Re AG Merchant Pty Ltd (Administrators Appointed); [No 2] - [2025] WASC 302

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   RE AG MERCHANT PTY LTD (ADMINISTRATORS APPOINTED); EX PARTE DOMINISH, SHAW AND ALBARRAN [No 2] [2025] WASC 302
CORAM:   HILL J
HEARD:   1 AUGUST 2025
DELIVERED          :   1 AUGUST 2025
PUBLISHED           :   1 AUGUST 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 - External administration - Application by administrators to extend convening period for second creditors' meeting - Whether modification in creditors' interests as a whole - Whether interests of any persons prejudiced by modification protected by terms of orders - Turns on own facts

Corporations - External administration - Where company in administration is bare trustee - Application for appointment of administrators as receivers of trust property - Application for directions that administrators are justified in treating trust property as property of the company - Turns on own facts

Legislation:

Corporations Act 2001 (Cth) s 439A(6), sch 2 s 90-15, s 90-20

Supreme Court Act 1935 (WA) s 25(9)

Result:

Application granted

Category: B

Representation:

Counsel:

First Plaintiff	:	Z Weng
Second Plaintiff	:	Z Weng
Third Plaintiff	:	Z Weng

Solicitors:

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

Cases referred to in decision:

Caterpillar Financial Australia Ltd v Ovens Nominees Pty Ltd [2011] FCA 677
Diamond Press Australia Limited [2001] NSWSC 313
In the matter of Mecfab Holdings Pty Ltd [2015] NSWSC 46
Jones v Matrix Partners Pty Ltd; Re Killarnee Civil & Concrete Contractors Pty Ltd (in liq) [2018] FCAFC 40; (2018) 260 FCR 310
Mighty River International Limited v Hughes [2018] HCA 38
Re AG Merchant Pty Ltd (Administrators Appointed); Ex Parte Dominish, Shaw and Albarran [2025] WASC 286
Shaw and Albarran (Joint and Several Administrators of Home Art Building Group Pty Ltd) v Home Art Building Group Pty Ltd (Administrators Appointed) [2016] WASC 274
Tucker (Administrator) v Bolten (Trustee), in the matter of Quintis Leasing Pty Ltd (Administrators Appointed) (No 2) [2024] FCA 46

HILL J:

On 28 July 2025, the plaintiffs filed an interlocutory process seeking an extension of the convening of the second meeting of AG Merchant Pty Ltd (Company) pursuant to s 439A(6) of the Corporations Act 2001 (Act), for a period of 90 days, until 1 November 2025. Unless an extension is granted by the court, the meeting is required to be convened on or about 12 August 2025 with the meeting to be held on or about 19 August 2025.[1]
[1] Affidavit of Aaron Joseph Dominish filed 28 July 2025 [16].
The plaintiffs also seek orders appointing the plaintiffs as receivers of the assets of the Huisman Property Trust…

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 302
Decision Date: 1 AUGUST 2025

CaseChat Overview and Summary

The case involves AG Merchant Pty Ltd, a company that was in external administration, and its administrators. The administrators applied to the court to extend the convening period for a second creditors' meeting and to be appointed as receivers of trust property, as the company was a bare trustee. The dispute centred on whether the interests of creditors would be adversely affected by the modifications sought by the administrators and whether the interests of any individuals or entities would be prejudiced by these changes. The court was tasked with determining if the interests of creditors as a whole would be negatively impacted and whether the interests of any affected parties were adequately protected.

The legal issues that the court had to decide included whether the proposed modifications to the convening period and the appointment of the administrators as receivers of trust property would be in the best interests of the creditors collectively. The court also needed to assess whether the interests of any individuals or entities who might be prejudiced by these modifications were adequately safeguarded by the terms of the orders sought. These determinations were based on the specific facts of the case, with the court exercising its discretion to decide whether the applications should be granted.

In reaching its decision, the court considered the unique circumstances of the case. It concluded that the proposed modifications to the convening period and the appointment of the administrators as receivers of trust property were in the best interests of the creditors as a whole. The court was satisfied that the interests of any individuals or entities that might be adversely affected by these changes were adequately protected by the terms of the orders sought. The court exercised its discretion and granted the applications, thereby extending the convening period and appointing the administrators as receivers of trust property.

The final orders included an extension of the convening period for the second creditors' meeting and the appointment of the administrators as receivers of the trust property. The court also provided directions that the administrators were justified in treating the trust property as property of the company. These orders were tailored to the specific facts of the case, reflecting the court's consideration of the interests of all stakeholders involved in the external administration of AG Merchant Pty Ltd.

Orders