ABC Learning Centres Limited, in the matter of ABC Learning Centres Limited; application by Walker (No.7)[2009] FCA 454 cited
Chamberlain, in the matter of South Wagga Sports and Bowling Club Ltd (Administrator Appointed) [2009] FCA 25 cited
In the matter of Global Food Equipment Pty Ltd (Under Administration); Carter v Global Food Equipment Pty Ltd (2007) 25 ACLC 1173; [2007] NSWSC 901 cited In the matter of LED Builders Pty Ltd (Administrators Appointed) [2008] NSWSC 633 cited
Lombe re Australian Discount Retail Pty Ltd [2009] NSWSC 110 cited
BRIAN RAYMOND SILVIA AND MARTIN JOHN GREEN (IN THEIR CAPACITY AS VOLUNTARY ADMINISTRATORS OF AUSTCORP GROUP LIMITED) (ADMINISTRATORS APPOINTED) (ACN 011 042 318), AUSTCORP GROUP LIMITED (ADMINISTRATORS APPOINTED) (ACN 011 042 318), BRIAN RAYMOND SILVIA AND ANDREW JOHN CUMMINS (IN THEIR CAPACITY AS VOLUNTARY ADMINISTRATORS OF AUSTCORP TOWERS INVESTMENT PTY LIMITED (ADMINISTRATORS APPOINTED) (ACN 106 233 078) AND AUSTCORP FUNDS MANAGEMENT LIMITED (ADMINISTRATORS APPOINTED) (ACN 113 412 703) and AUSTCORP TOWERS INVESTMENT PTY LIMITED (ADMINISTRATORS APPOINTED) ACN 113 412 703 AND AUSTCORP FUNDS MANAGEMENT LIMITED (ADMINISTRATORS APPOINTED) (ACN 113 412 703)
NSD 487 of 2009
LINDGREN J 12 JUNE 2009 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 487 OF 2009
IN THE MATTER OF AUSTCORP GROUP LIMITED (ADMINISTRATORS APPOINTED) (ACN 011 042 318); AUSTCORP TOWERS INVESTMENT PTY LIMITED (ADMINISTRATORS APPOINTED) (ACN 106 233 078); AUSTCORP FUNDS MANAGEMENT LIMITED (ADMINISTRATORS APPOINTED) (ACN 113 412 703)
THE APPLICATION OF:
BRIAN RAYMOND SILVIA AND MARTIN JOHN GREEN (IN THEIR CAPACITY AS VOLUNTARY ADMINISTRATORS OF AUSTCORP GROUP LIMITED) (ADMINISTRATORS APPOINTED) (ACN 011 042 318) First Plaintiffs
AUSTCORP GROUP LIMITED (ADMINISTRATORS APPOINTED) (ACN 011 042 318) Second Plaintiff
BRIAN RAYMOND SILVIA AND ANDREW JOHN CUMMINS (IN THEIR CAPACITY AS VOLUNTARY ADMINISTRATORS OF AUSTCORP TOWERS INVESTMENT PTY LIMITED) (ADMINISTRATORS APPOINTED) (ACN 106 233 078) AND AUSTCORP FUNDS MANAGEMENT LIMITED (ADMINISTRATORS APPOINTED) (ACN 113 412 703) Third Plaintiffs
[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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AGLC
Re Austcorp Group Ltd [2009] FCA 636
Case
[2009] FCA 636
Decision Date
CaseChat Overview and Summary
In the matter of Re Austcorp Group Ltd, the court was asked to extend the period within which the administrators of three companies in administration had to convene a meeting of the companies' creditors. The administrators were appointed on 6 May 2009, and under the Corporations Act 2001, they were required to convene a meeting of creditors within 20 business days, which would expire on 3 June 2009. The administrators sought an extension of this period until 30 September 2009. The court was required to decide whether the extension was warranted under the circumstances of the case.
The court considered the nature of the Austcorp Group, which comprises 37 active and 123 dormant companies, with extensive cross-collateralised securities and obligations. The administrators argued that the complexity of the Group and the need for more time to prepare for the creditors' meetings justified the extension. The court found that the circumstances of the case warranted the extension, as the Group's complexity and the amount of debt owed to numerous secured lenders made it necessary to have more time to prepare for the creditors' meetings. The court also noted that the administrators had acted promptly in seeking the extension, and that there was no evidence of any prejudice to the creditors if the extension was granted.
Accordingly, the court made orders extending the convening period for the administrators of the three companies until 30 September 2009. The court also granted liberty to the administrators and any creditor with sufficient interest to apply for further extensions or to vary or discharge the orders. The costs of the application were ordered to be costs of the administration of the relevant company.
Orders
Orders of the court
1. Pursuant to section 439A(6) of the Corporations Act 2001 (Cth) (“the Act”), the period within which the Administrators of the Second Plaintiff must convene a meeting of creditors of the Second Plaintiff under section 439A of the Act is extended up to and including 30 September 2009.
2. Pursuant to section 439A(6) of the Act, the period within which the Administrators of the Fourth Plaintiffs must convene a meeting of creditors of each of the Fourth Plaintiffs under section 439A of the Act is extended up to and including 30 September 2009.
3. Pursuant to section 447A(1) of the Act, Part 5.3A of the Act is to have effect in relation to Austcorp Group Limited (Administrators Appointed) ACN 011 042 318 (the Second Plaintiff) such that the meetings of the creditors of the Second Plaintiff required by section 439A of that Act may be held at any time during, or within 5 business days after the end of, the convening period as extended by Order 1 above notwithstanding the provisions of section 439A(2) of the Act.
4. Pursuant to section 447A(1) of the Act, Part 5.3A of the Act is to have effect in relation to each of Austcorp Towers Investment Pty Limited (Administrators Appointed) ACN 113 412 703 and Austcorp Funds Management Limited (Administrators Appointed) ACN 113 412 703 (the Fourth Plaintiffs) such that the meeting of the creditors of each of the Fourth Plaintiffs required by section 439A of that Act may be held at any time during, or within 5 business days after the end of, the convening period as extended by Order 2 above notwithstanding the provisions of section 439A(2) of the Act.
5. Liberty is granted to the First 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.
6. Liberty is granted to the Third Plaintiffs to apply to the Court for any further extensions of the convening periods referred to in Order 2 at any time prior to 30 September 2009.
7. Liberty to apply is granted to any person including any creditor who can demonstrate sufficient interest to make such application as he, she or it may be advised, to vary or discharge these orders upon 48 hours notice being given to the Plaintiffs and to the Court.
8. The costs and expenses of this Application in respect of the First and Second Plaintiffs are costs and expenses of the Administration of the Second Plaintiff.
9. The costs and expenses of this Application in respect of the Third and each of the Fourth Plaintiffs are costs and expenses of the Administration of that Fourth Plaintiff.
Note:
Background
Background to the litigation
On 28 May 2009 I made orders extending the period within which the administrators of three companies in administration must convene a meeting of the companies’ creditors under s 439A of the Corporations Act 2001 (Cth) (the Act). These are the reasons why I made those orders.FACTS AND LEGISLATION The three companies are part of the Austcorp Group (the Group). They are:·the second plaintiff, Austcorp Group Limited (administrators appointed) (AGL), of which the first plaintiffs, Messrs Silvia and Green are the administrators;·Austcorp Towers Investment Pty Limited (administrators appointed) (ATIPL), one of the fourth plaintiffs, of which the third plaintiffs, Messrs Silvia and Cummins, are the administrators; and·Austcorp Funds Management Limited (administrators appointed) (AFML), also one of the fourth plaintiffs, of which the third plaintiffs, Messrs Silvia and Cummins are also the administrators The plaintiffs appear to have grouped ATIPL and AFML together because Messrs Silvia and Cummins are the administrators of both them of them.In all three cases the administrators were appointed on 6 May 2009. Section 439A(1) of the Act requires the administrator of a company under administration to convene a meeting of the company’s creditors within the “convening period” as fixed by subs (5) or as extended under subs (6) of s 439A. Section 439A(5) defines the convening period. In the circumstances of the present cases, that period was the period of 20 business days beginning on the day after the administration began. The three administrations began on 6 May 2009 (see s 435C(1) of the Act). The next day was 7 May 2009. The period of 20 business days expires on 3 June 2009. Section 439A(6) empowers the Court to extend the convening period on an application made, relevantly, during the 20 business day period. The present application has been made within that period. For the reasons given in the following section, the first and third plaintiffs seek an order extending the convening period up to and including 30 September 2009. Since the present convening period is due to expire on 3 June 2009, the extension sought is a little less than four months. It remains to note that s 439A(2) provides that the meeting must be held within five business days before, or within five business days after, the end of the convening period. The first and third plaintiffs seek an order under s 447A(1) of the Act to permit the three meetings to be held at any time during the convening period as extended or within five business days thereafter. The Group is a large group of companies, comprising 37 active companies and 123 dormant companies. Most of the active companies are special purpose vehicles (SPVs). The Group owns seventeen investment or development properties (real estate). There are extensive cross-collateralised securities and obligations within the Group. In excess of ten secured lenders are owed approximately $550 million. The parent company is Austcorp International Limited (AIL), of which AGL, ATIPL and AFML are wholly owned subsidiaries. ATIPL is the trustee of the Austcorp Towers Investment Trust (ATIT), and AFML is the responsible entity of the Austcorp Towers Trust (ATT) and the Austcorp Property Trust (APT).
Evidence
Evidence Before The Court
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Decision
Reasons for decision
LINDGREN J
I also thought it appropriate to reserve liberty to any creditor to apply.CONCLUSION For the above reasons I made the orders referred to.