Re PH (Melbourne) Pty Ltd (Administrator Appointed); Ex parte Sims

[2002] FCA 637

FEDERAL COURT OF AUSTRALIA

Re PH (Melbourne) Pty Ltd (Administrator Appointed);  Ex parte Sims
[2002] FCA 637

Corporations Act 2001 (Cth) ss 439A, 447A

RE PH (MELBOURNE) PTY LIMITED (ADMINISTRATOR APPOINTED);  EX PARTE ANTHONY MILTON SIMS
N 3018 OF 2002

GYLES J
SYDNEY
30 APRIL 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 3018 OF 2002

RE PH (MELBOURNE) PTY LIMITED (ADMINISTRATOR APPOINTED);   EX PARTE ANTHONY MILTON SIMS
JUDGE:	GYLES J
DATE OF ORDER:	30 APRIL 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The convening period for the meeting of creditors pursuant to s 439A(1) of the Corporations Act 2001 (Cth) is extended up to and including 21 May 2002.

2.        Costs of the application are costs in the administration.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 3018 OF 2002

RE PH (MELBOURNE) PTY LIMITED (ADMINISTRATOR APPOINTED);   EX PARTE ANTHONY MILTON SIMS

JUDGE:	GYLES J
DATE:	30 APRIL 2002
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter, an ex parte application is made pursuant to s 439A(6) and s 447A of the Corporations Act 2001 (Cth) (“the Act”) for the extension of the convening period for a meeting of creditors pursuant to s 439A(1) of the Act to 28 May 2002. I have considered the affidavit of Paul Alexander Russell and the documents annexed to that affidavit. I have also taken into account the matters which have been recorded in the transcript which clarify the position as to the manner of the appointment of the administrator and the awareness of this application by those involved in the appointment, namely at least some of the directors of the company and the parent company.

2. In view of that material, it seems to me, firstly, that it is not necessary that notice of this application be given to any other person and, secondly, that a case has been made for the extension. The basic problem is the difficulty that the administrators have had in locating and analysing the company documents and other material relating to its affairs. Consequently, at the moment a notice pursuant to s 439A(4) of the Act would not be accompanied by a report or a statement which would be of any real utility to creditors in making an assessment as to what should happen in relation to the company. It seems to me that there has been reasonable diligence shown in seeking to obtain the documents and other material and that further time is appropriate in order that there be a better elucidation of the company's affairs for the benefit of creditors when the meeting is convened.

3. Administration pursuant to this part of the Act is of its nature temporary and urgent and it does have a capacity to seriously interfere with the rights and interests of creditors. The time limits which are laid down by the Act should therefore be taken seriously and not extended without good cause. However, under the circumstances, it seems to me that a case is made for a period of extension equal to that provided by the statute and I propose to extend the period for twenty one days.

4. The formal orders I make are:

   (1)Pursuant to s 439A(6) of the Corporations Act 2001, I extend the convening period of the meeting of creditors pursuant to s 439A(1) of the Corporations Act 2001, up to and including 21 May 2002.

   (2)Costs of this application are costs in the administration.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:             21 May 2002

Solicitor for the Applicant:	N Reeves of Mallesons Stephen Jaques
Date of Hearing:	30 April 2002
Date of Judgment:	30 April 2002