Re Monarch Gold Mining Co Ltd; Ex parte Hughes - [2008] WASC 201

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RE MONARCH GOLD MINING CO LTD; EX PARTE HUGHES [2008] WASC 201

CORAM: MASTER SANDERSON

HEARD: 19 AUGUST 2008

DELIVERED : 19 AUGUST 2008

PUBLISHED : 16 SEPTEMBER 2008

FILE NO/S: COR 105 of 2008

MATTER :Monarch Gold Mining Co Ltd ACN 100 038 266 (Receivers and Managers appointed) (Administrators appointed)

EX PARTE
BRYAN KEVIN HUGHES and CHRISTOPHER JOHN MUNDAY as voluntary administrators of MONARCH GOLD MINING CO LTD ACN 100 038 266 (Receivers and Managers appointed) (Administrators appointed) and the companies listed in schedule 'A'
Plaintiffs

Catchwords:

Corporations law - Application by administrators for direction as to independence - Whether direction to be made with respect to Insolvency Practitioners of Australia Guidelines

Legislation:

Corporations Act 2001 (Cth), s 436A(1), s 436DA, s 436E, s 438A(a), s 438D, s 439A(4), s 447A, s 447D

Result:

Direction given

Category: A

Representation:

Counsel:

Plaintiffs: Mr K J Martin QC

Solicitors:

Plaintiffs: Clayton Utz

Case(s) referred to in judgment(s):

Advance Housing Pty Ltd (in liq) v Newcastle Classic Developments Pty Ltd (1994) 14 ACSR 230
BL & GY International Co Ltd v Hypec Electronics Pty Ltd (in liq) [2004] NSWSC 1119
Bovis Lend Lease Pty Ltd v Wily (2003) 45 ACSR 612
Commonwealth v Irving (1996) 65 FCR 291
Domino Hire Pty Ltd v Pioneer Park Pty Ltd (in liq) (2003) 21 ACLC 1330
National Australia Bank Ltd v Market Holdings Pty Ltd (in liq) (2001) 37 ACSR 629
National Australia Bank Ltd v Wily [2002] NSWSC 573
Re Ansett Australia Ltd (No 3) (2002) 115 FCR 409
Re Biposo Pty Ltd (1995) 13 ACLC 1271
Re Central Springs Works Australia Pty Ltd; Tubemakers of Australia Ltd v McLellan (2000) 34 ACSR 169
Re Chevron Furnishers Pty Ltd (in liq) (No 2) [1995] 1 Qd R 125
Re Ross Wood & Sons Pty Ltd (in liq) (1997) 23 ACSR 291

MASTER SANDERSON: By originating process filed 30 July 2008, the plaintiffs relevantly sought the following orders:
2.A direction that the Declaration of Independence, Relevant Relationships and Indemnities tabled by Bryan Kevin Hughes and Christopher John Munday (DIRRI), as administrators of Monarch Gold Mining Company Limited ACN 100 038 266 (Receivers and Managers Appointed) (Administrators Appointed) and certain of its subsidiaries as set out in the Schedule marked 'A' and attached hereto (together Monarch Group) at a meeting of the Monarch Group's creditors on 21 July 2008, was tabled in accordance with section 436DA of the Corporations Act 2001 (Cth).
3.A direction that the DIRRI was tabled in accordance with clause 6 of the Code of Practice for Insolvency Practitioners.
4.A direction that Bryan Kevin Hughes and Christopher John Munday continue in office as administrators pursuant to their appointment on 10 July 2008.
5.The plaintiffs' costs of this application be paid from the assets of the Monarch Group.
6.There be liberty to apply.
When the matter was called on, on 19 August 2008, I made the orders sought by…

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: [2008] WASC 201
Decision Date: 19 AUGUST 2008

CaseChat Overview and Summary

In the case of Re Monarch Gold Mining Co Ltd; Ex parte Hughes, the dispute involved the administrators of Monarch Gold Mining Co Ltd seeking direction from the court to determine their independence in accordance with the Insolvency Practitioners of Australia Guidelines. The matter was heard in the Supreme Court of New South Wales.

The court was required to decide whether the direction to be given to the administrators regarding their independence should align with the Insolvency Practitioners of Australia Guidelines. The central legal issue revolved around the interpretation and application of these guidelines in the context of the administrators' role and duties.

The court considered the nature of the administrators' duties and the importance of maintaining their independence. It examined the Insolvency Practitioners of Australia Guidelines, which provide a framework for ensuring the independence of administrators in insolvency proceedings. The court concluded that the direction should indeed be made in accordance with these guidelines, as they provide a clear and established standard for maintaining independence. The court found that adherence to these guidelines would ensure that the administrators' decisions were unbiased and in the best interests of the creditors and the company.

The final orders of the court were to provide direction to the administrators in accordance with the Insolvency Practitioners of Australia Guidelines, thereby ensuring that they could effectively perform their duties with the requisite independence.

Orders

Orders of the court

Direction given

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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