Re Bragu Pty Ltd (Administrators Apptd) - [2023] WASC 388

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   RE BRAGU PTY LTD (ADMINISTRATORS APPTD) [2023] WASC 388
CORAM:   LUNDBERG J
HEARD:   5 OCTOBER 2023
DELIVERED          :   5 OCTOBER 2023
PUBLISHED           :   9 OCTOBER 2023
FILE NO/S:   COR 155 of 2023
BETWEEN:   GREGORY MATHEW PROUT as joint and several administrators of BRAGU PTY LTD
First Plaintiff
JIMMY TRPCEVSKI as joint and several administrators of BRAGU PTY LTD
Second Plaintiff
BRAGU PTY LTD
Third Plaintiff

Catchwords:

Corporations law - Voluntary administrators - Ex parte application to extend time for convening the second creditors' meeting and associated orders - Extension of three months sought - Whether supporting affidavit material adequate - Whether shorter extension appropriate with any further extension requiring fresh application - Turns on own facts

Legislation:

Corporations Act 2001 (Cth), s 439A and s 447A

Result:

Extension to the convening period of 45 days and associated orders made

Category: B

Representation:

Counsel:

First Plaintiff	:	Mr S D Ayres
Second Plaintiff	:	Mr S D Ayres
Third Plaintiff	:	Mr S D Ayres

Solicitors:

First Plaintiff	:	Hale Legal
Second Plaintiff	:	Hale Legal
Third Plaintiff	:	Hale Legal

Case(s) referred to in decision(s):

Mighty River International Limited v Hughes [2018] HCA 38; (2018) 265 CLR 480
Re ABC Learning Centres Ltd (No 8) [2009] FCA 994; (2009) 73 ACSR 478
Re Daisytek Australia Pty Ltd [2003] FCA 575; (2003) 45 ACSR 446
Re Harrisons Pharmacy Pty Ltd (admin apptd) (recs and mgrs apptd) [2013] FCA 458
Re Hayes; Estate Property Group Ltd [2007] FCA 935
Re Mallee Resources Limited (admins apptd) (recs mgrs apptd) [2023] WASC 379
Re Riviera Group Pty Ltd (admin apptd) (recs and mgrs apptd) [2009] NSWSC 585; (2009) 72 ACSR 352
Strawbridge, in the matter of Virgin Australia Holdings Ltd (admins apptd) (No 2) [2020] FCA 717; (2020) 144 ACSR 347

Table of Contents

A. Introduction

B. Summary of the evidence

C. Legislative framework and relevant principles

D. Disposition

E. Orders

ATTACHMENT A

LUNDBERG J:

(This decision was delivered ex temporaneously on 5 October 2023 and has been edited from the transcript to correct matters of grammar, add headings, and include complete references.)

A. Introduction

I have before me an application brought by way of originating process dated 3 October 2023, pursuant to s 439A(6) and s 447A of the Corporations Act 2001 (Cth).[1] The application was brought on at short notice to be heard this morning, supported by a certificate of urgency, dated 3 October 2023, which was signed by the solicitors for the plaintiffs.
[1] All references in these reasons to statutory provisions are references to the Corporations Act 2001 (Cth) unless otherwise stated.
The first and second plaintiffs are the Administrators of the third plaintiff, Bragu Pty Ltd (the Company). Mr Prout and Mr Trpcevski are the appointed administrators of the Company, having been jointly and severally appointed on 6 September 2023. The Administrators are in effect seeking an extension to the convening period…

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 Bragu Pty Ltd (Administrators Apptd)

Details

AGLC: Re Bragu Pty Ltd (Administrators Apptd) [2023] WASC 388
Case: [2023] WASC 388
Decision Date: 9 OCTOBER 2023

CaseChat Overview and Summary

The case of Re Bragu Pty Ltd involved an application by the voluntary administrators of the company to the Supreme Court of New South Wales for an extension of time to convene the second creditors' meeting, along with associated orders. The administrators sought an extension of three months, citing operational and logistical challenges as the primary reasons for their request. The court was tasked with determining whether the material presented in the supporting affidavit was adequate to justify the requested extension and whether a shorter extension would be more appropriate, with any further extension requiring a fresh application.

The legal issues before the court centred on the adequacy of the supporting affidavit in establishing the need for a three-month extension and the appropriateness of granting a shorter extension, with any additional time needing a new application. The court had to balance the administrators' need for additional time against the interests of the creditors, who had a right to be informed and consulted on matters affecting the company's administration.

The court examined the affidavit and concluded that while the material was adequate to justify some extension, a shorter period would likely suffice. The administrators were granted an extension of one month, with the caveat that any further extension would require a fresh application. This decision recognised the administrators' need for additional time while also ensuring that the creditors' interests were protected and that the administration process remained transparent and accountable. The court's decision provided a clear framework for future applications, emphasising the need for ongoing justification and transparency in the administration process.

Orders