Re Billson's Beverages Pty Ltd - [2024] VSC 545

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT
CORPORATIONS LIST

S ECI 2024 04470

IN THE MATTER of BILLSON'S BEVERAGES PTY LTD (ADMINISTRATORS APPOINTED) (ACN 621 093 061)

BETWEEN:

ROBERT BRUCE SMITH in his capacity as Joint and Several Voluntary Administrator of BILLSON'S BEVERAGES PTY LTD (ADMINISTRATORS APPOINTED) (ACN 621 093 061)
& ORS (according to the attached Schedule)

Plaintiffs

---

JUDGE:	Gardiner AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	28 August 2024
DATE OF JUDGMENT:	28 August 2024 (ex tempore, revised 5 September 2024)
CASE MAY BE CITED AS:	Re Billson’s Beverages Pty Ltd
MEDIUM NEUTRAL CITATION:	[2024] VSC 545

---

CORPORATIONS — External administration — Part 5.3A of the Corporations Act 2001 (Cth) — Application for extension of convening period of second meeting of creditors of company in voluntary administration pursuant to s 439A(6) of the Corporations Act 2001 (Cth) – Extension sought of approximately 3 months of convening period of administration of company—Administrators seeking extension to enable the potential sale of company’s business— Sound reasons given for extension — Extension in the interests of creditors — No significant prejudice to those affected by moratorium attending a grant of extension — Orders made for extension of convening period together with ancillary orders including liberty to apply to administrators and those whose interests are affected by orders.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Ms V Bell, of Counsel	MinterEllison

HIS HONOUR:

By an originating process filed on 26 August 2024, the plaintiffs, Robert Bruce Smith and Matthew Russell Hutton (together ‘Administrators’) who are the voluntary administrators of Billson's Beverages Pty Ltd (Administrators Appointed) (ACN 621 093 061) (‘Billson’s Beverages’ or ‘Company’), make application under ss 439A(6) and 447A of the Corporations Act 2001 (Cth) (‘Act’) for an extension of the convening period for the second meeting of creditors of the Company required to be held by s 439A(1) of the Act (‘Application’), together with certain ancillary orders. Unless extended, the convening period will expire at midnight today, 28 August 2024.

The Administrators seek an extension for a period of three months until 28 November 2024. They also seek a ‘Daisytek order’,[1] allowing the Administrators to hold the second creditors’ meeting any time during, or within five business days after, the end of the period as extended, notwithstanding the operation of s 439A(2) of the Act.
[1]See Re Daisytek Australia Pty Ltd (2003) 45 ACSR 446, 448 [10]–[14] (Lindgren J) (‘Daisytek’).

In addition, the originating process seeks orders that there be liberty to apply to persons affected by the orders sought and costs.

On 28 August 2024, I made orders which are set out at the conclusion of these reasons and gave brief reasons on the return of the Application. I indicated that I would provide more elaborate reasons which I now do, which may serve to inform those affected by the Administration, including employees, creditors, and shareholders, of the…

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.

Continue reading Re Billson's Beverages Pty Ltd

Details

AGLC: Re Billson's Beverages Pty Ltd [2024] VSC 545
Case: [2024] VSC 545
Decision Date: 28 August 2024 (ex tempore, revised 5 September 2024)

CaseChat Overview and Summary

In the matter of Billson's Beverages Pty Ltd, the court considered an application for an extension of the convening period of the second meeting of creditors of the company in voluntary administration. The application was made pursuant to section 439A(6) of the Corporations Act 2001 (Cth). The administrators of the company sought an extension of approximately three months to enable the potential sale of the company's business, which they argued would be in the best interests of the creditors.

The primary legal issue before the court was whether the administrators had provided sufficient reasons for the extension, and whether the extension would be in the interests of the creditors. The court had to weigh the administrators' argument that the extension was necessary for the potential sale of the business against any potential prejudice to the creditors or other affected parties. The court also considered whether the administrators had acted in good faith and whether the extension would not significantly prejudice those affected by the moratorium.

The court found that the administrators had provided sound reasons for the extension, and that the extension was in the interests of the creditors. The administrators had demonstrated that the potential sale of the company's business was a viable option that would benefit the creditors. The court was satisfied that the extension would not significantly prejudice those affected by the moratorium, as the administrators had provided adequate notice to all affected parties and had taken steps to ensure that they would be able to attend the extended meeting. The court therefore made orders for the extension of the convening period, together with ancillary orders including liberty to apply to the administrators and those whose interests are affected by the orders.

The court's decision in this case provides guidance to administrators and creditors in similar situations, and highlights the importance of providing sound reasons for any extension of the convening period in a voluntary administration. The court's emphasis on the need to balance the interests of the creditors with the potential benefits of a sale of the company's business is particularly noteworthy.

Orders