Commonwealth Bank of Australia v Fernandez

The Commonwealth Bank of Australia and the National Australia Bank applied for the removal of Mr Fernandez as administrator of the Willmott Forests group of companies, and for him to be replaced by Messrs Crosbie and Carson of PPB Advisory Services. The application was supported by the Australian Securities and Investments Commission (ASIC) and a group of investors, the Willmott Growers Group Inc. It was opposed by Mr Fernandez and another group of investors, the Willmott Action Group Inc. The court was required to decide whether the administrator was required to inform creditors that a substitute administrator had been nominated, and whether the chairperson had the power to adjourn the meeting and whether a resolution to remove the administrator could be carried on a casting vote. The court held that the administrator was not required to inform creditors that a substitute administrator had been nominated, and that the chairperson had the power to adjourn the meeting. The resolution to remove the administrator was not carried on a casting vote. The court also held that the new administrator was required to appoint independent solicitors and that the administrators’ fees were to be fixed by the court.

The court found that the notice of the first meeting of creditors was sufficient, and that the administrator was not required to inform creditors that a substitute administrator had been nominated. The court found that the chairperson had the power to adjourn the meeting and that the resolution to remove the administrator was not carried on a casting vote. The court also found that the new administrator was required to appoint independent solicitors and that the administrators’ fees were to be fixed by the court. The court held that the application to reverse the resolution to remove the administrator under s 600C of the Corporations Act 2001 (Cth) was not necessary, as the resolution was not validly carried. The court held that the new administrator should be appointed and that the administrators’ fees should be fixed by the court. The court made orders removing Mr Fernandez as administrator and appointing Messrs Carson and Crosbie as joint and several administrators of the Willmott Forests group of companies. The court also made orders varying the remuneration of the new administrators and extending the period within which the meeting of the creditors must be convened. The proceeding was adjourned to a date to be fixed and liberty to apply was reserved. Costs were reserved.