator of which is the first defendant in the present…