Re AG Merchant Pty Ltd (Administrators Appointed) - [2025] WASC 286

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   RE AG MERCHANT PTY LTD (ADMINISTRATORS APPOINTED); EX PARTE DOMINISH, SHAW AND ALBARRAN [2025] WASC 286
CORAM:   HILL J
HEARD:   17 JULY 2025
DELIVERED          :   17 JULY 2025
PUBLISHED           :   24 JULY 2025
FILE NO/S:   COR 108 of 2025
MATTER:   IN THE MATTER OF AG MERCHANT PTY LTD (ADMINISTRATORS APPOINTED)

EX PARTE
AARON JOSEPH DOMINISH as administrator of AG MERCHANT PTY LTD (ADMINISTRATORS APPOINTED)
First Plaintiff
CAMERON HUGH SHAW as administrator of AG MERCHANT PTY LTD (ADMINISTRATORS APPOINTED)
Second Plaintiff
RICHARD ALBARRAN as administrator of AG MERCHANT PTY LTD (ADMINISTRATORS APPOINTED)
Third Plaintiff

Catchwords:

Corporations - Voluntary administrator - Whether administrators validly appointed - Purported appointment of administrators after sudden death of sole director - Whether orders should be made under s 447A of the Corporations Act 2001 (Cth) to validate the appointment of the plaintiffs as administrators

Legislation:

Corporations Act 2001 (Cth) s 9AC, s 447A

Result:

Application granted

Category: B

Representation:

Counsel:

First Plaintiff	:	P Edgar SC & J Cook
Second Plaintiff	:	P Edgar SC & J Cook
Third Plaintiff	:	P Edgar SC & J Cook

Solicitors:

First Plaintiff	:	Mendelawitz Morton Commercial Lawyers
Second Plaintiff	:	Mendelawitz Morton Commercial Lawyers
Third Plaintiff	:	Mendelawitz Morton Commercial Lawyers

Cases referred to in decision:

Australian Memory Pty Ltd v Brien [2000] HCA 30; (2000) 200 CLR 270
Calabretta v Redpen Developments Pty Ltd (in liq) (2010) 183 FCR 47
Correa v Whittingham [2013] NSWCA 263; (2013) 278 FLR 310
Hayes v Doran [No 2] [2012] WASC 486
Honest Remark Pty Ltd v Allstate Explorations NL [2006] NSWSC 735; (2006) 234 ALR 765
Hutton, Re Big Village Australia Pty Ltd (Administrators Appointed) [2023] FCA 48
Re Keneally [2015] NSWSC 937
Re New Tel Ltd [2004] FCA 1154; (2004) 210 ALR 270
Re Pasdonnay Pty Ltd (ACN 009 131 622) (admins apptd); McDonald (2005) 53 ACSR 717
Shirlaw v Graham [2001] NSWSC 612
Smolarek v McMaster (as administrator of Eznut Pty Ltd) [2006] WASCA 216

HILL J:

On 16 July 2025, the plaintiffs filed an originating process seeking orders under s 447A(1) of the Corporations Act 2001 (Cth) (Act) to validate their appointment as administrators of AG Merchant Pty Ltd (Company).
On the same date, the plaintiffs filed a certificate of urgency certifying that the application was of such an urgent nature that it was required to be listed at 'the next available opportunity'. The Company is part of the group of companies which trades as 'Kettridges'. An originating process involving Kettridges Pty Ltd, another company within the Kettridges group, was listed for hearing before me on at NB 10.30 am on 17 July 2025 (COR 106 of 2025). Given the urgency of the matter, this originating process was listed before me at the same time.
In support of the application, the plaintiffs relied on affidavit of the second plaintiff, Mr Shaw, filed 16 July 2025, as well as the two affidavits filed…

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

Case: [2025] WASC 286
Decision Date: 24 JULY 2025

CaseChat Overview and Summary

The case involved AG Merchant Pty Ltd, where the administrator was appointed following the sudden death of the sole director. The plaintiffs, who were appointed as administrators, sought orders under section 447A of the Corporations Act 2001 to validate their appointment. The court was tasked with determining whether the plaintiffs were validly appointed as administrators of the company.

The central legal issue was whether the plaintiffs could be considered as validly appointed administrators of AG Merchant Pty Ltd given that the appointment occurred after the sudden death of the sole director. This raised questions about the interpretation and application of section 447A of the Corporations Act, which allows for the validation of appointments made in certain circumstances.

The court examined the circumstances surrounding the appointment and considered the legislative intent behind section 447A. It found that the appointment was made in good faith and under the belief that the director was alive, which aligned with the purpose of the validating provisions. The court held that the plaintiffs were validly appointed as administrators and that the orders sought under section 447A should be granted. This decision affirmed the validity of the administrators' appointment in these exceptional circumstances.

The court made orders validating the appointment of the plaintiffs as administrators of AG Merchant Pty Ltd, confirming their authority to act in that capacity. This decision ensures that the company can continue to be managed effectively despite the sudden change in its leadership structure.

Orders