RE OLD PAPA'S HOLDINGS LTD; EX PARTE WALLMAN [2001] WASC 188

Reported Decision:	(2001) 24 WAR 229
Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASC 188
Case No:	COR:220/2001	Heard:	4 JULY 2001
Coram:	OWEN J	Delivered:	4/07/01
No of pages:	6	Judgment Part:	1 of 1
Result:	Extension granted
PDF Version

Parties:	KIMBERLEY STUART WALLMAN
Catchwords:	Corporations Voluntary administration Application to extend time to reconvene adjourned second meeting of creditors Whether court has power to extend time Principles for exercise of discretion
Legislation:	Corporations Law, s 439B, s 447A
Case References:	Australasian Memory Pty Ltd v Brien (2000) 200 CLR 270 Mann v Abruzzi Sports Club Ltd (1994) 12 ACLC 137 Re Allbuild Constructions Pty Ltd (Administrator appointed); ex parte Featherby (2000) WASC 227 Re Bernsteen Pty Ltd v Newmore Pty Ltd (1995) 13 ACLC 1608 Re Ricon Constructions Pty Ltd (In Liquidation); ex parte MacDonald, unreported; SCt of NSW (Santow J); 16 December 1997 Re Strickland (2001) 19 ACLC 328 Re Western National Earthmoving Corporation Pty Ltd (1997) 15 ACLR 1665 Watson v Uniframes Ltd (1994) 55 FCR 556 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : RE OLD PAPA'S HOLDINGS LTD; EX PARTE WALLMAN [2001] WASC 188 CORAM : OWEN J HEARD : 4 JULY 2001 DELIVERED : 4 JULY 2001 FILE NO/S : COR 220 of 2001 MATTER : OLD PAPA'S HOLDINGS LTD (under administration) (ACN 079 764 319)

and

OLD PAPA'S CAFES PTY LTD (under administration) (ACN 092 571 125)

EX PARTE

KIMBERLEY STUART WALLMAN

Plaintiff

Catchwords:

Corporations - Voluntary administration - Application to extend time to reconvene adjourned second meeting of creditors - Whether court has power to extend time - Principles for exercise of discretion

Legislation:

Corporations Law, s 439B, s 447A

(Page 2)

Result:

Extension granted

Representation:

Counsel:

Plaintiff : Mr J C Giles

Solicitors:

Plaintiff : Solomon Brothers

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

Australasian Memory Pty Ltd v Brien (2000) 200 CLR 270
Mann v Abruzzi Sports Club Ltd (1994) 12 ACLC 137
Re Allbuild Constructions Pty Ltd (Administrator appointed); ex parte Featherby (2000) WASC 227
Re Bernsteen Pty Ltd v Newmore Pty Ltd (1995) 13 ACLC 1608
Re Ricon Constructions Pty Ltd (In Liquidation); ex parte MacDonald, unreported; SCt of NSW (Santow J); 16 December 1997
Re Strickland (2001) 19 ACLC 328
Re Western National Earthmoving Corporation Pty Ltd (1997) 15 ACLR 1665
Watson v Uniframes Ltd (1994) 55 FCR 556

Case(s) also cited:

Nil

(Page 3)

1 OWEN J: This is an application under s 447A of the Corporations Law, alternatively s 1322 of the Corporations Law, for an order to extend time for the plaintiff to convene the adjourned second meeting of creditors of Old Papa's Holdings Ltd and Old Papa's Cafes Ltd. Both companies are in voluntary administration and the plaintiff is the voluntary administrator of both.

2 The second meeting of creditors of each of Old Papa's Holdings Ltd and Old Papa's Cafes Ltd was held…

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: [2001] WASC 188
Decision Date

CaseChat Overview and Summary

The Supreme Court of Western Australia heard an application by Kimberley Stuart Wallman, the voluntary administrator of Old Papa's Holdings Ltd and Old Papa's Cafes Ltd, to extend the time for reconvening the second meeting of creditors. The companies were in voluntary administration, and the second meeting had been adjourned to allow the resolution of ongoing litigation concerning the validity of a lease held by Old Papa's Franchise Systems, a subsidiary of Holdings. The administrator argued that the outcome of the litigation would significantly impact the future of the companies, and an extension was necessary to allow the litigation to conclude.

The court was required to decide whether it had the jurisdiction to extend the time for reconvening the second meeting of creditors under section 447A of the Corporations Law and, if so, whether the discretion should be exercised in this case. The court examined the relevant statutory provisions and considered the principles for exercising such discretion, taking into account the interests of the companies, their creditors, and shareholders, as well as the statutory intent for speedy administration.

The court found that section 447A did confer the jurisdiction to extend the convening period and that the discretion should be exercised in this case. The court considered the detailed affidavit provided by the administrator, which outlined the companies' precarious financial position and the importance of the litigation outcome. The court also noted that the trial of the civil proceedings had not yet been scheduled and that it would likely take time to conclude. Balancing these factors with the statutory intent for expeditious administration, the court granted an extension to 1 October 2001, a date before which the litigation could reasonably be expected to conclude.

The court's decision was based on the specific circumstances of the case, including the detailed information provided by the administrator and the critical nature of the litigation outcome. The extension granted was for the shortest period consistent with achieving a just outcome for all parties involved, in line with the statutory intent.

Orders