Re Foodora Australia Pty Ltd (Administrators Appointed) - [2018] NSWSC 1426

Supreme Court

New South Wales

Medium Neutral Citation: In the matter of Foodora Australia Pty Ltd (Administrators Appointed) [2018] NSWSC 1426
Hearing dates: 11 September 2018
Decision date: 11 September 2018
Jurisdiction: Equity - Corporations List
Before: Black J
Decision:
Orders made validating appointment of administrator and extending the convening period for the second meeting of the company’s creditors.

Catchwords:
CORPORATIONS – voluntary administration – administrator – whether order validating appointment of administrator should be made under s 447A of the Corporations Act 2001 (Cth).
CORPORATIONS – voluntary administration – administrator – meeting of creditors – whether order to extend convening period for second meeting of creditors should be made under s 439A of Corporations Act 2001 (Cth).
Legislation Cited: Corporations Act 2001 (Cth), ss 128, 129, 435A, 436, 439A, 447A, Pt 5.3A
Cases Cited: - Ansett Australia Ground Staff Superannuation Plan Pty Ltd v Ansett Australia Ltd [2004] FCA 130; (2004) 49 ACSR 1
- Australasian Memory Pty Ltd v Brien [2000] HCA 30; (2000) 200 CLR 270
- Calabretta v Redpen Developments Pty Ltd (in liq) (recs and mgrs apptd) [2010] FCA 81; (2010) 183 FCR 47
- Cawthorn v Keira Constructions Pty Ltd (1994) 33 NSWLR 607
- Correa v Whittingham [2013] NSWCA 263; (2013) 278 FLR 310
- Mann v Abruzzi Sports Club Ltd (1994) 12 ACSR 611
- National Australia Bank Limited v Horne [2011] VSCA 280; (2011) 83 ACSR 639
- Re Diamond Press Australia Pty Ltd [2001] NSWSC 313
- Re Renex Holdings (Dandenong) 1 Pty Ltd (admins apptd) [2015] NSWSC 2002
- Re Riviera Group Pty Ltd (admins apptd) [2009] NSWSC 585; (2009) 72 ACSR 352
Category: Principal judgment
Parties: Simon Cathro and Ivan Glavas in their capacity as joint and several administrators of Foodora Australia Pty Ltd (ACN 605 948 052) (Administrators Appointed) (First Plaintiff)
Foodora Australia Pty Ltd (ACN 605 948 052) (Administrators Appointed) (Second Plaintiff)
Representation:
Counsel:
C H Withers (Plaintiffs)
Solicitors:
Mills Oakley (Plaintiffs)

File Number(s): 2018/278087

Judgment – ex tempore (revised 13 september 2018)

By Originating Process filed today, 11 September 2018, by leave, the First Plaintiffs, Mr Simon Cathro and Mr Ivan Glavas in their capacity as joint and several administrators (“Administrators”) of the Second Plaintiff, Foodora Australia Pty Ltd (admins apptd) ("Company"), seek an order under s 439A(6) of the Corporations Act 2001 (Cth) that the time for them to convene the second meeting of creditors of the Company be extended up to and including 9 November 2018 and consequential orders. I will return to the circumstances in which that order is sought below.

Whether the Administrators were validly appointed

Before turning to that order, I should note that a preliminary issue arose at the hearing today and, by oral application, Mr Withers, who appears for the Plaintiffs, made a further application for an order under s 447A of the Corporations Act that Part 5.3A of the Act is to operate in relation to the Company such that 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.

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Details

Case: [2018] NSWSC 1426
Decision Date: 11 September 2018

CaseChat Overview and Summary

Foodora Australia Pty Ltd, a company operating in the food delivery sector, found itself in financial difficulty and entered into voluntary administration. The company's administrators applied to the court for an order validating the appointment of the administrators and for an extension of the convening period for a second meeting of creditors. The applicants sought these orders under specific sections of the Corporations Act 2001 (Cth). The primary legal issue before the court was whether the orders sought by the administrators should indeed be made under the specified sections of the Act. The court needed to determine if the application for the validation of the administrators' appointment was properly made under section 447A and if the application for the extension of the convening period was properly made under section 439A.

The court examined the provisions of the Corporations Act and the circumstances of the case to determine the appropriate legal framework for the administrators' applications. The court concluded that the application for the validation of the administrators' appointment was correctly made under section 447A, as it provided the necessary process for such validations. Similarly, the application for the extension of the convening period for the second meeting of creditors was appropriately made under section 439A, as this section outlines the procedure for extending the convening period. The court found that the administrators had followed the correct legal process in making their applications.

Having determined that the applications were made under the correct sections of the Corporations Act, the court proceeded to grant the orders sought by the administrators. The court validated the appointment of the administrators and extended the convening period for the second meeting of creditors as requested. This decision ensured that the administrators could continue their role in managing the company's voluntary administration and that the creditors had sufficient time to convene for the second meeting.

Orders