Re Kettridges Pty Ltd (Administrators Appointed) - [2025] WASC 311

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   RE KETTRIDGES PTY LTD (ADMINISTRATORS APPOINTED); EX PARTE DOMINISH, SHAW AND ALBARRAN [2025] WASC 311
CORAM:   HILL J
HEARD:   17 JULY 2025
DELIVERED          :   17 JULY 2025
PUBLISHED           :   5 AUGUST 2025
FILE NO/S:   COR 106 of 2025
MATTER:   IN THE MATTER OF KETTRIDGES PTY LTD (ADMINISTRATORS APPOINTED)
EX PARTE

AARON JOSEPH DOMINISH as administrator of KETTRIDGES PTY LTD (ADMINISTRATORS APPOINTED)
First Plaintiff

CAMERON HUGH SHAW as administrator of KETTRIDGES PTY LTD (ADMINISTRATORS APPOINTED)
Second Plaintiff

RICHARD ALBARRAN as administrator of KETTRIDGES PTY LTD (ADMINISTRATORS APPOINTED)
Third Plaintiff

Catchwords:

Corporations - Voluntary administration - Whether administrators validly appointed - Purported appointment of administrators after sudden death of sole director - Whether orders should be made under s 447A of the Corporations Act 2001 (Cth) to validate the appointment of the plaintiffs as administrators

Legislation:

Corporations Act 2001 (Cth) s 447A

Result:

Application granted

Category: B

Representation:

Counsel:

First Plaintiff	:	P Edgar SC & J Cook
Second Plaintiff	:	P Edgar SC & J Cook
Third Plaintiff	:	P Edgar SC & J Cook

Solicitors:

First Plaintiff	:	Mendelawitz Morton Commercial Lawyers
Second Plaintiff	:	Mendelawitz Morton Commercial Lawyers
Third Plaintiff	:	Mendelawitz Morton Commercial Lawyers

Cases referred to in decision:

Calabretta v Redpen Developments Pty Ltd (in liq) (2010) 183 FCR 47
Correa v Whittingham [2013] NSWCA 263; (2013) 278 FLR 310
Hayes v Doran [No 2] [2012] WASC 486
Honest Remark Pty Ltd v Allstate Explorations NL [2006] NSWSC 735; (2006) 234 ALR 765
Hutton, Re Big Village Australia Pty Ltd (Administrators Appointed) [2023] FCA 48
Mancini v Mancini (1999) 17 ACLC 1570
Re New Tel Ltd [2004] FCA 1154; (2004) 210 ALR 270
Re Pasdonnay Pty Ltd (ACN 009 131 622) (admins apptd); McDonald (2005) 53 ACSR 717

HILL J:

(This judgment was delivered extemporaneously and has been edited from the transcript to include references, headings and to correct matters of grammar and expression.)

On 11 July 2025, the plaintiffs filed an originating process seeking orders under s 447A(1), alternatively s 1322(4)(a), of the Corporations Act 2001 (Cth) (Act) to validate their appointment as administrators of Kettridges Pty Ltd (Company), as well as various ancillary orders.
On the same date the plaintiffs filed a certificate of urgency certifying that the application was of such an urgent nature that it was required to be listed at the 'next available opportunity'. The basis for the urgency is the risk to the Company's operations, including the continued employment of its employees, if the application is not heard and determined promptly.
For this reason, the application was listed before me this morning on an urgent basis.
In support of the application, the plaintiffs rely on the affidavit of the first-named plaintiff, Aaron Joseph Dominish, filed 11 July 2025, and an affidavit of Boika Simeva Panov, a solicitor employed by the plaintiffs' solicitors, filed 16 July 2025. I have also had the benefit of two written outlines of submissions, as well as oral submissions from senior counsel who appeared before me this morning.

Factual background

The Company was incorporated in 1994 and is the trustee of the Mark Huisman Family Trust (Trust). It trades through the business name of Kettridges, and its primary business is the manufacturing and sale of livestock feed products.[1]
[1] Affidavit of Aaron Joseph Dominish filed 11 July 2025 [10], [15], [17], 'AJD-4', 'AJD-5'.
Since March 2006, Mr Huisman has been the sole director and secretary of the Company. From March 1996 until March 2006, his wife, Keeva Jane Ann Huisman, was also a director and secretary of the Company. There are two issued shares in the Company, one owned by Mr Huisman and the other by Mrs Huisman.[2]
[2] Affidavit of Aaron Joseph Dominish filed 11 July 2025 'AJD-2'.
On 1 July 2025, Mr Huisman died suddenly. This left the Company without a director and with Mrs Huisman as the only shareholder of the Company. Mr Huisman's will appointed Mrs Huisman as the executor of his estate, but at this stage, probate has not been granted.[3]
[3] Affidavit of Aaron Joseph Dominish filed 11 July 2025 [28.1 - 28.3], 'AJD-24'.
On 4 July 2025, the plaintiffs met with Mrs Huisman and representatives of the Company. At this meeting, the plaintiffs were advised of various operational and financial issues, including that Mrs Huisman was unwilling to continue the Company's operations due to her grief at the sudden passing of her husband and her lack of a relevant skill set. Mrs Huisman was also concerned about significant amounts owing to two unsecured creditors.[4]
[4] Affidavit of Aaron Joseph Dominish filed 11 July 2025 [28.4 - 28.5].
On 4 July 2025, Mrs Huisman executed minutes of resolution of the sole director and shareholder of the Company. The minute states that it was executed in her capacity as executor of Mr Huisman's estate, as well as shareholder of the Company. The minute resolved that the Company was likely to become insolvent at a future time and appointed the plaintiffs (Administrators) as administrators of the Company.[5]
[5] Affidavit of Aaron Joseph Dominish filed 11 July 2025 [28.8], 'AJD-25'. [8], 'AJD-1'.
Since their appointment, the Administrators have undertaken various investigations.[6] At this stage, Mr Dominish believes that the total current debts of the Company significantly exceed its total current assets.[7]
[6] Affidavit of Aaron Joseph Dominish filed 11 July 2025 [23] - [27], 'AJD-11'-'AJD-23'.
[7] Affidavit of Aaron Joseph Dominish filed 11 July 2025 [12], [28.19], 'AJD-2'.
Following the appointment of the plaintiffs, the solicitors of Cooperative Rabobank U.A. (Rabobank), a secured creditor of the Company, raised concerns regarding the validity of the Administrators' appointment.[8] As a consequence of these concerns, the plaintiffs filed this application. The solicitors for Rabobank have subsequently confirmed that they do not wish to be heard on the application and did not appear before me at the hearing today.
[8] Affidavit of Aaron Joseph Dominish filed 11 July 2025 'AJD-26', 'AJD-28'.
On 14 July 2025, Rabobank issued a notice of default and demand to the Company and its related entities. Subsequently, on 15 July 2025, Rabobank gave notice to the plaintiffs' solicitors of its intention to appoint receivers and managers to the Company. The evidence before the court is that there are ongoing discussions between the plaintiffs and Rabobank about paying out Rabobank's loan in full. As at the time of the hearing, no formal agreement had been entered into, nor had Rabobank appointed receivers and managers.[9]
[9] Affidavit of Boika Simeva Panov filed 16 July 2025 [9] - [27], 'BP-3' - 'BP-11'.
On 16 July 2025, the plaintiffs held the first creditors' meeting of the Company. The issue concerning the validity of the appointment of the Administrators was raised at the creditors' meeting. No creditor asked any questions or raised any concern in relation to the plaintiffs' appointment. At the meeting, the creditors resolved to confirm the appointment of the Administrators, as well as to appoint a committee of inspection.[10]
[10] Affidavit of Boika Simeva Panov filed 16 July 2025 [40] - [41].

Should orders be made validating the appointment of the Administrators?

Section 447A of the Act permits the court to make orders to cure any defects in the appointment of an administrator.[11] Pursuant to s 447A(4)(f) of the Act, an administrator, who has been invalidly appointed and acted on the basis of the purported appointment, has standing to make an application as an 'interested person'.[12] On this basis, I am satisfied the plaintiffs have standing to bring the current application.
[11] Hayes v Doran [No 2] [2012] WASC 486 [406]; Hutton, Re Big Village Australia Pty Ltd (Administrators Appointed) [2023] FCA 48 [30] - [32].
[12] Re Pasdonnay Pty Ltd (ACN 009 131 622) (admins apptd); McDonald (2005) 53 ACSR 717 [17].
In exercising the broad discretion conferred by s 447A(1), the court has regard to all of the circumstances of the case that have been brought to the court's attention by the applicant for relief and by those who have an interest in the matter and who may be affected by the granting of relief.[13]
[13] Calabretta v Redpen Developments Pty Ltd (in liq) (2010) 183 FCR 47, 53 [37].
While the court's power under s 447A is broad, it is important to stress that it is not unlimited.[14] The power vested in the court by s 447A is a statutory power which can only be exercised for the purpose for which it has been granted. For this reason, any order that is made under s 447A must have a nexus with the objects of pt 5.3A of the Act and how pt 5.3A is to operate in relation to a particular company.[15]
[14] Correa v Whittingham [2013] NSWCA 263; (2013) 278 FLR 310 [2] ‑ [8], [97] ‑ [105], [304], citing Honest Remark Pty Ltd v Allstate Explorations NL [2006] NSWSC 735; (2006) 234 ALR 765 and Re New Tel Ltd [2004] FCA 1154; (2004) 210 ALR 270 [3].
[15] Honest Remark Pty Ltd v Allstate Explorations NL [2006] NSWSC 735; (2006) 234 ALR 765 [66].
Other relevant considerations that the court considers on an s 447A application were summarised by Kenneth Martin J in Hayes v Doran [No 2]. These include:[16]
(a)the likely insolvency of the company;
(b)whether the administrator(s) made inquiries to confirm the validity of their appointment, including seeking independent legal advice;
(c)whether it would be potentially disruptive to the affairs of the company for there to be the capacity to challenge the validity of what has occurred in the administration to date;
(d)whether it would be wrong to give the imprimatur of the court to the conduct giving rise to the purported appointment;
(e)…
(f)whether any creditor opposes the application. (citations omitted)
[16] Hayes v Doran [No 2] [279].
In this case, it is my view that the plaintiffs have not been validly appointed as administrators. The document signed by Mrs Huisman was signed both in her personal capacity and also as executor of Mr Huisman's will. While she is nominated in his will as executor, probate has not yet been granted. In any event, insofar as the minute is purported to be signed by her as a director of the Company, it is my view that as at 4 July 2025, this was ineffective. This is because the office of a director is a personal responsibility and can only be discharged by the person who holds the office or who acts in that capacity.[17]
[17] Mancini v Mancini (1999) 17 ACLC 1570 [30].
That said, for the following reasons, I am satisfied that in the circumstances of this case it is appropriate to make orders to validate the appointment of the Administrators.
First, as I have already indicated, while I accept the plaintiffs have not been validly appointed as the administrators of the Company under s 436A of the Act given that their appointment took place after Mr Huisman's death, pending a grant of probate, there was no mechanism by which a shareholders' meeting could be held or for anyone to be validly appointed as a director of the Company.[18] Although Mrs Huisman is not currently a director of the Company, and was not a director as at 4 July 2025, she is a 50% shareholder and was previously a director of the Company. I accept that on the death of Mr Huisman, urgent action was required in the interests of the Company, its creditors and shareholders, and that Mrs Huisman was the only person in the position to bring this about. If the validity of the plaintiffs' appointment is not recognised by the court, the Company would be deprived of the potential benefits of pt 5.3A of the Act.
[18] Plaintiffs' submissions filed 14 July 2025 [15].
Second, the plaintiffs have been acting as administrators for almost two weeks now and have taken substantive steps in relation to the administration, including convening and holding the first creditors' meeting, and negotiating a potential solution with Rabobank. Unless the question around the validity of their appointment is resolved, the ongoing uncertainty about their appointment will be disruptive to the Company and will create further inconvenience and potential loss to the creditors of the Company.
Third, there is no suggestion of bad faith or improper behaviour by Mrs Huisman in the process which led to the appointment of the Administrators. The evidence of Mr Dominish, which I accept, supports an inference that Mrs Huisman acted honestly and in the best interests of the Company (including its creditors) in seeking to appoint the Administrators.
Fourth, on the evidence before me, I accept that the Company is either insolvent or likely to become insolvent in the near future, and that it is appropriate and proper that the Company be the subject of external administration.
Fifth, while an issue has been raised by the Company's secured creditor about the validity of the appointment of the Administrators, no one appeared at today's hearing to oppose the orders that have been sought.
Sixth, there is no evidence that there would be any prejudice to a party if the orders are made. In contrast, if the orders are not made, I consider there will be significant prejudice to the Company. This includes the possibility of a challenge to the validity of anything that has occurred in the administration to date, as well as the uncertainty that will arise for both employees and creditors of the Company. I also consider there would be potential prejudice to the plaintiffs in relation to their entitlement to a statutory indemnity as well as their remuneration.
In my view, the orders that are sought by the Administrators are consistent with the objects of pt 5.3A of the Act. Recognising the appointment of the Administrators will further the objects of pt 5.3A. Mr Dominish's evidence, which I accept, is that the Administrators intend to either negotiate a sale of the Company or propose and negotiate a deed of company arrangement.[19] Both of these options are consistent with the purposes and objects of pt 5.3A of the Act.
[19] Affidavit of Aaron Joseph Dominish filed 11 July 2025 [29].

Conclusion and Orders

For these reasons, it is my view that it is appropriate to make orders in terms of paragraph 1 of the plaintiffs' originating process.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KC
Associate to the Honourable Justice Hill
5 AUGUST 2025