Lakeside Village Pty Ltd (Admin Apptd)

[2004] NSWSC 378

CITATION:	Lakeside Village Pty Ltd (Admin Apptd) [2004] NSWSC 378
HEARING DATE(S):	4 May 04
JUDGMENT DATE:	4 May 2004
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Order made permitting administrators to convene meeting prior to the period of five business days after the end of the convening period.
CATCHWORDS:	CORPORATIONS [178] - Voluntary administration - General power to make orders - Order permitting administrators to convene meeting prior to the period of five business days after the end of the convening period.
LEGISLATION CITED:	Corporations Act 2001 (Cth) ss 439A(6), 447A
CASES CITED:	Australasian Memory Pty Limited v Brien (2000) 200 CLR 270 Re Brash's Pty Limited (Subject to Deed of Company Arrangement) (1994) 13 ACLC 110
PARTIES :	Lakeside Village Pty Ltd (Admin Apptd) (P)
FILE NUMBER(S):	SC 2684/04
COUNSEL:	C D Wood (P)
SOLICITORS:	Minter Ellison (P)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

TUESDAY, 4 MAY 2004

2684/04 LAKESIDE VILLAGE PTY LIMITED (Administrators Appointed)

JUDGMENT

1 HIS HONOUR: This is an application for the extension of the convening period of the second meeting of creditors of a number of companies in a group made under s 439A(6) of the Corporations Act 2001 (Cth) (“the CA”). The reasons given in support of the orders sought have been summarised by Mr C D Wood, of counsel for the administrators, as follows:

1 The companies are members of a group of companies, which has added to the complexity of the administration.

2 The administrators "went in over the top of receivers" [to use his colourful phrase], that is, there were already receivers appointed by the secured creditor in the companies when the administration commenced.

3 There has been a late suggestion of a Deed of Company Arrangement (“DCA”).

4 Questions have recently arisen of "step in rights" entitling the secured creditor to transfer certain property to itself. This has only just occurred. The form of the “step in rights” appears to be an option which, it is said, the secured creditor has to acquire certain land owned by one of the companies.

The relevant evidence is in an affidavit of Mr Pogroske, one of the administrators, which deposes to the above matters. In particular, it deposes in a little detail to delays that have occurred, not through the administrators' fault, in dealing with the receivers.

2 Mr Wood has submitted that, on the evidence, the administrators are justified in the stance they take that they are unable to advise creditors adequately, at this stage, about the interplay between the rights of the creditors generally and the secured creditor, including the alleged “step in rights”, and they are unable to advise the creditors about the benefits of the now proposed DCA. These appear to me conventional and good reasons for granting the extension sought, and I propose to do so. A letter has been tendered marked Ex A from the secured creditor, which is obviously intimately involved in a number of matters under consideration, consenting to the extension of the convening period.

3 I am also asked for an order permitting the administrators to convene the meeting prior to the period of five business days after the end of the convening period, so that the meeting does not have to wait that long if the administrators are in a position to give the appropriate advice before that time. In supporting this order, Mr Wood has drawn my attention to the generality of the powers of the Court under s 447A of the CA: see the decision of Hayne J, then a Judge of the Supreme Court of Victoria, in Re Brash's Pty Limited (Subject to Deed of Company Arrangement) (1994) 13 ACLC 110 at 115 and the decision of the High Court in Australasian Memory Pty Limited v Brien (2000) 200 CLR 270 at 279. The course proposed is a course which has been followed in a number of cases by Judges of this Division, including myself. It seems an appropriate course and I propose to make that order also. I shall add it to the orders in the short minutes.

4 I make the following orders:

1 I grant leave to the plaintiff to file the originating process initialled by me returnable on 4 May 2004 at 10.30 am before me.

2 I dispense with service of the originating process.

3 There will be orders in accordance with the short minutes initialled by me and placed with the papers.

4 I direct that Ex A be returned.

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Last Modified: 08/06/2004