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Re Evans & Tate Ltd; Ex parte Jones

Re Evans & Tate Ltd; Ex parte Jones

Case [2007] WASC 235 7 September 2007

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RE EVANS & TATE LTD (ADMINISTRATORS APPOINTED) (RECEIVERS AND MANAGERS APPOINTED); EX PARTE JONES [2007] WASC 235

CORAM: EM HEENAN J

HEARD: 7 SEPTEMBER 2007

DELIVERED : 7 SEPTEMBER 2007

PUBLISHED : 10 OCTOBER 2007

FILE NO/S: COR 127 of 2007

MATTER :Section 439A(6) and s 447A(1) of the Corporations Act 2001 (Cth) and EVANS & TATE LTD (ADMINISTRATORS APPOINTED) (RECEIVERS AND MANAGERS APPOINTED) ACN 064 820 408 and others

EX PARTE
MARTIN BRUCE JONES
BRUCE JAMES CARTER
Plaintiffs
AND
EVANS & TATE LTD (ADMINISTRATORS APPOINTED) (RECEIVERS AND MANAGERS APPOINTED) (ACN 064 820 408)
AUSTRALIAN PREMIUM WINES PTY LTD (ADMINISTRATORS APPOINTED) (RECEIVERS AND MANAGERS APPOINTED) (ACN 001 189 859)
AUSTRALIAN WINERIES PTY LTD (ADMINISTRATORS APPOINTED) (RECEIVERS AND MANAGERS) (ACN 058 399 134)
AWT PTY LTD (ADMINISTRATORS APPOINTED) (RECEIVERS AND MANAGERS APPOINTED) (ACN 054 567 690)
CRANSWICK PURCHASING PTY LTD (ADMINISTRATORS APPOINTED) (RECEIVERS AND MANAGERS APPOINTED) (ACN 082 976 921)
EVANS & TATE (USA) PTY LTD (ADMINISTRATORS APPOINTED) (RECEIVERS AND MANAGERS APPOINTED) (ACN 084 350 425)
EVANS & TATE VINEYARDS PTY LTD (ADMINISTRATORS APPOINTED) (RECEIVERS AND MANAGERS APPOINTED) (ACN 008 713 764)
IRONBARK WINES PTY LTD (ADMINISTRATORS APPOINTED) (RECEIVERS AND MANAGERS APPOINTED) (ACN 090 894 974)
IRYBEL PTY LTD (ADMINISTRATORS APPOINTED) (RECEIVERS AND MANAGERS APPOINTED) (ACN 005 405 194)
OAKRIDGE VINEYARDS PTY LTD (ADMINISTRATORS APPOINTED) (RECEIVERS AND MANAGERS APPOINTED) (ACN 076 706 440)
REDELLO WINES PTY LTD (ADMINISTRATORS APPOINTED) (RECEIVERS AND MANAGERS APPOINTED) (ACN 003 753 491)
SELWYN VITICULTURAL SERVICES PTY LTD (ADMINISTRATORS APPOINTED) (RECEIVERS AND MANAGERS APPOINTED) (ACN 093 317 198)
SELWYN WINES PTY LTD (ADMINISTRATORS APPOINTED) (RECEIVERS AND MANAGERS APPOINTED) (ACN 055 105 201)
SOVINT PTY LTD (ADMINISTRATORS APPOINTED) (RECEIVERS AND MANAGERS APPOINTED) (ACN 005 514 367)
WINE SOURCES (NSW) PTY LTD (ADMINISTRATORS APPOINTED) (RECEIVERS AND MANAGERS APPOINTED) (ACN 062 372 605)
WINE SOURCES (QLD) PTY LTD (ADMINISTRATOR APPOINTED) (RECEIVERS AND MANAGERS APPOINTED) (ACN 108 365 742)
WINE SOURCES (VIC) PTY LTD (ADMINISTRATOR APPOINTED) (RECEIVERS AND MANAGERS APPOINTED) (ACN 065 453 803)
WINE SOURCES (WA) PTY LTD (ADMINISTRATORS APPOINTED) (RECEIVERS AND MANAGERS APPOINTED) (ACN 111 551 547)
WINE SOURCES HOLDINGS PTY LTD (ADMINISTRATOR APPOINTED) (RECEIVERS AND MANAGERS APPOINTED) (ACN 082 150 801)
EVANS & TATE PREMIUM WINES PTY LTD (ADMINISTRATORS APPOINTED) (ACN 000 024 304)
Defendants

Catchwords:

Corporations - Corporation in administration - Ex parte application - Application for three months extension of period to convene second meeting of creditors - Receivers and managers in control of company assets - Possibility of extension of time for convening second meeting of creditors raised at first meeting - Factors for consideration - Flexibility of powers - Notice to creditors and other interested parties - Application to fix administrators' remuneration - Application to secure administrators' fees and expenses by lien over company property - Adjourned until after notice given to creditors, members and other interested parties

Legislation:

Corporations Act 2001(Cth)

Result:

Time for convening second meeting of creditors extended by 30 days with leave granted to apply on notice for…

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 Evans & Tate Ltd; Ex parte Jones

Details

AGLC: Re Evans & Tate Ltd; Ex parte Jones [2007] WASC 235
Case: [2007] WASC 235
Decision Date: 7 SEPTEMBER 2007

CaseChat Overview and Summary

In the matter of Re Evans & Tate Ltd, an ex parte application was made by Jones in the Supreme Court of Queensland. The company, Evans & Tate Ltd, was under administration, and the application sought an extension of time to convene the second meeting of creditors. Additionally, the application sought to fix and secure the administrators' fees and expenses by a lien over the company's property. The court was required to consider the factors pertinent to granting an extension of time for the second meeting of creditors and the appropriate procedure for addressing the remuneration and securing of the administrators' fees.

The primary legal issue was whether the court should grant an extension of time for convening the second meeting of creditors and whether it was appropriate to fix and secure the administrators' fees and expenses. The court considered the necessity for flexibility in the administration process, the requirement to provide notice to creditors and other interested parties, and the balance between expeditious administration and due process. The court also needed to determine the correct procedural steps for fixing and securing the administrators' remuneration.

The court found that the application for an extension of time was justified under the circumstances, considering the need for further time to ensure proper notice and participation from creditors. The court granted a 30-day extension with leave to apply for a further extension on notice. However, the court determined that the applications to fix and secure the administrators' fees should be adjourned until after proper notice had been given to creditors, members, and other interested parties. This approach aimed to ensure that all parties had an opportunity to be heard and that the process remained fair and transparent.

The court made an order extending the time for convening the second meeting of creditors by 30 days, with leave to apply for a further extension. The applications to fix and secure the administrators' fees were adjourned until after notice had been given to creditors, members, and other interested parties. This decision balanced the need for efficient administration with the rights of stakeholders to be adequately informed and involved in the process.

Orders

Orders of the court

1. Time for convening second meeting of creditors extended by 30 days with leave granted to apply on notice for further extension

2. Applications to fix and secure administrators' fees adjourned until after notice given to creditors, members and others

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Re Evans & Tate Ltd; Ex parte Jones [2007] WASC 235

Most Recent Citation

Re Unlockd Ltd (administrators apptd) [2018] VSC 345

Cases citing this decision · 10 of 10 shown

Freeman, in the matter of Regional Express Holdings Limited (administrators appointed) (No 2)
[2024] FCA 968 Para 1

…the overall position of the consolidated group: Re Evans and Tate Ltd (Administrators Appointed) (Receivers and Managers Appointed); Ex parte Jones [2007] WASC 235 at [5]. That is a further complexity that goes towards justifying the time sought by the Administrators as being reasonable. In light of the fact that…
Re Unlockd Ltd (administrators appointed)
[2018] VSC 345

…30.There is no need for special grounds to be demonstrated: Re Evans & Tate Ltd; Ex parte Jones (2007) 25 ACLC 1,580; [2007] WASC 235, [20]–[21] (E. M. Heenan J). 31.In Newsat at [63], Beach J stated that the factors justifying an extension of the convening period include: (a)whether there is a lack of any or time…
Mighty River International Ltd v Hughes
[2017] WASCA 152 Para 9

…7]. [138] See, for example, Re Riviera Group [9]; Re Evans and Tate Ltd (Administrators Appointed) (Receivers and Managers Appointed); Ex parte Jones [2007] WASC 235 [19]; Re Palandri [4]; see also Lehman Brothers Holdings v City of Swan [21]; Australian Gypsum v Dalesun [187].…
SCOTT DAVID HARRY LANGDON AND CLIFFORD STUART ROCKE AS ADMINISTRATORS FOR PETRO VENTURES INTERNATIONAL LIMITED (ADMINISTRATORS APPOINTED)
[2014] WASC 48

…Re Evans & Tate Ltd (Administrators Appointed) (Receivers and Managers Appointed) Ex parte Jones [2007] WASC 235 Re Geraldton Building Co Pty Ltd (Administrators Appointed); Ex parte Trevor [2000] WASC 320 Re Levi (1996) 19 ACSR 521 Re New Horizons Corporation; Ex parte De Vries [2004] NSWSC 253 Re Pan Pharmaceuti…
Autodom Ltd (Administrators Appointed) (Receivers and Managers Appointed), in the matter of Autodom Ltd (Administrators Appointed) (Receivers and Managers Appointed)
[2012] FCA 1393 Para 20

…l expect that administrators adhere to the specified times limits: Re Evans & Tate Ltd (Administrators Apptd) (recs and mgrs apptd); Ex parte Jones [2007] WASC 235 [20]. However, as the learned editors of Ford’s Principles of Corporations Law [26.201] observe: More recently, confronted with cases involving large c…
Brian Kevin Hughes as Administrator of Westgem Investments Pty Ltd (Receivers and Managers Appointed) [No 2]
[2011] WASC 114 Para 2

…administrators adhere to the specified times limits: Re Evans & Tate Ltd (Administrators Appointed) (Receivers & Managers Appointed); Ex parte Jones [2007] WASC 235 [20]. However, as the learned editors of Ford's Principles of Corporations Law [26.201] observe: More recently, confronted with cases involving large…
JEFFREY LAURENCE HERBERT and SIMON GUY THEOBALD as Administrators of CHALLENGE AUSTRALIAN DAIRY PTY LTD (Administrators Appointed)(Receivers and Managers Appointed)
[2010] WASC 361 Para 5

…bjects of pt 5.3A of the Act in mind. There is a detailed discussion of the relevant principles by EM Heenan J in Re Evans & Tate Ltd; Ex parte Jones [2007] WASC 235; (2007) 25 ACLC 1580 [15] ‑ [23]. I would respectfully adopt what his Honour had to say in those paragraphs.…
Re Cape View Developments WA Pty Ltd
[2009] WASC 384

…HCA 30; (2000) 200 CLR 270 Deputy Commissioner of Taxation v Portinex Pty Ltd [2000] NSWSC 99; (2000) 156 FLR 453 Re Evans & Tate Ltd; Ex parte Jones [2007] WASC 235 Re Henry Walker Eltin Group Ltd [2005] FCA 984; (2005) 54 ACSR 383 Re Lombe; Australian Discount Retail Pty Ltd [2009] NSWSC 110 Re Mentha; Hans Cont…
Re Palandri Ltd
[2008] WASC 68

…Re Evans and Tate Ltd (Administrators Appointed) (Receivers and Managers Appointed); Ex parte Jones [2007] WASC 235…
Re Windimurra Vanadium Ltd & Midwest Vanadium Pty Ltd
[2009] WASC 71 Para 11

…In Re Evans and Tate Ltd; Ex Parte Jones [2007] WASC 235; (2007) 25 ACLC 1580 EM Heenan J summarised the relevant principles at [17] ‑ [21] as follows: It follows, therefore, that the suspension of the rights of the creditors, and for that matter of lessors, or of any party seeking to begin or to proceed with an a…

View all 10 citing cases →

Cases cited in this decision · 11 of 11 shown

Re New Horizons Corporation; ex parte De Vries
[2004] NSWSC 253 Para 6

…euticals Ltd (admin appt) [2003] FCA 598; (2003) 46 ACSR 77; Re TPE Kintech Pty Ltd [2004] NSWSC 250; (2004) 49 ACSR 106; Re New Horizons Corporation [2004] NSWSC 253. The wishes of creditors will be a relevant, although not a determinative, consideration: Re Geraldton Building Co Pty Ltd (admin appt) ; Re Austin A…
Re TPE Kintech;
[2004] NSWSC 250 Para 6

…recommendations required under s 439(4) of the Act: Re Pan Pharmaceuticals Ltd (admin appt) [2003] FCA 598; (2003) 46 ACSR 77; Re TPE Kintech Pty Ltd [2004] NSWSC 250; (2004) 49 ACSR 106; Re New Horizons Corporation [2004] NSWSC 253. The wishes of creditors will be a relevant, although not a determinative, consider…
Austin Australia Pty Ltd (In Admin)
[2004] NSWSC 9 Para 6

…ll be a relevant, although not a determinative, consideration: Re Geraldton Building Co Pty Ltd (admin appt) ; Re Austin Australia Pty Ltd (in admin) [2004] NSWSC 9.…
Humphris, in the matter of ACN 004 987 866 Pty Ltd
[2003] FCA 849 Para 1

…not one for general pooling, the idea of general pooling of assets was endorsed in Re ACN 004 987 866 Pty Ltd (formerly Hilton's Stores Pty Ltd) [2003] FCA 849; (2003) 21 ACLC 1474 [23]. The administrators cite this decision of Goldberg J, for the proposition that pooling or consolidation of assets for the purpo…
Re Pan Pharmaceuticals Ltd
[2003] FCA 598 Para 6

…ary to enable the administrator to provide the report and recommendations required under s 439(4) of the Act: Re Pan Pharmaceuticals Ltd (admin appt) [2003] FCA 598; (2003) 46 ACSR 77; Re TPE Kintech Pty Ltd [2004] NSWSC 250; (2004) 49 ACSR 106; Re New Horizons Corporation [2004] NSWSC 253. The wishes of creditor…
Re Golden Refining Corporation Ltd (Administrators Appointed ACN 002 771 066);
[2001] WASC 248 Para 7

…y be made allowing the second creditors' meeting to be convened during the extended convening period: Re Golden Refining Corporation Ltd (admin appt) [2001] WASC 248.…
Re Geraldton Building Co Pty Ltd (Administrators Appointed); ex parte Trevor
[2000] WASC 320 Para 5

…ppt) [2000] WASC 227; Re Port Kennedy Resorts Pty Ltd (admin appt) [2000] WASC 302; (2001) 19 ACLC 328; Re Geraldton Building Co Pty Ltd (admin appt) [2000] WASC 320.…
KIMBERLEY ANDREW STRICKLAND AND CHRISTOPHER MICHAEL WILLIAMSON AS ADMINISTRATORS OF PORT KENNEDY RESORTS PTY LTD (ADMINISTRATORS APPOINTED)
[2000] WASC 302 Para 5

…CSR 521; Re Madden (1996) 131 FLR 430; Re Allbuild Construction Co Pty Ltd (admin appt) [2000] WASC 227; Re Port Kennedy Resorts Pty Ltd (admin appt) [2000] WASC 302; (2001) 19 ACLC 328; Re Geraldton Building Co Pty Ltd (admin appt) [2000] WASC 320.…
Re Allbuild Construction Co Pty Ltd (Administrators Appointed); ex parte Featherby
[2000] WASC 227 Para 5

…G Developments Pty Ltd (1994) 13 ACSR 261; Re Levi (1996) 19 ACSR 521; Re Madden (1996) 131 FLR 430; Re Allbuild Construction Co Pty Ltd (admin appt) [2000] WASC 227; Re Port Kennedy Resorts Pty Ltd (admin appt) [2000] WASC 302; (2001) 19 ACLC 328; Re Geraldton Building Co Pty Ltd (admin appt) [2000] WASC 320.…
Australasian Memory Pty Ltd v Brien
[2000] HCA 30 Para 1

…The amplitude of the power to make such orders as the court may consider appropriate under s 447A is supported by Australasian Memory Pty Ltd v Brien [2000] HCA 30; (2000) 200 CLR 270. Examples of orders made under this provision can be found in Ford's Principles of Corporation Law , vol 2 (57‑10‑07) [26.410]. A…
Re Java 452 Pty Ltd (Admin Appted);
[1999] VSC 252 Para 3

…the group who may wish to decide whether or not to seek leave to retake possession of the property under s 440C - cf Re Java 452 Pty Ltd (admin appt) [1999] VSC 252; (1999) 32 ACSR 507.…

Legislation cited in this decision · 1

Corporations Act 2001 (Cth)
1 mention (from Para 1)