Re Open Telecommunications Ltd;

[2002] NSWSC 930

CITATION:	Re Open Telecommunications Ltd; Ex parte Robert William Whitton and Peter George Yates as Joint Administrators [2002] NSWSC 930
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 4820/02
HEARING DATE(S):	27/09/02
JUDGMENT DATE:	27 September 2002
PARTIES :	Robert William Whitton and Peter George Yates (P)
JUDGMENT OF:	Young CJ in Eq

COUNSEL :	J Stoljar (P)
SOLICITORS:	Gilbert & Tobin (P)
CATCHWORDS:	CORPORATIONS [180]- Administration- Creditors' meeting- Extension of date of adjournment of meeting.
LEGISLATION CITED:	Corporations Act 2001, ss 439B(2), 447A
CASES CITED:	Cawthorn v Keira Constructions Pty Ltd (1994) 33 NSWLR 607 Re Double V Marketing Pty Ltd (1995) 16 ACSR 498 Re LOCM Pty Ltd (1997) 15 ACLC 1576
DECISION:	Orders made.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Friday 27 September 2002

4820/02 – RE OPEN TELECOMMUNICATIONS LTD; EX PARTE ROBERT WILLIAM WHITTON AND PETER GEORGE YATES AS JOINT ADMINISTRATORS

JUDGMENT

1 HIS HONOUR: This is an application made by administrators of Open Telecommunications Ltd to postpone the adjourned second meeting of creditors of that company.

2 The meeting was duly convened and held on 8 August 2002. The creditors resolved that the meeting be adjourned and, bearing in mind the structure of s 439B(2) of the Corporations Act 2001, resolved that the meeting be adjourned for no more than sixty days.

3 Although the creditors had the Act in mind in the resolution they made, it seems to me that this sort of resolution really should be for adjournment to a date certain, if at all possible. This is because such a definite resolution saves costs in the administration. Even if that is not possible, the resolution should set out the machinery for bringing about the adjourned meeting.

4 Whilst the company is in life, it is usually not necessary to provide this machinery because the company's constitution provides for who may convene meetings and for notification of adjourned meetings. There does not appear to be any such machinery in Pt 5.3A of the Corporations Act, so the meeting must supply it. Where the meeting does not supply it then the court needs to supply it in making an order under s 447A of the Corporations Act.

5 The initial application was to extend the time for convening the adjourned meeting, but that application has been abandoned in view of the decision in Re LOCM Pty Ltd (1997) 15 ACLC 1576.

6 So far as the merits are concerned, I have said on previous occasions that because of the legislative intent that administration shall be concluded speedily the court must always look critically at applications for extension of time. However, in the instant case, in view of what is in the affidavit of Mr Yates, the circumstances show that the present is a proper case to extend the time for twenty-one days.

7 The proper order is pursuant to s 447A following what I said in Cawthorn v Keira Constructions Pty Ltd (1994) 33 NSWLR 607.

8 I have been referred to the decision of Lindgren J in Re Double V Marketing Pty Ltd (1995) 16 ACSR 498. That case seems to be quite close to the present and I follow what his Honour says, but, with respect, I am not quite sure about whether his order 4 set out on page 500 is technically the correct one to make. I prefer to make the following orders:

1. Pursuant to s 447A of the Corporations Act in the administration of Open Telecommunications Ltd the time provided for in s 439B(2) for the holding of the adjourned meeting of creditors of Open Telecommunications Ltd held 8 August 2002 is extended to 28 October 2002.

2. The said meeting has not terminated, but is to be treated as having been adjourned to a time and place to be notified by the plaintiffs, provided that eligible creditors are given at least five clear days' notice of the adjourned meeting. Such notice may be given by notice given by posting same by pre-paid ordinary post no later than 5.55 pm on 18 October 2002.

3. Leave be reserved to any person claiming to be interested, including any creditor of Open Telecommunications Ltd, to make such application as he, she or it may be advised to vary these orders on 24 hours' notice to the plaintiffs and to the court.

4. Liberty to apply on two days' notice to a judge, preferably the Corporations List Judge.

5. There be no order as to costs.

6. The confidential affidavit to be placed in an envelope marked "not to be opened without leave of a Judge or Master".

7. Exhibits may be returned.

8. These orders may be entered forthwith.

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Last Modified: 10/09/2002