Re Bayview Health - Matilda Bay Pharmacy Pty Ltd (Administrators Appointed) And Bayview Health North Shore Pharmacy Pty Ltd (Administrators Appointed)
[2025] WASC 404
•30 SEPTEMBER 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: RE BAYVIEW HEALTH - MATILDA BAY PHARMACY PTY LTD (ADMINISTRATORS APPOINTED) AND BAYVIEW HEALTH NORTH SHORE PHARMACY PTY LTD (ADMINISTRATORS APPOINTED); EX PARTE ANDREW MICHAEL SMITH AND ROBERT ALLAN JACOBS [2025] WASC 404
CORAM: HILL J
HEARD: 21 AUGUST 2025
DELIVERED : 21 AUGUST 2025
PUBLISHED : 30 SEPTEMBER 2025
FILE NO/S: COR 128 of 2025
MATTER: IN THE MATTER OF BAYVIEW HEALTH - MATILDA BAY PHARMACY PTY LTD (ADMINISTRATORS APPOINTED) AND BAYVIEW HEALTH NORTH SHORE PHARMACY PTY LTD (ADMINISTRATORS APPOINTED)
EX PARTE
BAYVIEW HEALTH - MATILDA BAY PHARMACY PTY LTD (ADMINISTRATORS APPOINTED) joint and several administrators ANDREW MICHAEL SMITH AND ROBERT ALLAN JACOBS
First Plaintiff
BAYVIEW HEALTH NORTH SHORE PHARMACY PTY LTD (ADMINISTRATORS APPOINTED) joint and several administrators ANDREW MICHAEL SMITH AND ROBERT ALLAN JACOBS
Second Plaintiff
BAYVIEW HEALTH - MATILDA BAY PHARMACY PTY LTD (ADMINISTRATORS APPOINTED)
Third Plaintiff
BAYVIEW HEALTH NORTH SHORE PHARMACY PTY LTD (ADMINISTRATORS APPOINTED)
Fourth Plaintiff
REBECCA KIM GODFREY
Interested Party
SCOTT RUSSELL MCGREGOR
Interested Party
Catchwords:
Corporations - External administration - Application under s 447A(1) of the Corporations Act 2001 to modify pt 5.3A of the Act to extend the time in which an adjourned second meeting of creditors is required to be held - Late receipt of competing proposal - Whether extension ought be granted - Turns on own facts
Legislation:
Corporations Act 2001 (Cth) s 439A, s 447A
Insolvency Practice Rules (Corporations) 2016 (Cth) r 75-140
Result:
Application granted
Category: B
Representation:
Counsel:
| First Plaintiff | : | W C J Zappia & S Waddington |
| Second Plaintiff | : | W C J Zappia & S Waddington |
| Third Plaintiff | : | W C J Zappia & S Waddington |
| Fourth Plaintiff | : | W C J Zappia & S Waddington |
| Interested Party | : | S M Murphy |
| Interested Party | : | S M Murphy |
Solicitors:
| First Plaintiff | : | Corrs Chambers Westgarth |
| Second Plaintiff | : | Corrs Chambers Westgarth |
| Third Plaintiff | : | Corrs Chambers Westgarth |
| Fourth Plaintiff | : | Corrs Chambers Westgarth |
| Interested Party | : | Hotchkin Hanly Lawyers |
| Interested Party | : | Hotchkin Hanly Lawyers |
Case(s) referred to in decision(s):
ABC Learning Centres Ltd, in the matter of ABC Learning Centres Ltd; application by Walker (No 5) [2008] FCA 1947
Bailey, in the matter of Megacrane Holdings Pty Ltd (admin appt) [2022] FCA 733
Calabretta v Redpen Developments Pty Ltd (in liq) (2010) 183 FCR 47
Correa v Whittingham [2013] NSWCA 263; (2013) 278 FLR 310
Georges, in the matter of Vical NSW Pty Ltd (admin appt) [2018] FCA 1974
Griffiths, in the matter of Armorgalv (Aust) Pty Ltd (admin appt) [2023] FCA 752
Honest Remark Pty Ltd v Allstate Explorations NL [2006] NSWSC 735; (2006) 234 ALR 765
Re New Tel Ltd [2004] FCA 1154; (2004) 210 ALR 270
Robert Michael Kirman and Robert Conry Bauer in their capacity as joint and several voluntary administrators of Tiger Resources Ltd (admin appt) [2021] WASC 93
HILL J:
(This judgment was delivered extemporaneously and has been edited from the transcript to include references, headings and to correct matters of grammar and expression.)
By interlocutory process filed 21 August 2025, the plaintiffs seek a series of orders under s 447A(1) of the Corporations Act 2001 (Cth) (Act), which collectively would have the effect of postponing the second creditors' meetings (Creditors' Meetings) of Bayview Health - Matilda Bay Pharmacy Pty Ltd and Bayview Health North Shore Pharmacy Pty Ltd (Companies) by eight business days.
The first and second plaintiffs are the joint and several administrators of the companies (Administrators). On 20 June 2025, the second meeting of creditors of the Companies was convened pursuant to s 439A of the Act. At this meeting, creditors resolved in respect of each company to adjourn the meeting to a date being not more than 45 business days from the date of the meeting.
It does not seem to be in dispute that the effect of this resolution is that the adjourned meeting must be held by no later than tomorrow, 22 August 2025.
The steps that have been taken by the Administrators are in accordance with r 75‑140 of the Insolvency Practice Rules (Corporations) 2016 (Cth) (Insolvency Practice Rules), which provide that:
(a)a meeting may be adjourned from 'time to time and from place to place', by resolution or by the person presiding at the meeting (r 75‑140(1)); and
(b)a meeting convened under s 439A must not be adjourned to a day that is more than 45 business days after the first day on which the original meeting was held (r 75‑140(3)).
On 15 August 2025, the Administrators issued a supplementary report to creditors and gave notice that the second meeting of creditors would be reconvened at 2.00 pm tomorrow, 22 August 2025. The plaintiffs now seek to postpone at the second meeting of creditors of the Companies until 2.00 pm on 4 September 2025.
In support of the application, the plaintiffs rely on three affidavits of Mr Smith, filed 21 August 2025, as well as an affidavit of service of Eimear McNamara, filed 21 August 2025.
I have also had the benefit of written submissions from the plaintiffs, as well as oral submissions from counsel who appeared before me this morning on behalf of the plaintiffs, as well as the interested party.
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' and, on that basis, it was listed before me at midday today.
I am satisfied from the evidence before me, namely the affidavit of Ms McNamara, that the interlocutory process has been served on shareholders, directors, and creditors of the Companies.
The application was initially opposed by Mr McGregor and Ms Godfrey, two of the directors of the third and fourth plaintiffs, who filed an affidavit of Stephen James Kikiros on 21 August 2025. In the course of submissions, this position was amended. Given the exchanges that took place with counsel who appeared on behalf of Mr McGregor and Ms Godfrey, the application is no longer opposed.
Should the orders sought in the interlocutory process be made?
Section 447A of the Act gives the court power to make orders that modify the maximum period prescribed by r 75‑140(3) for the adjournment of a meeting of creditors convened under s 439A.[1] The modification can be made even where the relevant meeting has already been held.[2]
[1] Bailey, in the matter of Megacrane Holdings Pty Ltd (admin appt) [2022] FCA 733; see, eg, Georges, in the matter of Vical NSW Pty Ltd (admin appt) [2018] FCA 1974 [25] ‑ [27].
[2] Griffiths, in the matter of Armorgalv (Aust) Pty Ltd (admin appt) [2023] FCA 752; Bailey, in the matter of Megacrane Holdings Pty Ltd (admin appt); Robert Michael Kirman and Robert Conry Bauer in their capacity as joint and several voluntary administrators of Tiger Resources Ltd (admin appt) [2021] WASC 93.
In exercising the broad discretion conferred by s 447A(1), the court has regard to all of the circumstances of the case that have been brought to the court's attention by the applicant for relief and by those who have an interest in the matter and who may be affected by the granting of relief.[3]
[3] Calabretta v Redpen Developments Pty Ltd (in liq) (2010) 183 FCR 47 [37].
While the court's power under s 447A is broad, it is not unlimited.[4] The power vested in the court by s 447A is a statutory power that can only be exercised for the purpose for which it has been granted. For this reason, any order that is made under s 447A must have a nexus with the objects of pt 5.3A of the Act and how pt 5.3A is to operate in relation to a particular company.[5]
[4] Correa v Whittingham [2013] NSWCA 263; (2013) 278 FLR 310 [2] ‑ [8], [97] ‑ [105], [304], citing Honest Remark Pty Ltd v Allstate Explorations NL [2006] NSWSC 735; (2006) 234 ALR 765 and Re New Tel Ltd [2004] FCA 1154; (2004) 210 ALR 270 [3].
[5] Honest Remark Pty Ltd v Allstate Explorations NL [66].
Where the court is persuaded that the prospects of a better outcome for creditors will be improved by a potentially longer period of administration, ordinarily, the court will grant an extension.[6]
[6] See ABC Learning Centres Ltd, in the matter of ABC Learning Centres Ltd; application by Walker (No 5) [2008] FCA 1947 [8], albeit in the context of an application to extend the time for convening the meeting under s 439A.
In the circumstances of this matter, I am satisfied on the basis of the evidence before the court and taking account of the submissions made by counsel, that it is appropriate to make orders postponing the creditors meetings for eight business days.
Mr Smith's evidence, which I accept, is that the administrators have received two competing deed of company arrangement (DOCA) proposals in respect of the Companies. The second proposal was only received yesterday, 20 August 2025. The administrators' preliminary review of the second DOCA proposal is that it may be comparable or superior to the first proposal.[7]
[7] Third affidavit of Andrew Micheal Smith filed 21 August 2025 [24] - [25]; Second affidavit of Andrew Micheal Smith filed 21 August 2025 [9] - [12].
In these circumstances, the administrators seek to postpone the Creditors' Meetings to enable a report to creditors to be prepared on the competing DOCA proposals that contains a considered recommendation to creditors. If deemed appropriate, this will enable the creditors to vote on the proposal recommended by the administrators at the postponed Creditors' Meetings.[8]
[8] Second affidavit of Andrew Micheal Smith filed 21 August 2025 [13].
Having regard to all of the circumstances of this case, I am satisfied that the orders sought by the plaintiffs give creditors the best prospect of a return and that the purpose for which the modification of the Insolvency Practice Rules is sought is consistent with the objects of pt 5.3A of the Act. In this regard, I particularly take note of the submissions made by Mr Zappia, who appeared on behalf of the plaintiffs of the public interest issue that is raised, including whether there is funding to consider courses of action against the related parties.
Conclusion
On this basis, it is my view that it is appropriate to make orders broadly in terms of the plaintiffs' interlocutory process, save in respect of order 5, which I consider should be reduced to the shorter period of two business days.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KS
Associate to the Honourable Justice Hill
30 SEPTEMBER 2025
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