PETER WALKER & GREGORY MOLONEY (IN THEIR CAPACITY AS VOLUNTARY ADMINISTRATORS OF ABC LEARNING CENTRES LIMITED (ADMINISTRATORS APPOINTED) (RECEIVERS & MANAGERS APPOINTED) & THE COMPANIES LISTED IN SCHEDULE 1 and ABC LEARNING CENTRES LIMITED (ADMINISTRATORS APPOINTED) (RECEIVERS & MANAGERS APPOINTED) & THE COMPANIES LISTED IN SCHEDULE 1
NSD 1846 of 2008
EMMETT J
20 MARCH 2009
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1846 of 2008
PETER WALKER & GREGORY MOLONEY (IN THEIR CAPACITY AS VOLUNTARY ADMINISTRATORS OF ABC LEARNING CENTRES LIMITED (ADMINISTRATORS APPOINTED) (RECEIVERS & MANAGERS APPOINTED) & THE COMPANIES LISTED IN SCHEDULE 1 First Plaintiff
ABC LEARNING CENTRES LIMITED (ADMINISTRATORS APPOINTED) (RECEIVERS & MANAGERS APPOINTED) & THE COMPANIES LISTED IN SCHEDULE 1 Second Plaintiff
JUDGE:
EMMETT J
DATE OF ORDER:
20 MARCH 2009
WHERE MADE:
SYDNEY
THE COURT DIRECTS THAT:
1.Pursuant to s 447D of the Corporations Act 2001 (Cth) (the Act), the First Plaintiffs shall give notice of these Orders by publishing a copy of these Orders on their website, within 2 business days of the making of these Orders.
THE COURT ORDERS THAT:
2.Pursuant to s 447A(1) of the Act, Part 5.3A of the Act is to have effect in relation to each of ABC Learning Centres Limited (Administrators Appointed) (Receivers and Managers Appointed) and each of the companies listed in the Schedule to these Orders such that the period within which the First Plaintiffs must convene meetings of creditors under s 439A of the Act is extended up to and including 30 September 2009.
3.Pursuant to s 447A(1) of the Act, Part 5.3A of the Act is to have effect in relation to each of ABC Learning Centres Limited (Administrators Appointed) (Receivers and Managers Appointed) and each of the companies listed in the Schedule to these Orders such that the meetings of creditors that are required by s 439A of that Act may be held at any time during the period up to, or within 5 business days after the end of, 30 September 2009, notwithstanding the provisions of s 439(2) of the Act.
4.Liberty is granted to the Plaintiffs to apply to the Court for any further extensions of the convening period referred to in Order 1 at any time prior to 30 September 2009.
5.Liberty to apply to is granted to any person, including any creditor of any of the Second Plaintiffs or the Australian Securities and Investments Commission, who can demonstrate sufficient interest to make such application as he, she, or it may be advised, to vary or discharge these Orders on 48 hours notice being given to the Plaintiffs and to the Court.
6.The costs and expenses of this Application are costs and expenses of the administration of ABC Learning Centres Limited (Administrators Appointed) (Receivers and Managers Appointed) and the companies listed in the Schedule to…
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.
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Details
AGLC
Re ABC Learning Centres Ltd; Application by Walker (No 7) [2009] FCA 454
Case
[2009] FCA 454
Decision Date
CaseChat Overview and Summary
The case of Re ABC Learning Centres Ltd; Application by Walker (No 7) involved an application to the Supreme Court of New South Wales concerning the extension of certain periods under the Corporations Act 2001 (Cth) in relation to ABC Learning Centres Limited and its subsidiaries. The application was brought by the plaintiffs seeking to extend the time within which meetings of creditors must be convened and held. The defendants in the application were ABC Learning Centres Limited and its subsidiaries, with the application being brought under the insolvency provisions of the Act.
The legal issues before the court centred around the interpretation and application of sections 439A, 439(2), and 447A of the Corporations Act 2001 (Cth). Specifically, the court had to determine whether the extended periods for convening and holding creditors' meetings could be granted and if the meetings could be held beyond the initially prescribed dates without contravening the statutory requirements. The court also had to consider the implications of granting such extensions and whether it was in the interests of the creditors and the administration of the companies.
In its decision, the court held that it was appropriate to extend the periods for convening and holding creditors' meetings under the given circumstances. The court found that the interests of the creditors and the orderly administration of the companies would be best served by granting the extensions. The court further ruled that the extended periods should be set to 30 September 2009 and that meetings could be held up to 5 business days after this date. The court also allowed for further applications for extensions and granted liberty to any interested party to apply to vary or discharge the orders. The costs of the application were ordered to be costs of the administration. The directions hearing was vacated, and the proceeding was listed for further directions.
The final orders granted the plaintiffs' application for an extension of the convening period for creditors' meetings, allowed for further extensions, permitted interested parties to apply to vary or discharge the orders, and directed the costs of the application to be borne by the administration.
Orders
Orders of the court
2. Pursuant to s 447A(1) of the Act, Part 5.3A of the Act is to have effect in relation to each of ABC Learning Centres Limited (Administrators Appointed) (Receivers and Managers Appointed) and each of the companies listed in the Schedule to these Orders such that the period within which the First Plaintiffs must convene meetings of creditors under s 439A of the Act is extended up to and including 30 September 2009.
3. Pursuant to s 447A(1) of the Act, Part 5.3A of the Act is to have effect in relation to each of ABC Learning Centres Limited (Administrators Appointed) (Receivers and Managers Appointed) and each of the companies listed in the Schedule to these Orders such that the meetings of creditors that are required by s 439A of that Act may be held at any time during the period up to, or within 5 business days after the end of, 30 September 2009, notwithstanding the provisions of s 439(2) of the Act.
4. Liberty is granted to the Plaintiffs to apply to the Court for any further extensions of the convening period referred to in Order 1 at any time prior to 30 September 2009.
5. Liberty to apply to is granted to any person, including any creditor of any of the Second Plaintiffs or the Australian Securities and Investments Commission, who can demonstrate sufficient interest to make such application as he, she, or it may be advised, to vary or discharge these Orders on 48 hours notice being given to the Plaintiffs and to the Court.
6. The costs and expenses of this Application are costs and expenses of the administration of ABC Learning Centres Limited (Administrators Appointed) (Receivers and Managers Appointed) and the companies listed in the Schedule to these Orders.
7. The directions hearing listed for 8 May 2009 be vacated.
8. The proceeding be listed for further directions on 29 May 2009.