Re Kettridges Pty Ltd (Administrators Appointed); [No 2]
[2025] WASC 407
•26 SEPTEMBER 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: RE KETTRIDGES PTY LTD (ADMINISTRATORS APPOINTED); EX PARTE DOMINISH, SHAW AND ALBARRAN [No 2] [2025] WASC 407
CORAM: HILL J
HEARD: 1 AUGUST 2025
DELIVERED : 1 AUGUST 2025
PUBLISHED : 26 SEPTEMBER 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 - External administration - Application by administrators to extend convening period for second creditors' meeting - Whether modification in creditors' interests as a whole - Whether interests of any persons prejudiced by modification protected by terms of orders - Turns on own facts
Corporations - External administration - Application for directions that administrators are justified in treating trust property as property of the company - Turns on own facts
Legislation:
Corporations Act 2001 (Cth) s 439A(6), sch 2 s 90-15, s 90-20
Supreme Court (Corporations) Rules 2004 (WA) r 2.8
Result:
Application granted in part
Category: B
Representation:
Counsel:
| First Plaintiff | : | W Zheliang |
| Second Plaintiff | : | W Zheliang |
| Third Plaintiff | : | W Zheliang |
Solicitors:
| First Plaintiff | : | Mendelawitz Morton Commercial Lawyers |
| Second Plaintiff | : | Mendelawitz Morton Commercial Lawyers |
| Third Plaintiff | : | Mendelawitz Morton Commercial Lawyers |
Case(s) referred to in decision(s):
Diamond Press Australia Limited [2001] NSWSC 313
Mighty River International Limited v Hughes [2018] HCA 38
Re Kettridges Pty Ltd (admin appt); Ex parte Dominish, Shaw and Albarran [2025] WASC 311
Shaw and Albarran (Joint and Several Administrators of Home Art Building Group Pty Ltd) v Home Art Building Group Pty Ltd (Administrators Appointed) [2016] WASC 274
Tucker (Administrator) v Bolten (Trustee), in the matter of Quintis Leasing Pty Ltd (Administrators Appointed) (No 2) [2024] FCA 46
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 28 July 2025, the plaintiffs filed an interlocutory process seeking an extension of the convening period of the second meeting of creditors of Kettridges Pty Ltd (Company), pursuant to s 439A(6) of the Corporations Act 2001 (Act). The extension is sought for a period of 90 days, until 1 November 2025. Unless an extension is granted by the court, the meeting is required to be convened on or about 1 August 2025 with the meeting to be held on or about 8 August 2025.[1]
[1] Affidavit of Aaron Joseph Dominish filed 28 July 2025 [16].
Originally, the plaintiffs also sought orders appointing the plaintiffs as receivers of the assets of the Mark Huisman Family Trust (Trust), and directions pursuant to s 90‑15 and 90‑20 of the Insolvency Practice Schedule (Corporations) (IPS) (being sch 2 to the Act) that the plaintiffs are justified in treating Trust assets as assets of the Company.
The plaintiffs filed a certificate of urgency certifying that the interlocutory process was required to be listed for hearing 'immediately'. The basis for the urgency is that the convening period for the second creditors' meeting expires today. For that reason, the application was listed for hearing before me this morning.
In support of the application, the plaintiffs rely on five affidavits, being:
(a)two affidavits of the first-named plaintiff, Aaron Joseph Dominish, filed 11 and 28 July 2025;
(b)an affidavit of Boika Simeva Panov, a solicitor employed by the plaintiffs' solicitors, filed 16 July 2025; and
(c)two affidavits of Yutong Wu, a solicitor employed by the plaintiffs' solicitors, filed 30 and 31 July 2025.
I have also had the benefit of a written outline of submissions and brief oral submissions from counsel who appeared before me this morning.
On the evidence before me, I am satisfied the application has been served on the Australian Securities and Investments Commission (ASIC) as required by r 2.8 of the Supreme Court (Corporations) Rules 2004 (WA), and that notice of the application has been given to creditors. Neither ASIC nor any creditor has given notice that they wished to be heard on the application.[2]
[2] Affidavit of Yutong Wu filed 30 July 2025 [5], 'YW-1'; Affidavit of Aaron Joseph Dominish filed 28 July 2025 [36] - [38], 'AJD-8'.
Factual background
Much of the factual background to this application was canvassed in my previous decision validating the plaintiffs' appointment as administrators of the Company.[3] I do not intend to repeat that summary. In these reasons, I have adopted the definitions used in the original reasons.
[3] Re Kettridges Pty Ltd (admin appt); Ex parte Dominish, Shaw and Albarran [2025] WASC 311.
Since that date, the following developments have occurred.
On 21 July 2025, Rabobank appointed Martin Bruce Jones, Matthew David Woods, and Sarah Emily Seeckts as receivers and managers of the Company. On 25 July 2025, following repayment of the debt owed by the Company to Rabobank, the receivers and managers retired.[4]
[4] Affidavit of Aaron Joseph Dominish filed 28 July 2025 [24] - [30], 'AJD-4' - 'AJD-7'.
Pursuant to cl 15.3 of the original deed that established the Trust, on a trustee company entering into liquidation (whether compulsory or voluntary), the Company vacated the office of trustee.[5] This clause has, however, subsequently been deleted by a deed of variation dated 4 November 2005.[6]
[5] Affidavit of Aaron Joseph Dominish filed 11 July 2025 [21], 'AJD-6'.
[6] Affidavit of Aaron Joseph Dominish filed 28 July 2025, 'AJD-9', cl 1.20.
Based on the plaintiffs' investigation into the Trust to date, they believe:[7]
(a)the Company only acted in its capacity as trustee of the Trust and did not carry on business in any other capacity;
(b)pursuant to the express terms of the deed, the Company is entitled to an indemnity; and
(c)the Company has a lien or charge over the Trust assets, which secures its right of indemnity.
[7] Affidavit of Aaron Joseph Dominish filed 11 July 2025 [19]; Affidavit of Aaron Joseph Dominish filed 28 July 2025 [33] - [34], 'AJD-9'.
If orders are made to extend the convening period, the plaintiffs intend to undertake the following tasks:[8]
(a)conduct investigations into the financial position and historical affairs of the Company;
(b)prepare documentation associated with their proposed sale campaign;
(c)conduct a marketing campaign for the Company and formalise any transaction documentation associated with the sale; and
(d)report to creditors on the outcome of the above matters.
[8] Affidavit of Aaron Joseph Dominish filed 28 July 2025 [21.1].
To date, the plaintiffs have been unable to complete their investigations, particularly given the initial issues raised concerning the validity of their appointment and ongoing negotiations with Rabobank. They are not presently in a position to make a considered recommendation to creditors and believe they will require a further 90 days to conclude this process.
Should an extension of time to convene the second creditors' meeting be granted?
The plaintiffs' application for a further extension of time is brought pursuant to s 439A(6) of the Act. There are well known legal principles governing an extension of time under this section.
In considering whether to grant the further extension, the court is required to consider and take into account the objects and scheme of pt 5.3A of the Act, as set out in s 435A. This requires the court, in reaching its decision, to maintain an appropriate balance between an expectation that an external administration will be undertaken in a relatively speedy and summary manner, with a need to ensure that an administration is not concluded without consideration of sensible and constructive options directed towards maximising returns for creditors and any possible return for shareholders.[9] The court is also required to take into account any possible detriment to third parties, including the suspension of rights and remedies of secured creditors, lessors, and others.[10]
[9] Tucker (Administrator) v Bolten (Trustee), in the matter of Quintis Leasing Pty Ltd (Administrators Appointed) (No 2) [2024] FCA 46 [54], citing Diamond Press Australia Limited [2001] NSWSC 313 [10].
[10] Shaw and Albarran (Joint and Several Administrators of Home Art Building Group Pty Ltd) v Home Art Building Group Pty Ltd (Administrators Appointed) [2016] WASC 274 [18].
The court will generally exercise its discretion to extend the convening period where one or more of the established categories are satisfied, where there is no evidence of material prejudice to those affected by the extension, and the court is satisfied that the estimate of time required has a reasonable basis.[11]
[11] Mighty River International Limited v Hughes [2018] HCA 38 [73].
On the evidence before me, I accept that further time is needed to conclude the necessary investigations into the financial affairs of the Company, and to investigate whether a sale of the Company's assets or a deed of company arrangement (DOCA) can be entered into.
For the following reasons, I am satisfied that it is appropriate in the circumstances of this case to grant the requested application for an extension until 1 November 2025.
First, I accept that the administration of the Company has had some initial challenges associated both with the validity of the plaintiffs' appointment as administrators of the Company and the requirement to urgently deal with Rabobank.
Second, an extension of the convening period is required to explore whether a sale of the Company or a DOCA can be proposed and negotiated, which may result in a better return to creditors than a winding up of the Company. These matters are consistent with the purposes and objects of pt 5.3A of the Act as set out in s 435A.
Third, an extension is required to enable the plaintiffs to finalise their report to creditors and to provide a considered recommendation to them as to the future of the Company and the Trust.
Fourth, the plaintiffs' opinion is that an extension of time is required for a period of 90 days. On the evidence before me, I am satisfied there is a reasonable basis for this estimate.
Finally, and importantly, no creditor or other relevant party has appeared before me today or raised any opposition to the proposed extension.[12] I am satisfied on all the evidence before me that the return to creditors is likely to be significantly enhanced if a further extension is granted. In my view, the potential benefit of the extension outweighs any potential prejudice to creditors and is in the best interest of creditors as a whole.
[12] Affidavit of Aaron Joseph Dominish filed 28 July 2025 [38].
Should the plaintiffs be appointed as receivers of the Trust and the directions sought be made?
The legal principles that govern the application are also well known.
In this case, the Company has not yet been removed as trustee under the terms of the Trust deed.
For this reason, I do not consider it is necessary for the plaintiffs to be appointed as receiver of the Trust, as the Company retains all rights of the sale under the terms of the Trust deed.
Mr Dominish's evidence, which I accept, is that the Company has only acquired assets and incurred liabilities in its capacity as trustee of the Trust.
For this reason, I accept that it is appropriate to make directions under s 90‑15 of the IPS that the plaintiffs will be acting properly and are justified in proceeding to conduct the affairs of the Trust on the basis that the business and assets of the Company compromised the assets of the Trust.
Conclusion
The Company sought orders for the cost of the application to be paid from the Trust property. In my view, this is the appropriate cost order.
I also accept that the form of the orders sought, in terms of service of the court's orders and the allowance for any aggrieved party to apply to this court to vacate or vary these orders, will protect the creditors of the Company from any possible prejudice arising from this application.
For these reasons, it was my view that it was appropriate to make orders broadly in terms of paragraphs 1 ‑ 2, and 4 ‑ 8 the plaintiffs' minute of proposed orders.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KS
Associate to the Hon Justice Hill
26 SEPTEMBER 2025
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