Re Macquarie Medical Holdings
[2003] NSWSC 277
•19 March 2003
CITATION: Re Macquarie Medical Holdings [2003] NSWSC 277 revised - 24/07/2003 HEARING DATE(S): 19 March 2003 JUDGMENT DATE:
19 March 2003JURISDICTION:
EquityJUDGMENT OF: Campbell J DECISION: Time extended, reserving leave to any person claiming to be prejudiced to make application to vary the orders CATCHWORDS: CORPORATIONS - voluntary administration - extension of time for holding second meeting of creditors - power to extend for more than sixty days after the first day on which meeting was held LEGISLATION CITED: Corporations Act CASES CITED: Dean-Willcocks (Administrators of Powerline GES Pty Ltd) v Powerline GES Pty Limited (Joint Administrators Appointed) [2002] NSWSC 40; (2002) ACSR 516
Re Double V Marketing Pty Limited (in admin) (1995) 16 ACSR 498
Re LOCM Pty Limited (1997) 15 ACLC 1576PARTIES :
Andrew Hugh Jenner Wily (in his capacity as administrator) - (P)
Macquarie Medical Holdings Pty Limited (Receiver & Managers Appointed) - (D)FILE NUMBER(S): SC 1965/03 COUNSEL: J K Chippindall - (P) SOLICITORS: M D Nikolaidis & Co - (P)
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST
CAMPBELL J
WEDNESDAY 19 MARCH 2003
1965/03 ANDREW HUGH JENNER WILY (in his capacity as administrator of Macquarie Medical Holdings Pty Ltd) v MACQUARIE MEDICAL HOLDINGS (Receiver & Manager Appointed)
JUDGMENT- Ex tempore
1 HIS HONOUR: This is an application by the administrator of Macquarie Medical Holdings Pty Limited to extend the time for holding a second meeting of creditors of that company. The second meeting of creditors has already been convened, and is due to be held tomorrow.
2 The application is that the court permit that meeting to be adjourned to 30 June 2003.
3 The company operates a medical centre at Macquarie Shopping Centre at North Ryde in leased premises. It granted an option to purchase certain assets connected with its business to Endeavour Health Services Pty Limited, a company from whom it had borrowed money. Endeavour Health Services had, prior to the appointment of the administrator, appointed a receiver and manager of the business. That appointment of receiver and manager took place on 12 November 2002.
4 It was on 18 December 2002 that Mr Wily, the present applicant, was appointed as administrator. The first meeting of creditors of the company took place on 24 December 2002.
5 Until comparatively recently, the second meeting of creditors, due tomorrow, was to have been presented with a recommendation that the company go into liquidation. All that changed this morning. This morning, the administrator received notification from Endeavour Health Services that it exercised the option to purchase.
6 The terms on which the option is exercisable provide for the purchase price of the assets, which are being purchased, to include an amount equal to three times the earnings before interest, taxes, depreciation and amortisation of the business for the 12 month period prior to the completion date. The completion date is such that the date for determination of the amount payable will be 30 April 2003.
7 The administrator has some idea of the amount which might be received on exercise of the option. His present view is that the amount generated will be not less than a million and fifty thousand dollars, and might be as high as $2.5 million. Depending where in that range the actual price lies, the creditors will be able to be paid either substantially or completely. Thus, the administrator wishes to have a time to be able to allow the exercise of the option to run its course, to be able to find out how much money will actually be available to the creditors, and, in light of that information, to put together a scheme, or perhaps, to have the administration end completely.
8 The administrator seeks to extend the time for holding of the second meeting of creditors to 30 June 2003, to enable these various steps to occur.
9 Under s.439B of the Corporations Act, a meeting which is convened under s.439A may be adjourned from time to time, but that section says it cannot be adjourned to a day which is more than 60 days after the first day on which the meeting was held.
10 Notwithstanding what s.439B says, a construction of the Act has been adopted whereby s.447A has been accepted by various judges as conferring a power on the court to extend the period of 60 days referred to in s.439B(2). Section 447A provides:
- “The court may make such order as it thinks appropriate about how this Part is to operate in relation to a particular company.”
11 I refer to Re LOCM Pty Limited (1997) 15 ACLC 1576, Re Double V Marketing Pty Limited (in admin) (1995) 16 ACSR 498, and Dean-Willcocks & Anor (Administrators of Powerline GES Pty Ltd) v Powerline GES Pty Limited (Joint Administrators Appointed) [2002] NSWSC 40; (2002) 40 ACSR 516.
12 There being power to extend the time for the second meeting in this fashion, it seems to me that it is appropriate to extend it in the way in which the administrator seeks.
13 The administrator has stated in an affidavit that he is not aware of prejudice to any party arising from extending the time of the voluntary administration. Even so, it is appropriate to adopt the precaution which has been adopted in previous cases, of reserving leave to any person claiming to be prejudiced to make application to vary the orders.
14 I make orders in accordance with the short minutes of order which I initial, date today’s date and place with the papers.
15 On the undertaking of Mr Leon Nikolaides to pay any fees which might be payable, I grant leave to file in court an originating process in a form which I initial and date today’s date.
16 The applicant will forthwith notify the receiver of Macquarie Medical Holdings Pty Limited of the orders made today. I grant leave to file in court an affidavit of Andrew Hugh Jenner Wily sworn 19 March 2003.
17 I note the Exhibits AHJW1 to AHJW12 to that affidavit of Mr Wiley will together be Exhibits AHJW1-AHJW12 in the application. Those exhibits may be returned.
18 These orders may be entered forthwith.
Last Modified: 07/28/2003
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