Malanos re Tripac International Pty Ltd

[2005] NSWSC 194

CITATION:	Malanos re Tripac International Pty Ltd [2005] NSWSC 194
HEARING DATE(S):	10 February 2005
JUDGMENT DATE :	10 February 2005
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Relief under s 447A of Corporations Act 2001 (Cth) granted.

CATCHWORDS:	CORPORATIONS [176] - Voluntary administration - Jurisdiction and powers of Court - General power to make orders - Power to make such order as it thinks appropriate - Adjournment sought of creditors' meeting where further adjournment not possible under s 439B.
LEGISLATION CITED:	Corporations Act 2001 (Cth) ss 439B, 447A
CASES CITED:	Cawthorn v Keira Constructions Pty Ltd NSWSC 5 May 1994 Young J unreported Re Macquarie Medical Holdings [2003] NSWSC 277
PARTIES:	Nicholas Craig Malanos (P1) Adam Shepard (P2) Tripac International Pty Limited (P3)
FILE NUMBER(S):	SC 1448/05
COUNSEL:	M Rosenblatt (Solicitor) (Ps)
SOLICITORS:	Abbott Tout (Ps)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

THURSDAY, 10 FEBRUARY 2005

1448/05 IN THE APPLICATION OF NICHOLAS CRAIG MALANOS & ORS

JUDGMENT

1 HIS HONOUR: This is an application under s 447A of the Corporations Act 2001 (Cth) (“the CA”). The time limit in s 439B(2) of the CA is about to expire, so that the meeting convened under s 439A which has been adjourned until tomorrow cannot be further adjourned by reason of the prohibition in s 439B(2) unless the relief sought is granted under s 447A.

2 Relief under s 447A is available in circumstances such as the present and was recently granted by Campbell J in Re Macquarie Medical Holdings [2003] NSWSC 277. His Honour at [11] gathered the authorities which justified this course. See also the decision of Young J (as his Honour then was) in Cawthorn v Keira Constructions Pty Ltd NSWSC 5 May 1994 unreported.

3 The factual situation here is that the directors of the company, who had not previously brought forward a scheme which might found a DOCA have brought forward at the eleventh hour proposals which raise the possibility of a DOCA which may yield the creditors something. In those circumstances, subject to what follows about the views of the creditors, it seems to me advantageous to make an order permitting that possibility to be further explored if it is thought appropriate.

4 As I say, the attitude of the creditors is a matter to be considered on an application such as the present. It has not been possible to ascertain that attitude before the application being brought today. But the existing creditors’ meeting stands adjourned until tomorrow. The relief as framed authorises the adjournment for a further period, but makes that adjournment subject to a resolution of the creditors at the adjourned meeting tomorrow. This appears to me to protect the creditors’ interests adequately and to ensure a course in accordance with their wishes. In those circumstances I propose to grant the relief sought. I make the following orders:

(1) I grant leave to the plaintiffs to file an originating process initialled by me returnable on 10 February 2005 at 3 pm before the Duty Judge.
(2) I dispense with service of the originating process.
(3) I make orders in terms of prayers 1 and 2 of the originating process.
(4) I direct that the order made by order 3 be entered forthwith.

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