FEDERAL COURT OF AUSTRALIA
Carson, in the matter of Hastie Group Limited [2012] FCA 626
Citation: Carson, in the matter of Hastie Group Limited [2012] FCA 626 Parties: IAN MENZIES CARSON, DAVID LAURENCE MCEVOY AND CRAIG DAVID CROSBIE IN THEIR CAPACITY AS JOINT AND SEVERAL ADMINISTRATORS OF HASTIE GROUP LIMITED (ADMINISTRATORS APPOINTED) ABN 76 112 803 040, HASTIE GROUP LIMITED (ADMINISTRATORS APPOINTED) ABN 76 112 803 040 and 43 OTHERS File number: NSD 749 of 2012 Judge: EMMETT J Date of judgment: 29 May 2012 Legislation: Corporations Act 2001 (Cth) ss 436E, 443B, 447A Date of hearing: 29 May 2012 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 22 Counsel for the plaintiffs: BA Coles QC, J Hynes Solicitor for the plaintiffs: Henry Davis York
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 749 of 2012
BETWEEN: IAN MENZIES CARSON, DAVID LAURENCE MCEVOY AND CRAIG DAVID CROSBIE IN THEIR CAPACITY AS JOINT AND SEVERAL ADMINISTRATORS OF HASTIE GROUP LIMITED (ADMINISTRATORS APPOINTED) ABN 76 112 803 040
First to Third PlaintiffsHASTIE GROUP LIMITED (ADMINISTRATORS APPOINTED) ABN 76 112 803 040 and 43 OTHERS
Fourth to Forty-Seventh Plaintiffs
JUDGE:
EMMETT J
DATE OF ORDER:
29 MAY 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The plaintiffs have leave to file an Originating Process in the form initialled and dated by Emmett J, to be returnable instanter before Emmett J.
2.Pursuant to s 447A(1) of the Corporations Act 2001 (Cth), in respect of each of Hastie Group Limited and the companies set out in Schedule 1 (the plaintiff companies), the time allowed in ss 443B(2)(a) and 443B(3) of the Act is to read in each case “20 business days” rather than “5 business days”.
3.Pursuant to s 447A(1) of the Corporations Act 2001 (Cth), in respect of each of the plaintiff companies, the time allowed in s 436E(2) Act is to read “13 business days” rather than “8 business days”.
4.Pursuant to s 447A(1) of the Corporations Act2001 (Cth), in respect of the plaintiff companies, the requirement on the Administrator plaintiffs to issue notice under
s 436E(3) of the Act be modified such that notice of the first meeting of creditors of the applicant companies will be validly given to any creditor by:4.1giving notice of the first meeting of creditors electronically by email, where the email address of the creditor is known to the Administrators;
4.2causing notice of the meeting to be published in The Australian newspaper; and
4.3placing notice of the meeting on the website that is maintained by the Administrator plaintiffs.
5.The plaintiffs have liberty to restore on 2 days’ notice, including for the purpose of seeking such further modification of the operation of s 443B of the Corporations Act 2001 (Cth).
6.Any person affected by the orders sought in these proceedings, including any lessor of property, have liberty to restore on 2 days’ notice.
7.The costs of this proceeding be the costs in the administrations of…
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- Case
- [2012] FCA 626
- Decision Date
CaseChat Overview and Summary
The legal issues before the court encompassed whether the statutory time limits under sections 443B(2)(a), 443B(3), and 436E(2) of the Corporations Act could be extended from five and eight business days to twenty and thirteen business days respectively for the plaintiff companies. Additionally, the court had to determine if the notice of the first meeting of creditors could be validly given electronically, published in a newspaper, and posted on a company website, as opposed to the statutory requirement of personal delivery or sending by post.
Emmett J found that the statutory time limits could indeed be extended to twenty and thirteen business days for the plaintiff companies, acknowledging the practical difficulties in meeting the shorter timeframes due to the nature of their administrations. The court also ruled that the proposed methods of giving notice were acceptable alternatives to personal delivery or posting, provided they ensured that creditors received adequate and timely information about the meetings. The judge granted the plaintiffs leave to file an originating process and provided further liberty to restore the proceeding for additional modifications. The costs of the proceeding were ordered to be borne by the administrations of the plaintiff companies, and the matter was listed for further directions.
The orders granted by Emmett J were comprehensive, extending the time limits for certain actions, modifying the method of notice for creditors, and providing for the restoration of the proceeding and liberty to apply for further modifications. The court's decision balanced the need for procedural flexibility with the statutory requirements intended to protect creditor interests.
Orders
Orders of the court
1. The plaintiffs have leave to file an Originating Process in the form initialled and dated by Emmett J, to be returnable instanter before Emmett J.
2. Pursuant to s 447A(1) of the Corporations Act 2001 (Cth), in respect of each of Hastie Group Limited and the companies set out in Schedule 1 (the plaintiff companies), the time allowed in ss 443B(2)(a) and 443B(3) of the Act is to read in each case “20 business days” rather than “5 business days”.
3. Pursuant to s 447A(1) of the Corporations Act 2001 (Cth), in respect of each of the plaintiff companies, the time allowed in s 436E(2) Act is to read “13 business days” rather than “8 business days”.
4. Pursuant to s 447A(1) of the Corporations Act 2001 (Cth), in respect of the plaintiff companies, the requirement on the Administrator plaintiffs to issue notice under
s 436E(3) of the Act be modified such that notice of the first meeting of creditors of the applicant companies will be validly given to any creditor by:
4.1 giving notice of the first meeting of creditors electronically by email, where the email address of the creditor is known to the Administrators;
4.2 causing notice of the meeting to be published in The Australian newspaper; and
4.3 placing notice of the meeting on the website that is maintained by the Administrator plaintiffs.
5. The plaintiffs have liberty to restore on 2 days’ notice, including for the purpose of seeking such further modification of the operation of s 443B of the Corporations Act 2001 (Cth).
6. Any person affected by the orders sought in these proceedings, including any lessor of property, have liberty to restore on 2 days’ notice.
7. The costs of this proceeding be the costs in the administrations of the plaintiff companies.
8. The proceeding be listed for directions before Emmett J at 9.30am on Friday, 15 June 2012.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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