EAD Concepts Pty Ltd (admin apptd)
[2021] VSC 227
•28 April 2021 (ex tempore); 29 April 2021 (ex tempore); revised 3 May 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST
S ECI 2021 00620
| SPF FUNDS MANAGEMENT PTY LTD (IN LIQUIDATION) (ACN 608 312 894) | Plaintiff |
| - and - | |
| EAD CONCEPTS PTY LTD (ACN 145 899 485) (ADMINISTRATORS APPOINTED) (FORMERLY KNOWN AS PITARD CONCEPTS PTY LTD) | Defendant |
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JUDICIAL REGISTRAR: | Irving JR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 April 2021 and 29 April 2021 |
DATE OF JUDGMENT: | 28 April 2021 (ex tempore); 29 April 2021 (ex tempore); revised 3 May 2021 |
CASE MAY BE CITED AS: | EAD Concepts Pty Ltd (admin apptd) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 227 |
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CORPORATIONS – Winding up – Application for winding up pursuant to Corporations Act 2001 (Cth) s 459P – Defendant in voluntary administration under Corporations Act 2001 (Cth) Pt 5.3A – Second meeting pursuant to Corporations Act 2001 (Cth) s 439A imminent – Whether Court should order adjournment of winding up application – Whether Court satisfied that in the interests of creditors for company to continue under administration.
CORPORATIONS – Practice and Procedure – Application for stay of winding up orders pending appeal.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Fary SC with Mr J Kohn | Frenkel Partners |
| For the Administrators of the Defendant | Mr HNG Austin QC with Mr CM Fenwick Mr J Leung, solicitor | Strongman & Crouch |
JUDICIAL REGISTRAR:
Introduction
SPF Funds Management Pty Ltd (in liq) (‘SPFFM’) sought orders from the court that the defendant company (‘the Company’) be wound up in insolvency.[1] SPFFM’s application was based on the Company’s failure to comply with a statutory demand for the amount of $3,823,466.28.[2] That sum relates to funds loaned by SPFFM to the defendant during the period 14 November 2017 to 5 March 2019.
[1]At the time of filing of the originating process, the defendant company was named as Pitard Concepts Pty Ltd. On 29 April 2021 the title of the proceeding was amended to reflect the correct name of the defendant being EAD Concepts Pty Ltd (Administrators Appointed) (formerly known as Pitard Concepts Pty Ltd).
[2]The plaintiff’s evidence was that in order to minimise the possibility of an application to set aside the statutory demand, this amount reflected only account entries related to direct bank transfers between the plaintiff and the Company. The plaintiff asserted that the total quantum of debt was in the order of $15 million.
On 29 March 2021, after SPFFM filed their originating process and before the first court date, Messrs Matthew Kucianski and Con Kokkinos of Worrells Solvency & Forensic Accountants were appointed as joint and several voluntary administrators of the Company (‘Administrators’). The winding up proceeding came before the Court on 7 April 2021 and was adjourned by consent until 28 April 2021.
On 28 April 2021 the Company’s Administrators sought a further one week adjournment under s 440A(2) of the Corporations Act 2001 (Cth) (‘Act’) to the day after the proposed second meeting of creditors at which creditors were to vote on a proposal for a Deed of Company Arrangement (‘proposed DOCA’).[3] Under s 440A(2) the Court is bound to adjourn the hearing of a winding up application of a company under administration if the Court is satisfied that it is in the interests of the creditors to continue under administration rather than be wound up.
[3]Corporations Act 2001 (Cth) s 440A(2) (‘Act’).
Following an oral hearing on 28 April 2021, I refused the Administrators’ adjournment application. I delivered short reasons ex tempore for doing so. The winding up application was otherwise unopposed. The matter was adjourned to 29 April 2021 to allow SPFFM to clarify the orders it sought.
On 29 April 2021, the Administrators appeared and made an application for a stay of any winding up orders. The stay application was put on the basis of the Court’s rules and inherent powers and made without notice. I refused the Administrators’ stay application, providing short ex tempore reasons.
The Administrators have requested that I provide written reasons for the decisions refusing their applications for an adjournment and a stay. These are those reasons.
Principles
The principles that apply to an application pursuant to s 440A(2) of the Act are well settled and were not the subject of dispute at the hearing.
The Administrator bears the onus to show by ‘persuasive evidence’ that the Court ought to be satisfied that it is in the interests of the Company’s creditors that the administration continue rather than the Company be wound up.[4] More than ‘mere speculative possibility’ of a higher return to creditors in the administration rather than a winding up is required.[5] ‘Comfortable satisfaction’ of such a result is not required.
[4]Creevey v DCT (1996) 19 ACSR 456, 457.
[5]Re First Netcom Pty Ltd [2000] NSWSC 989, [8]–[9].
In Re KJ Consulting Pty Ltd (admin apptd),[6] Gyles J identified factors both supporting and telling against an adjournment. Factors supporting an adjournment include:
[6][2005] FCA 1827, [4]–[5].
(a) to enable the general body of creditors to exercise commercial judgment as to where the best interests of creditors lie;
(b) where related parties will contribute funds that would not be available in a liquidation; and
(c) where the administrator supports the adjournment.
Factors telling against an adjournment include:
(a) where the company is not trading and is not liable to be revived;
(b) where the company’s insolvency is undoubted; and
(c) the composition and views of the creditors.
In Offshore & Ocean Engineering Pty Ltd,[7] Brereton J noted:
What is required by s 440A(2) is satisfaction that it is in the interest of the company’s creditors for the company to continue under administration, rather than be wound-up, as distinct from satisfaction that it may be so. That reinforces the view that a substantial degree of persuasion that administration rather than liquidation is in the interests of the company’s creditors is required to invoke the section.
[7][2012] NSWSC 1296, [6] (emphasis in original).
The evidence on the application
The Administrators relied on two affidavits of Mr Con Kokkinos sworn on 26 April 2021 and 27 April 2021 respectively. Mr Kokkinos’ evidence was that:
(a) the Company was in the business of constructing and managing multi-storey dwellings;
(b) on 16 April 2021 the Administrators received a proposed DOCA from the director of the Company, Mr Simon Pitard;
(c) the Administrators prepared a report to creditors dated 26 April 2021, a copy of which was provided to the Court;
(d) the Administrators’ report relevantly:
(i) notified creditors that the second meeting would take place on 5 May 2021;
(ii) set out the Administrators’ estimate of returns to creditors in a liquidation and under the proposed DOCA; and
(iii) recommended that creditors accept the proposed DOCA;
(e) the Administrators had received eight proofs of debt totalling $22,145,539.00;
(f) the largest debtors by value were SPFFM in the sum of $10,203,016.00 and Balard Pty Ltd (a secured related party creditor) in the sum of $11,208,398.00;
(g) the Administrators were investigating these debts but were of the preliminary view that SPFFM was likely to have a claim of at least $9,173,932[8] which will be admitted for voting purposes and that the quantum of Balard Pty Ltd’s claim was accurate;
(h) the Administrators were of the belief that the Company, as builder of multi‑storey residential buildings, may have been exempt from any requirement to obtain domestic building insurance by virtue of the terms of the Domestic Building Insurance Ministerial Order;[9] and
(i) the Administrators believed it to be in the public interest that the Company continue trading to allow the owners of dwellings to seek rectification of defects.
[8]It was common ground that SPFFM’s statutory demand had been issued in an amount substantially less than the total it was owed by the Company.
[9]Victorian Building Authority, Domestic Building Insurance Ministerial Order (S 98, 23 May 2003) [57(1)].
The Administrators’ report to creditors contained the following summary of the relevant key terms of the director’s proposed DOCA:
(a) that the Administrators of the Company, Con Kokkinos and Matthew Kucianski, be appointed as joint and several Deed Administrators of the Deed;
(b) that management and control of the Company will return to the Director from the date of execution of the Deed;
(c) that, subject to clause [l] below, all creditors accept a moratorium on the collection of their debts. That is, whilst the Deed is in force, creditors will not be able to enforce any collection proceedings against the Company;
(d) that the Deed Administrators establish a ‘Deed Fund’ which will be used as a common pool of funds to make a distribution to Participating Creditors as identified in clause [h] below;
(e) the Company will trade during the period of the Deed;
(f) Pitard Knowles No. 1 Pty Ltd [is] to deposit the sum of $100,000 into the Deed Administrators’ bank account set up for the administration of the Deed, pending creditor approval of the proposed Deed, within 7 days of executing the Deed;
(g) all the assets of the Company shall be available for realisation by the Deed Administrators at their absolute discretion and at their sole discretion (to the extent that they are capable of realisation, and subject to any valid security interests) and the realisation from the assets will form part of the Deed Fund;
(h) participating creditors will include all priority and ordinary unsecured creditors of the Company which are not Non-Participating Creditors as defined in clause [j] below (‘Participating Creditors’);
(i) that all Participating Creditors accept the distribution under the Deed in full and final satisfaction of any debts owed to them by the Company and that once the final dividend is paid in the Deed Administration all Participating Creditors’ claims against the Company are extinguished;
(j) the following creditors will be excluded from receiving a dividend from the Deed Fund (‘Non-Participating Creditors’):
(iv) the Director;
(v) all of the Director’s related entities, (as defined in s 9 of the Act) which are not subject to an external administration appointment at the time of executing the Deed, who are owed monies by the Company, and who consist of:
· Balard Pty Ltd: $11,208,389 (inclusive of accrued interest);
· JA JV Pty Ltd: $400,000;
· Steller Elite Pty Ltd: $21,500;
· Steller Projects Pty Ltd: $38,330;
· Steller Residential Pty Ltd: $2,772;
· Steller Resources Pty Ltd: $20,374; and
· TDV Builders Pty Ltd: $73,299;
(vi) all owners of dwellings constructed by the Company, and the successors in title of those owners, insofar as and to the extent that they have or may in the future have a claim against the Company in respect of the Company’s contractual or statutory liabilities arising from the construction of the dwelling(s) owned by them.
(k) claims of the Non-Participating Creditors will not be extinguished by the Deed but, subject to clause [m] below in respect of liabilities referred to in clause [j(iii)], will be suspended for the period of the Deed;
(l) whilst this Deed remains in operation, each of the Non-Participating Creditors:
(i) will not participate or seek to participate in any distribution by the Deed Administrators; and
(ii) referred to in clauses [j(i) and (ii)] above will also defer his, her or its claim against the Company.
(m) further to clause [j(iii)] above and for the avoidance of doubt, the Deed does not release the Company from its contractual or statutory liabilities to owners of dwellings constructed by the Company, and to the successors in title of those owners, regardless of when those liabilities arise. Those liabilities remain enforceable and are not affected by this Deed;
(n) subject to clause [j] above, the funds accumulated and held by the Deed Administrators in accordance with the terms of the Deed shall be distributed in accordance with the priorities as set out in Subdivision D of Division 6 of Part 5.6 of the Act.
The Administrators’ report set out a summary of the Company’s financial position based on ‘information disclosed in the Company’s books and records, by the Director in the Report on Company Activities and Property (ROCAP)’ and the Administrators’ investigations. The Administrators estimated that the potential dividend to unsecured creditors under the proposed DOCA was in the range of 0.3 to 3 cents in the dollar. The Administrators estimated a nil return to unsecured creditors in a liquidation.
Based on the information available to the Administrators, they had formed the view that the Company was likely to have become insolvent between 1 July 2018 and 30 June 2019. Substantial further investigations would be required to establish the precise date the Company first became insolvent and whether the Company may be able to return to solvency.
The Administrators recommended that the creditors resolve to accept the proposed DOCA for the following reasons:
(a) all of the Company’s assets are available in both a DOCA and liquidation scenario, however in a liquidation any recoveries of the $17.8 million of mostly related party loans are likely to go to the secured creditor Balard Pty Ltd in full first;
(b) the recovery of any insolvent or voidable transaction claims under the liquidation are highly speculative and the potential recoveries available under the liquidation will require substantial further investigations to determine the likelihood of any recovery;[10]
[10]The Administrators noted that the director of the Company has executed a s 188 authority appointing a controlling trustee with the intention of putting forward a proposal to enter a personal insolvency arrangement (‘PIA’) pursuant to Part X of the Bankruptcy Act 1966 (Cth).
(c) the costs to pursue the insolvent or voidable transaction claims are significant, and a liquidator would likely not pursue these claims unless they were funded by a third party. A further consideration is that even if indemnity funding is provided, there is no certainty of a return to creditors in a liquidation;
(d) there are potentially a significant number of contingent claims in relation to properties developed by the Company. Under the proposed terms for the DOCA scenario, these creditors will not participate in distributions from the DOCA fund, however, will be able to seek remedy from the Company directly. The Company intends to address these claims, which results in a greater return to Participating Creditors, whilst still ensuring the contingent claims are resolved. Additionally, it appears that these claims will not have any other avenues of recourse in a liquidation scenario;
(e) the financial capacity of the Director to satisfy an insolvent trading claim (in the event his PIA is not accepted) is unknown;
(f) the proposed DOCA is expected to provide for a greater and more certain return to creditors and in a quicker timeframe than in a liquidation scenario; and
(g) the funds proposed under the DOCA have already been paid and [are] currently held in a solicitors’ trust account.
At the hearing of the Administrators’ adjournment application, Mr Andrew Bonwick, manager of an Owners Corporation of a building constructed by the Company, sought leave to appear and be heard. Mr Bonwick’s appearance was not opposed and leave was granted. The Owners Corporation had made a claim against the Company for rectification of defects which remained outstanding. Mr Bonwick informed the Court that he believed that, in the event the Company was liquidated, the Owners Corporation would have recourse through Builders Warranty Insurance with the Victorian Managed Insurance Authority which would not be available to it in the event the Company continued in an administration. Mr Bonwick informed the Court that the Owners Corporation sought clarity on whether the Company would remain in administration or be wound up so that the Owners Corporation could pursue the appropriate avenue of recourse to have the building defects rectified.
The plaintiff relied on two affidavits sworn on 27 and 28 April 2021 respectively by Claudia Baskett, solicitor for the plaintiff.
The plaintiff submitted that the Administrators’ adjournment application should be refused for a number of reasons including:
(a) the appointment of the Administrators is an eleventh-hour attempt to avoid liquidation with its enhanced scope for investigation;[11]
[11]In the matter of Offshore & Ocean Engineering Pty Ltd (n 7) [12] (Brereton J).
(b) while the plaintiff served a statutory demand for a lesser amount, there is a strong likelihood that its debt is in excess of $15 million;
(c) the Company is one of over 100 companies in a group of companies whose affairs are complex and intertwined (including 80 entities to which insolvency appointments have been made) and it is not yet clear how the significant flows of funds though the group may be unwound;
(d) the Company’s insolvency would appear to be directly related to its decision to on-lend (on an unsecured basis) in excess of $15 million to related entities in circumstances where those loans are now said to be unrecoverable;
(e) there is a strong prima facie case that Mr Pitard caused the Company to trade while insolvent and to incur debts including by significant on-lending to related parties—a matter that calls out for thorough investigation both for creditors and in the public interest;
(f) the Administrators appear to assume that recoveries against Mr Pitard on any insolvent trading claim will be limited to 0.5c in the dollar under his proposed PIA - a proposal that has no prospect of surviving challenge;[12]
[12]Cf Re Abouav; Ex Parte Wilbourne [1996] FCA 1514, [20]. In Stedman v Deputy Commissioner of Taxation [2000] FCA 336, a Full Court held that ‘offering to pay 3 cents in the dollar was manifestly unreasonable and derisory.’
(g) the Administrators have not attempted to find out where the on-lent moneys ultimately landed - noting that under Part 5.7B and in equity there is scope for a liquidator to recover beyond the immediate recipient of funds;
(h) the Company’s unexplained financial turnaround between FY18 and FY19 ought to be thoroughly investigated, in particular the fall in net assets from $2,791,566 to $858,502.89;
(i) the Administrators’ report indicates that the Administrators have not investigated the possibility of a challenge to the security held by Balard Pty Ltd (‘Balard’), despite the following:
(i) Balard is a related entity in relation to the Company and Balard’s sole shareholder is the Company’s director’s wife;
(ii) Balard’s PPSR registration was lodged in May 2020;
(iii) $7,320,383 of the $11,387,550 claimed by Balard was incurred post 30 June 2018 at a time when the Company’s Administrators have said it is likely to have been insolvent;
(iv) the entire sum of $11,387,550 was incurred prior to registration of Balard’s security interest on the PPSR;[13]
[13]See, eg, Re Hyams (1970) 19 FLR 232 at 255 and Sutherland v Brien [1999] NSWSC 155.
(v) the giving of security in favour of Balard, a related party, has had the effect of preferring it over other creditors of the Company;
(j) the suggestion that the Company should continue in existence in order to rectify defective works in its completed constructions does not bear any scrutiny in circumstances where:
(i) it would have no working capital with which to do works; and
(ii) related party debt will swamp all other creditors in any event;
(k) the DOCA is not supported by non-related unsecured creditors;
(l) Non-Participating Creditors in the proposed DOCA claim to be owed $11,764,673 and intend to control the meeting—even though they do not seek to obtain any direct financial benefit and their claims will not be extinguished through the DOCA;
(m) related party rights will be preserved by the Company and their interests will benefit generally by a lack of investigation into the fate of the $18 million on-lent through the Company;
(n) there appears to be no commercial purpose in the proposed DOCA, save to shield the director and related parties from enhanced scrutiny;
(o) the proposed DOCA is not in the public interest as:
(i) it would return control of the Company to a person who is likely to be disqualified from acting as a director in the near future;[14]
[14]See the Act (n 3) s 206B(3).
(ii) it would return the Company back to commercial life with a huge deficiency of assets over liabilities and no working capital; and
(iii) it would provide for a derisory return to creditors.
In the course of oral submissions the plaintiff pointed to a number of issues in the Administrators’ summary of the Company’s financial position, contained in the Report to Creditors. The plaintiff submitted that further information provided by the Company’s former accountant highlighted several omissions of relevant information from the Director’s ROCAP. In particular the plaintiff submitted that there were around $21.9 million of assets as at 31 July 2019 while the ROCAP suggests there were $0.2 million of gross assets as at 29 March 2021; the ROCAP omits mention of any existing building defect rectification claims; the ROCAP does not list SPFFM as a creditor; the ROCAP does not record loans to Steller Services (a related company) or to Shannon Hill despite these loans being recorded in the Company’s financial records as at 31 July 2019.
The plaintiff also noted that the Company has significant asset loans (totalling in excess of $12 million) to related companies that are not in external administration. The Administrators’ report to creditors notes that having viewed current balance sheets for these entities and conducted land title searches to confirm that the entities held no real property assets, the Administrators have formed the preliminary view that these entities do not appear to have the capacity to repay the loans. Based on the information available, the Administrators ‘do not anticipate any recoveries from this source’. The plaintiffs submitted that given the size of the asset loans to these entities and the fact that they were not in external administration, further investigations were prudent and necessary.
The Administrators’ evidence was that the information provided by the Company’s former accountant had been considered in preparing and finalising the Administrators’ report to creditors. For example, the Administrators referred to the section of their report explicitly dealing with the loan to Shannon Hill.
Resolution of the adjournment application
On the basis of all of the evidence before the Court I am not persuaded that it is in the interests of the Company’s creditors to continue under administration rather than be wound up.
First, the Company is one of many companies in a group of companies whose affairs are complex and heavily intertwined. The circumstances of the Company’s insolvency, identified by the Administrators as related to company loans to related companies, calls out for further investigation by an external administrator with the powers of a liquidator. A resolution to enter into the Proposed DOCA would prevent the proper investigation of matters that, in my view, warrant the scrutiny of a liquidator.
Second, the Administrators’ estimated dividend to unsecured and unrelated creditors of somewhere between 0.3-3 cents, while not nothing, was conceded by the Administrators to be a very minimal return.
Third, the Administrators conceded that while the $100,000 contribution to the Deed Fund would not be available in any liquidation, only a fraction of that amount would be available for distribution to creditors once the Administrators’ fees were taken into account. Other amounts identified by the Administrators as available for recovery from trade debtors and asset loans would be equally available in a liquidation as an administration.
Fourth, the Company is insolvent and has been since some date between 1 July 2018 and 30 June 2019. The Company intends to continue trading while making its assets available for realisation and inclusion in the Deed Fund. A primary reason given for the Company to continue to trade was to address any rectification and defect claims of owners of dwellings constructed by the Company. The Administrators proffered no explanation of how the Company intended to continue trading beyond a general and vague statement that funds would be sought from related companies.
Fifth, it is not yet clear whether the significant flow of funds through the group may be able to be unwound to the benefit of creditors. In particular, it is unclear whether the asset loans to related entities that are not in external administration can be at least partially recovered.
Sixth, I accept the plaintiff’s submissions that Balard’s security interest should be further investigated and that the outcome of that investigation may significantly alter the return to unsecured creditors.
Seventh, the proposed DOCA is not supported by SPFFM, one of the two largest creditors by value, and constituting approximately 48% of votes at the second creditors meeting based on the current proofs of debt. The other largest creditor, Balard Pty Ltd, is a related entity who would not partake of the Deed Fund but whose debt would be preserved under the terms of the proposed DOCA.
Stay application
On 29 April 2021, when the plaintiff’s winding up application came before the Court for final orders, the Administrators’ legal representative sought a stay of any winding up orders.
The Administrators’ legal representative submitted that:
(a) instructions had been received to seek a stay from the Company’s Director only minutes before the hearing commenced;
(b) that the stay was sought for a period of 5 days to consider an appeal of the Court’s decision not to grant an adjournment of the winding up application;
(c) that, in the event the stay was granted, the Administrators would provide an undertaking not to convene the second meeting of creditors;
(d) that any appeal would be rendered nugatory if the stay was not granted and the winding up orders were made; and
(e) the plaintiff would not be prejudiced by any stay.
The Administrators’ legal representative submitted that any appeal would be rendered nugatory because steps may be taken in the liquidation that could not be reversed if any appeal was successful. The Administrators’ legal representative did not identify any particular steps. I acknowledge that the Administrators’ legal representative had only moments earlier received his instructions to apply for a stay.
Finally, the Administrators’ legal representative relied on two authorities in support of their application: Australian Securities and Investment Commission v Aviation 3030 Pty Ltd (No 2)[15] and ASIC v A.B.C. Fund Managers Ltd & Ors (No 4).[16] The first of those authorities cited the principles relevant to an application for a stay under the Federal Court Rules 2011 (Cth), being:
First it is not necessary to demonstrate some “special” or “exceptional” reason for the stay… Secondly, there is an onus on the applicant to make out a reason or appropriate case for the discretion to be exercised in its favour… Thirdly, the fact that an appeal will be rendered nugatory if a stay is not granted, is usually regarded as a substantial factor in favour of a stay. This, in turn, requires some assessment to be made to the prospects of success on the appeal… That assessment has been described as: “a preliminary non-speculative assessment of whether the appellant by the grounds of appeal has raised an arguable case…[involving]… a low threshold of arguability”. Fourthly, if the grounds of appeal disclose an arguable case, it is necessary to consider where the balance of convenience lies.[17] (citations omitted)
[15][2019] FCA 391 (O’Callaghan J).
[16][2001] VSC 396 (Warren J).
[17]Australian Securities and Investment Commission v Aviation 3030 Pty Ltd (No 2) (n 15) [7] (O’Callaghan J).
The second authority referred to raises no points of principle.
The plaintiff’s opposed the stay. The plaintiff’s legal representative submitted that:
(a) it was not clear why the Administrators’ legal representative was taking instructions from the Director;
(b) the Director himself had not sought leave of the Court to be heard;
(c) the Court was not informed on any other creditor’s views on whether the stay should be granted; and
(d) the first case relied upon by the Administrators could be distinguished because in that case the regulator, ASIC, did not oppose the stay and in this case the views of the regulator were unknown.
In reply the Administrators’ legal representative reiterated that the Administrators had no intention of convening the second meeting of creditors and would give undertakings to the Court to that effect.
For the following reasons the stay application was refused.
First, the application was made at the last possible opportunity and without notice to the plaintiff or the Court.
Second, to the extent it was made on behalf of the Director, the Director had not sought leave to appear and make the application.[18]
[18]Following the refusal of the stay the Administrators’ legal representative clarified that the stay application had been brought by the Administrators, having been informed that ‘parties interested in the administration were seeking a potential review.’
Third, Administrators did not identify, even in the most general terms, any proposed grounds of appeal of the decision not to grant the adjournment.
Fourth, the argument that any appeal would be rendered nugatory was not articulated in any substance.
Fifth, the application was opposed by the plaintiff who submitted that any further proposal for a DOCA could be considered in the liquidation.
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