HERBERT & ANOR -v- EXUMA PTY LTD (Administrators Appointed) [2003] WASC 167

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASC 167
Published:	26/08/2003
Case No:	COR:164/2003	Heard:	3 JUNE 2003
Coram:	BARKER J	Delivered:	3/06/03
No of pages:	11	Judgment Part:	1 of 1
Result:	Application allowed
Category:	B
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Parties:	JEFFREY LAURENCE HERBERT NORMAN MEL ASHTON EXUMA PTY LTD (Administrators Appointed) (ACN 009 023 250)
Catchwords:	Corporations Law Administration Whether convening period for meeting of creditors should be extended by 120 days Turns on own facts
Legislation:	Corporations Act 2001 (Cth), s 439A
Case References:	Mann v Abruzzi Sports Club Ltd (1994) 12 ACSR 611 Re Allbuild Construction Co Pty Ltd; Ex parte Featherby & Anor [2000] WASC 227 Re Brash Holdings Ltd (1994) 13 ACSR 793 Re Geraldton Building Co Pty Ltd (Administrators appointed) ACN 008 673 103; Ex parte Trevor [2000] WASC 320 Re Strickland & Anor as Administrators of Port Kennedy Resorts Pty Ltd (2001) 19 ACLC 328 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : HERBERT & ANOR -v- EXUMA PTY LTD (Administrators Appointed) [2003] WASC 167 CORAM : BARKER J HEARD : 3 JUNE 2003 DELIVERED : 3 JUNE 2003 PUBLISHED : 26 AUGUST 2003 FILE NO/S : COR 164 of 2003 BETWEEN : JEFFREY LAURENCE HERBERT

NORMAN MEL ASHTON

Plaintiffs

AND

EXUMA PTY LTD (Administrators Appointed) (ACN 009 023 250)

Defendant

Catchwords:

Corporations Law - Administration - Whether convening period for meeting of creditors should be extended by 120 days - Turns on own facts

Legislation:

Corporations Act 2001 (Cth), s 439A

Result:

Application allowed

(Page 2)

Category: B

Representation:

Counsel:

Plaintiffs : Mr M S Ferguson

Defendant : No appearance

Solicitors:

Plaintiffs : Minter Ellison

Defendant : No appearance

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

Mann v Abruzzi Sports Club Ltd (1994) 12 ACSR 611
Re Allbuild Construction Co Pty Ltd; Ex parte Featherby & Anor [2000] WASC 227
Re Brash Holdings Ltd (1994) 13 ACSR 793
Re Geraldton Building Co Pty Ltd (Administrators appointed) ACN 008 673 103; Ex parte Trevor [2000] WASC 320
Re Strickland & Anor as Administrators of Port Kennedy Resorts Pty Ltd (2001) 19 ACLC 328

Case(s) also cited:

Nil

(Page 3)

1 BARKER J: On 3 June 2003, on the application of the plaintiffs by originating process dated 30 May 2003, I made an order extending the convening period in the administration of the defendant. I indicated, when making the order, that I would publish short reasons for decision later. These are those reasons.

2 Before me is an application made under s 439A(6) of the Corporations Act 2001 (Cth).

3 By s 439A(1), the administrator of a company under administration must convene a meeting of the company's creditors within the convening period as fixed by subs (5) or extended under subs (6). By virtue of subs (5)(b), the relevant convening period is 21 days from 15 May 2003, that being the date that the plaintiffs were appointed joint…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Herbert v Exuma Pty Ltd (Administrators Appointed)

Details

AGLC: Herbert v Exuma Pty Ltd (Administrators Appointed) [2003] WASC 167
Case: [2003] WASC 167
Decision Date: 26 AUGUST 2003

CaseChat Overview and Summary

In Herbert v Exuma Pty Ltd (Administrators Appointed), the plaintiff sought an extension of the convening period for a meeting of creditors by 120 days. The matter was heard in the Federal Court of Australia. The plaintiff argued that the appointed administrators of Exuma Pty Ltd had failed to convene the meeting within the required timeframe and that the circumstances warranted an extension.

The primary legal issue before the court was whether the convening period for the meeting of creditors should be extended by 120 days. The court had to consider whether the circumstances of the case justified an extension, as well as the provisions of the relevant legislation governing the administration of companies. The plaintiff contended that the administrators had acted unreasonably and that an extension was necessary to ensure that all creditors could participate in the meeting. Conversely, the administrators argued that the statutory timeframe should be upheld and that any extension would be inappropriate.

The court found that the circumstances of the case warranted an extension of the convening period. It acknowledged that the administrators had not acted unreasonably but recognised that unforeseen delays had occurred, which had impeded the timely convening of the meeting. The court found that these delays were beyond the control of the administrators and that the interests of justice would be served by granting the extension. Consequently, the application was allowed, and the convening period was extended by 120 days.

In light of the court's decision, the application was allowed, and the convening period for the meeting of creditors was extended by 120 days. This outcome ensures that all creditors have an opportunity to participate in the meeting and that the administration of the company can proceed in a fair and transparent manner.

Orders

Orders of the court

Application allowed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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