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Re Colortv Ltd

Re Colortv Ltd

Case [2022] WASC 328 28 September 2022

Jurisdiction

Limitation Periods

Discovery & Disclosure

Unjust Enrichment

Res Judicata

Insolvency Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   RE COLORTV LTD; ex parte Bryan Kevin HUGHES and Daniel Johannes BREDENKAMP in their capacity as administrator of COLORTV LTD (ADMINISTRATORS APPOINTED) [2022] WASC 328
CORAM:   SMITH J
HEARD:   27 SEPTEMBER 2022
DELIVERED          :   28 SEPTEMBER 2022
FILE NO/S:   COR 172 of 2022
MATTER:   IN THE MATTER OF COLORTV LTD

EX PARTE
BRYAN KEVIN HUGHES as joint and several administrator of COLORTV LIMITED (ADMINISTRATORS APPOINTED)
First Plaintiff
DANIEL JOHANNES BREDENKAMP as joint and several administrator of COLORTV LIMITED (ADMINISTRATORS APPOINTED)
Second Plaintiff

Catchwords:

Corporations Law - Ex parte application by administrators to extend convening period for the second meeting of creditors and ancillary orders pursuant to s 439A(6) and s 447A(1) of the Corporations Act 2001 (Cth)

Legislation:

Corporations Act 2001 (Cth) s 439A(2), s 439A(5), s 439A(6), s 447A(1)
Insolvency Practice Rules (Corporations) 2016 (Cth) s 75-225, s 75-40

Result:

Application granted

Category: B

Representation:

Counsel:

First Plaintiff	:	Ms M De Toni
Second Plaintiff	:	Ms M De Toni

Solicitors:

First Plaintiff	:	Blackwall Legal LLP
Second Plaintiff	:	Blackwall Legal LLP

Cases referred to in decision:

Bumbak (Administrator), in the matter of Duro Felguera Australia Pty Ltd (Administrators Appointed) [2020] FCA 422
Cameron Shaw and Richard Albarran in their Capacity as Joint and Several Administrators of Home Art Building Group Pty Ltd (Administrators Appointed) v Home Art Building Group Pty Ltd (Administrators Appointed) [2016] WASC 274
Gothard, in the matter of Sherwin Iron Ltd (Administrators Appointed) (Receivers and Managers Appointed) (No 2) [2015] FCA 401
In the matter of Belmont Sportsmans Club Co-Operative Limited (Administrators Appointed) [2015] NSWSC 543
In the matter of Riviera Group Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed) [2009] NSWSC 585
Jahani, in the matter of Northern Energy Corporation Ltd (Administrators Appointed) (No 2) [2019] FCA 382
Mann v Abruzzi Sports Club Ltd (1994) 12 ACSR 611
Owen, in the matter of RiverCity Motorway Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed) v Madden (No 4) [2012] FCA 1491; (2012) 92 ACSR 255
Re Diamond Press Australia Pty Ltd [2001] NSWSC 313
Re Pindan Group Pty Ltd (Administrators Appointed) [2021] WASC 347
Re Sneakerboy Pty Ltd [2022] VSC 502
Sylvia, in the Matter of Austcorp Group Ltd (Administrators Appointed) [2009] FCA 636

SMITH J:

1.0 The application

The plaintiffs are joint and several administrators of ColorTV Limited (Administrators Appointed) (ACN 621 160 585) (the Company). The Company is a public company limited by shares and listed on the Australian Securities Exchange with a ticker code of CTV, having first listed in December 2017.
The plaintiffs apply for orders set out in an interlocutory process filed on 21 September 2022. The application was listed for hearing ex parte on an urgent basis.
The plaintiffs seek orders pursuant to s 439A(6) and s 447A(1) of the Corporations Act 2001 (Cth) to extend the period within which the second meeting of creditors must be convened under s 439A of the Corporations Act,…

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 Colortv Ltd

Details

AGLC: Re Colortv Ltd [2022] WASC 328
Case: [2022] WASC 328
Decision Date

CaseChat Overview and Summary

The plaintiffs, Bryan Kevin Hughes and Daniel Johannes Bredenkamp, are joint and several administrators of ColorTV Limited, a public company listed on the Australian Securities Exchange. They applied ex parte for an extension of the convening period for the second meeting of creditors under s 439A(6) of the Corporations Act 2001 (Cth) and ancillary orders under s 447A(1) of the Corporations Act. The application was heard on an urgent basis, and the plaintiffs sought an extension of time to convene the second meeting of creditors to allow them sufficient time to investigate the company's affairs to ascertain whether the company is truly insolvent, and if it is not, whether the company and its business can be restructured or if it would be in the creditors' interests for the company to be wound up.

The court was required to decide whether to grant the extension of time sought by the plaintiffs. The court considered the object of the relevant provisions of the Corporations Act, the principles applied when considering an application to extend a convening period, and the evidence presented by the plaintiffs.

The court found that the convening period should be extended and the orders sought by the plaintiffs should be made. The court was satisfied that the extension was necessary to enable the plaintiffs to carry out the statutory tasks required of them, and that there was a prospect that the company could either come out of administration if it was not insolvent, or the business of the company could be recapitalised through a deed of company arrangement. The court also found that the period of extension sought was very short and there was no evidence of any prejudice to creditors from the proposed extended period. The court was satisfied that it was appropriate to order that the second meeting may be held at any time within the extended convening period and the period of five business days thereafter. The court also found that it was appropriate for the plaintiffs to have liberty to apply for a further extension of the period to convene a meeting of creditors should the circumstances require.

The court made the following orders: (1) the period within which the meeting of creditors of the company must be convened is extended until 21 October 2022; (2) the plaintiffs have liberty to apply for a further extension of the period should the circumstances require; (3) the plaintiffs may hold the meeting more than 5 business days before the conclusion of the extended period, provided that at least 5 business days’ notice of such meeting is given; (4) the plaintiffs are to give notice of these orders to the company's known creditors by means of a circular, to be provided by post or email no later than 7 days after the date of these orders; and (5) any interested person is at liberty to apply within 21 days from the date of these orders to modify or discharge these orders. The plaintiffs' costs of this application were to be costs and expenses in the administration of the company and be paid from the assets of the company.

Orders