Henry Walker Eltin Group Limited (Administrators Appointed); ACN 007 710 483, In the matter of
[2006] FCA 353
•2 MARCH 2006
FEDERAL COURT OF AUSTRALIA
Henry Walker Eltin Group Limited (Administrators Appointed)
ACN 007 710 483, In the matter of [2006] FCA 353IN THE MATTER OF HENRY WALKER ELTIN GROUP LIMITED (ADMINISTRATORS APPOINTED) ACN 007 710 483 AND CAPENA IO PTY LIMITED (FORMERLY HWIO PTY LIMITED) ACN 072 445 179, CAPENA SURFACE MINING PTY LIMITED (FORMERLY ELTIN SURFACE MINING PTY LIMITED) ACN 062 450 113, CAPENA CONTRACTING PTY LIMITED (FORMERLY HENRY WALKER ELTIN CONTRACTING PTY LIMITED) ACN 009 625 138, CAPENA ENVIRONMENTAL PTY LIMITED (FORMERLY HENRY WALKER ENVIRONMENTAL PTY LIMITED) ACN 009 627 490, CAPENA UNDERGROUND PTY LIMITED (FORMERLY HENRY WALKER UNDERGROUND PTY LIMITED) ACN 007 649 274)
NSD410 OF 2006
EMMETT J
2 MARCH 2006
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD410 OF 2006
IN THE MATTER OF HENRY WALKER ELTIN GROUP LIMITED (ADMINISTRATORS APPOINTED) ACN 007 710 483 AND CAPENA IO PTY LIMITED (FORMERLY HWIO PTY LIMITED) ACN 072 445 179, CAPENA SURFACE MINING PTY LIMITED (FORMERLY ELTIN SURFACE MINING PTY LIMITED) ACN 062 450 113, CAPENA CONTRACTING PTY LIMITED (FORMERLY HENRY WALKER ELTIN CONTRACTING PTY LIMITED) ACN 009 625 138, CAPENA ENVIRONMENTAL PTY LIMITED (FORMERLY HENRY WALKER ENVIRONMENTAL PTY LIMITED) ACN 009 627 490, CAPENA UNDERGROUND PTY LIMITED (FORMERLY HENRY WALKER UNDERGROUND PTY LIMITED) ACN 007 649 274)
ANTHONY GREGORY MCGRATH
SCOTT BRADLEY KERSHAWJOSEPH DAVID HAYES AND SHAUN ROBERT FRASER
(IN THEIR CAPACITY AS VOLUNTARY ADMINISTRATORS OF:
HENRY WALKER ELTIN GROUP LIMITED (ADMINISTRATORS APPOINTED)
ACN 007 710 483
CAPENA IO PTY LIMITED (FORMERLY HWIO PTY LIMITED) ACN 072 445 179
CAPENA SURFACE MINING PTY LIMITED (FORMERLY ELTIN SURFACE MINING PTY LIMITED) ACN 062 450 113
CAPENA CONTRACTING PTY LIMITED (FORMERLY HENRY WALKER ELTIN CONTRACTING PTY LIMITED) ACN 009 625 138
CAPENA ENVIRONMENTAL PTY LIMITED (FORMERLY HENRY WALKER ENVIRONMENTAL PTY LIMITED)
ACN 009 627 490
CAPENA UNDERGROUND PTY LIMITED (FORMERLY HENRY WALKER UNDERGROUND PTY LIMITED)
ACN 007 649 274)FIRST APPLICANTS
HENRY WALKER ELTIN GROUP LIMITED (ADMINISTRATORS APPOINTED) ACN 007 710 483
CAPENA IO PTY LIMITED (FORMERLY HWIO PTY LIMITED) ACN 072 445 179
CAPENA SURFACE MINING PTY LIMITED (FORMERLY ELTIN SURFACE MINING PTY LIMITED) ACN 062 450 113
CAPENA CONTRACTING PTY LIMITED (FORMERLY HENRY WALKER ELTIN CONTRACTING PTY LIMITED) ACN 009 625 138
CAPENA ENVIRONMENTAL PTY LIMITED (FORMERLY HENRY WALKER ENVIRONMENTAL PTY LIMITED)
ACN 009 627 490
CAPENA UNDERGROUND PTY LIMITED (FORMERLY HENRY WALKER UNDERGROUND PTY LIMITED) ACN 007 649 274
SECOND APPLICANTS
JUDGE:
EMMETT J
DATE OF ORDER:
2 MARCH 2006
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Leave be granted to the applicants to file an originating process in the form initialled by Emmett J.
2.Pursuant to sections 447A(1) and 447D(1) of the Corporations Act 2001 (“the Act”) the reconvened adjourned second meetings of creditors of each of the Second Applicants convened pursuant to section 439A of the Act and to be held in Perth on Friday 3 March 2006 (“the Meetings”) will be validly held if Shaun Robert Fraser, one of the joint and several Administrators of the Second Applicants, presides at and chairs the meetings and exercises all powers available to the chair of the meeting including, but not limited to, the power to open each of the meetings and to exercise the powers granted to a chairperson pursuant to the Act and the Corporations Regulations.
3.Costs and expenses of this proceeding be costs and expenses of the administrations of the Second Applicants.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD410 OF 2006
IN THE MATTER OF HENRY WALKER ELTIN GROUP LIMITED (ADMINISTRATORS APPOINTED) ACN 007 710 483 AND CAPENA IO PTY LIMITED (FORMERLY HWIO PTY LIMITED) ACN 072 445 179, CAPENA SURFACE MINING PTY LIMITED (FORMERLY ELTIN SURFACE MINING PTY LIMITED) ACN 062 450 113, CAPENA CONTRACTING PTY LIMITED (FORMERLY HENRY WALKER ELTIN CONTRACTING PTY LIMITED) ACN 009 625 138, CAPENA ENVIRONMENTAL PTY LIMITED (FORMERLY HENRY WALKER ENVIRONMENTAL PTY LIMITED) ACN 009 627 490, CAPENA UNDERGROUND PTY LIMITED (FORMERLY HENRY WALKER UNDERGROUND PTY LIMITED) ACN 007 649 274)
ANTHONY GREGORY MCGRATH
SCOTT BRADLEY KERSHAWJOSEPH DAVID HAYES AND SHAUN ROBERT FRASER
(IN THEIR CAPACITY AS VOLUNTARY ADMINISTRATORS OF:
HENRY WALKER ELTIN GROUP LIMITED (ADMINISTRATORS APPOINTED)
ACN 007 710 483
CAPENA IO PTY LIMITED (FORMERLY HWIO PTY LIMITED) ACN 072 445 179
CAPENA SURFACE MINING PTY LIMITED (FORMERLY ELTIN SURFACE MINING PTY LIMITED) ACN 062 450 113
CAPENA CONTRACTING PTY LIMITED (FORMERLY HENRY WALKER ELTIN CONTRACTING PTY LIMITED) ACN 009 625 138
CAPENA ENVIRONMENTAL PTY LIMITED (FORMERLY HENRY WALKER ENVIRONMENTAL PTY LIMITED)
ACN 009 627 490
CAPENA UNDERGROUND PTY LIMITED (FORMERLY HENRY WALKER UNDERGROUND PTY LIMITED)
ACN 007 649 274)FIRST APPLICANTS
HENRY WALKER ELTIN GROUP LIMITED (ADMINISTRATORS APPOINTED) ACN 007 710 483
CAPENA IO PTY LIMITED (FORMERLY HWIO PTY LIMITED) ACN 072 445 179
CAPENA SURFACE MINING PTY LIMITED (FORMERLY ELTIN SURFACE MINING PTY LIMITED) ACN 062 450 113
CAPENA CONTRACTING PTY LIMITED (FORMERLY HENRY WALKER ELTIN CONTRACTING PTY LIMITED) ACN 009 625 138
CAPENA ENVIRONMENTAL PTY LIMITED (FORMERLY HENRY WALKER ENVIRONMENTAL PTY LIMITED)
ACN 009 627 490
CAPENA UNDERGROUND PTY LIMITED (FORMERLY HENRY WALKER UNDERGROUND PTY LIMITED) ACN 007 649 274
SECOND APPLICANTS
JUDGE:
EMMETT J
DATE:
2 MARCH 2006
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The first applicants were appointed as joint and several voluntary administrators of the second applicants on 1 February 2005. The first applicants include Mr Scott Bradley Kershaw and Mr Shaun Robert Fraser. The meetings required by the Corporations Act 2001 (Cth) (‘the Act’) to be convened were held on 8 July 2005 and 3 November 2005. At the meetings Mr Kershaw presided. The meetings were adjourned and are to be reconvened tomorrow, 3 March 2006.
The circumstances in which the adjournments took place are not presently relevant, although there is evidence as to those circumstances before the Court. The meetings are to be held in Perth. Mr Kershaw is indisposed because of a back problem which renders it undesirable for him to travel from Sydney, where he resides, to Perth in order to chair the meeting on 3 March 2006. It is proposed, therefore, that Mr Fraser, one of the administrators, will preside and chair the adjourned meetings. The administrators, however, are concerned as to the effect of the Act and the Corporations Regulations (‘the Regulations’).
Section 439B(1) of the Act provides that at a meeting convened under s 439A, as these meetings were, the administrator is to preside. Section 451A(1) provides that, where a provision of the Act provides for an administrator of a company to be appointed, two or more persons may be appointed as administrators. Section 451A(2)(a) then provides that, where there are two or more administrators of a company, a function or power of an administrator of the company may be performed or exercised by any one of them, except so far as the instrument or resolution appointing them otherwise provides. There is no such other provision in the present case.
The matter that causes concern is the operation of Regulation 5.6.17. Regulation 5.6.17(1)(c) relevantly provides that, if a meeting is convened by an administrator of a company under administration or of a deed of a company arrangement, that person, or a person nominated by that person, must chair the meeting. The concern is that the effect of that regulation is to require that Mr Kershaw, and only Mr Kershaw, chair the adjourned meeting since he chaired the meeting when it was originally convened.
I do not consider that that is the effect of Regulation 5.6.17. On one view, the regulation is inconsistent with s 439B(1). The latter section requires that the administrator preside at a meeting convened under s 439A. Regulation 5.6.17(1)(c), however, contemplates that a person nominated by the administrator may chair the meeting. Whether or not there is inconsistency, I would not construe Regulation 5.6.17 as requiring that the same individual who chaired a meeting must also chair the adjourned meeting. Regulation 5.6.17 itself contemplates that a person nominated by the convenor may chair the meeting.
In the circumstances, I do not consider that there is any impediment to Mr Fraser chairing the adjourned meeting in Perth tomorrow. Nevertheless, the administrators, McGrath Nicol + Partners, have applied to the Court either for an order under s 447A of the Act or for directions under s 447D of the Act in relation to the matter.
Section 447A(1) provides that the Court may make such order as it think appropriate about how Part 5.3A of Chapter 5 is to operate in relation to a particular company. Section 447D(1) provides that the administrator of a company under administration may apply to the court for directions about a matter arising in connection with the performance or exercise of any of the administrator’s functions and powers.
In the circumstances, I am prepared to order pursuant to ss 447A(1) and 447D(1) that the reconvened adjourned second meetings of creditors of each of the second applicants will be validly held if Sean Robert Fraser, one of the joint and several administrators of the second applicants, presides at and chairs the meetings and exercises all powers available to the chair of the meeting, including but not limited to the power to open each of the meetings and to exercise the powers granted to a chair person pursuant to the Act and the Regulations. I am also prepared to direct that the costs of this application be treated as costs and expenses of the administration of the second applicants.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate:
Dated: 3 April 2006
Counsel for the Applicants: Mr R Scruby Solicitor for the Applicants: Kemp Strang Date of Hearing: 2 March 2006 Date of Judgment: 2 March 2006
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