Hughes, in the matter of Parkhurst Farms Pty Ltd (Administrators Appointed)
[2017] FCA 1596
•7 December 2017
FEDERAL COURT OF AUSTRALIA
Hughes, in the matter of Parkhurst Farms Pty Ltd (Administrators Appointed) [2017] FCA 1596
File number: QUD 685 of 2017 Judge: REEVES J Date of judgment: 7 December 2017 Catchwords: CORPORATIONS – voluntary administration – extension of convening period for creditors’ meeting under s 493AA(6) of the Corporations Act 2001 (Cth) – where creditor and directors consented to extension of convening period – where administrators sought various orders including when creditors meeting may be held, manner of giving notices of the meeting, and the requirement to give notice to creditors and Australian Securities and Investments Commission
Held: application granted
Legislation: Corporations Act 2001 (Cth)
Insolvency Practice Rules (Corporations) 2016 (Cth)
Cases cited: Re Riviera Group Pty Ltd (admins apptd) (recs and mgrs apptd) ACN 102 298 279 (2009) 72 ACSR 352; [2009] NSWSC 585 Date of hearing: 7 December 2017 Registry: Queensland Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: Catchwords Number of paragraphs: 7 Solicitor for the Plaintiff: Mr M Ziebell of King and Wood Mallesons ORDERS
QUD 685 of 2017 IN THE MATTER OF PARKHURST FARMS PTY LTD (ADMINISTRATORS APPOINTED) (ACN 072 605 880) AND YARRA STATION PTY LTD (ADMINISTRATORS APPOINTED) (ACN 069 246 402)
RICHARD HUGHES AND SALVATORE ALGERI IN THEIR CAPACITY AS JOINT AND SEVERAL ADMINISTRATORS OF PARKHURST FARMS PTY LTD (ADMINISTRATORS APPOINTED) (ACN 072 605 880) AND YARRA STATION PTY LTD (ADMINISTRATORS APPOINTED) (ACN 069 246 402)
Plaintiffs
JUDGE:
REEVES J
DATE OF ORDER:
7 DECEMBER 2017
THE COURT ORDERS THAT:
1.Pursuant to s 439A(6) of the Corporations Act 2001 (Cth) (“Corporations Act”) that the period within which the plaintiffs must convene the second meetings of creditors in respect of each of Parkhurst Farms Pty Ltd (Administrators Appointed) (ACN 072 605 880) and Yarra Station Pty Ltd (Administrators Appointed) (ACN 069 246 402) (together, the “Companies”) under section 439A of the Corporations Act (“Second Meetings”) be extended to midnight on 12 March 2018.
2.Pursuant to s 447A(1) of the Corporations Act that Part 5.3A of the Corporations Act operates in relation to each of the Companies such that the Second Meetings may be held together or separately and at any time during the period up to, or within 5 business days after the end of, the convening period as extended by the Court, notwithstanding section 439A(2) of the Corporations Act.
3.Pursuant to s 447A(1) of the Corporations Act that Part 5.3A of the Corporations Act operates in relation to each of the Companies such that notice of the Second Meetings required to be given pursuant to rr 75-225(1) and 75-15 of the Insolvency Practice Rules (Corporations) 2016 (Cth) (“Insolvency Rules”) (“Notice”) will be validly given to creditors of the Companies by:
(a)sending the Notice by email to the email address of each creditor at such email address as is:
(i)recorded in the books and records of the Companies; or
(ii)last known to the plaintiffs;
(b)where an email address of a creditor is not recorded in the books and records of the Companies, sending the Notice by post to the postal address of the creditor at such postal address as is:
(i)recorded in the books and records of the Companies; or
(ii)last known to the plaintiffs;
(c)providing notice of the date, time and location of the Second Meetings in the Notice; and
(d)providing with the Notice, a paper or electronic copy of the reports required to be given to creditors of the Companies pursuant to r 75-225(3) of the Insolvency Rules; and
(e)causing such notice to be published on the Insolvency Notices website located at: https:insolvencynotices.asic.gov.au/.
4.Pursuant to s 447A(1) of the Corporations Act that Part 5.3A of the Corporations Act operates in relation to each of the Companies as though r 75-225(3) of the Insolvency Rules provides that the Creditor Reports to accompany the Notice may be validly given to creditors of the Companies by providing a paper or electronic copy of the Creditor Reports in accordance with the orders sought in paragraph 3 of this application.
5.Pursuant to s 447A(1) of the Corporations Act that Part 5.3A of the Corporations Act operates in relation to each of the Companies such that:
(a)all future notices, reports and communications that the plaintiffs may or must give or send to creditors of the Companies may be given or sent in accordance with the procedures described in paragraphs 3 and 4 of this application; and
(b)a notice sent to a creditor in accordance with the procedures described in paragraph 3 of this application is taken to be given on the business day after it is sent.
6.The plaintiffs give notice to the following parties of the orders made by the Court in this application and any other applications or orders filed or made in the administration of the Companies within 7 days after the date that the application is filed or the order is made (as applicable):
(a)the Australian Securities & Investments Commission (“ASIC”); and
(b)all known creditors of the Companies in accordance with the procedures described in paragraph 3 of this application.
7.The following parties have liberty to apply on giving all other interested parties not less than 3 business days’ notice:
(a)any person who can demonstrate sufficient interest (including ASIC or any creditor of a Company) for the purpose of modifying or discharging any of the orders sought in paragraphs 1 and 2 above;
(b)the plaintiffs for any purpose connected with the administration of the Companies, including (but not limited to) seeking any further extension of the convening period or seeking orders about their remuneration, notwithstanding rr 9.2(2) to 9.2(5) of the Federal Court (Corporations) Rules 2000 (Cth) which will not apply.
8.The costs of this application be costs and expenses in the administration of the Companies and be paid out of the assets of the Companies.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
REEVES J:
The plaintiffs are the Administrators appointed to two companies, Parkhurst Farms Pty Ltd and Yarra Station Pty Ltd. They were appointed by resolutions passed by the companies’ board of directors on 13 November 2017. Suncorp Bank is the largest creditor of the companies. It holds security over both the Little River farm and the Yarra land farms owned by the companies. The convening period under s 439A(5) of the Corporations Act 2001 (Cth) (the Act) for the meeting of creditors is due to expire next Monday, 11 December 2017.
In this application, the plaintiffs have applied to extend that convening period by three months, that is, to 12 March 2018.
In Re Riviera Group Pty Ltd (admins apptd) (recs and mgrs apptd) ACN 102 298 279 (2009) 72 ACSR 352; [2009] NSWSC 585 at [13]–[14], Austin J discussed the circumstances in which it was appropriate to extend the convening period and identified 11 categories of cases where that may appropriately occur. They included the following:
(a)lack of access to corporate financial records; and
(b)the time needed for a thorough assessment of a proposed deed of company of arrangement.
In this application, Mr Ziebell, on behalf of the Administrators, has advanced three broad reasons why the convening period should be extended. They are: first, that Mr and Mrs Kyriazis, the directors of the companies, intend to put forward a proposed deed of company arrangement which the Administrators wish to assess; secondly, there are various complexities in the administration including difficulties obtaining the companies’ accounts and other records from their accountants, issues associated with the ownership of the assets of the companies, the existence of Family Law Court proceedings between Mr and Mrs Kyriazis, and the intervening Christmas/New Year period; and thirdly, Mr Ziebell has submitted that no prejudice will be suffered by any relevant party. In particular, he has pointed out that Suncorp has consented to the extension and Mr and Mrs Kyriazis support the extension.
I should note that Mr Ziebell advised that the Australian Securities and Investments Commission (ASIC) had been notified and did not oppose the application.
I am satisfied on the materials – and based on the reasons outlined by Mr Ziebell – that it is appropriate to grant the extension of time under s 493AA(6) of the Act extending the convening period for the meeting of creditors from 11 December 2017 to 12 March 2018. In addition to this extension of time order, the Administrators have sought various orders under s 447A of the Act in relation to the companies including orders dealing with when the creditors meeting may be held, the manner of giving notices in relation to that meeting and other issues, a requirement to give notice to the creditors and ASIC of these orders and orders relating to leave to apply. In all the circumstances, I am satisfied that it is appropriate to make those orders.
Accordingly, I make the eight orders set out in the draft orders put forward by the Administrators noting that proposed Order 3(d) should be amended to change s 439A(4) of the Act to r 75-225(3) of the Insolvency Practice Rules (Corporations) 2016 (Cth).
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves. Associate:
Dated: 20 December 2017
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