Re Pindan Group Pty Ltd (Administrators Appointed) [No 2] - [2021] WASC 358

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   RE PINDAN GROUP PTY LTD (ADMINISTRATORS APPOINTED) AND ORS [No 2] [2021] WASC 358
CORAM:   STRK J
HEARD:   4 OCTOBER 2021 AND UPON THE ADDITIONAL PAPERS FILED ON 7 OCTOBER 2021
DETERMINED       :   8 OCTOBER 2021
PUBLISHED           :   22 OCTOBER 2021
FILE NO/S:   COR 102 of 2021
MATTER:   IN THE MATTER OF PINDAN GROUP PTY LTD (ADMINISTRATORS APPOINTED) AND OTHERS

EX PARTE
VINCENT ANTHONY SMITH, COLBY RHYS O'BRIEN and SAMUEL JOHN FREEMAN, as joint and several administrators of PINDAN GROUP PTY LTD (ADMINISTRATORS APPOINTED) ACN 611 922 386, PINDAN ASSET MANAGEMENT PTY LTD (ADMINISTRATORS APPOINTED) ACN 086 747 944, and PINDAN CONTRACTING PTY LTD (ADMINISTRATORS APPOINTED) ACN 120 076 360, and as joint and several liquidators of PINDAN PROJECTS WA PTY LTD (IN LIQUIDATION) ACN 611 922 475, PINDAN REALTY PTY LTD (IN LIQUIDATION) ACN 009 372 847 and MOSELLE HOLDINGS PTY LTD (IN LIQUIDATION) ACN 009 338 318
Plaintiff

Catchwords:

Corporations law - Application for directions pursuant to s 90-15 of the Insolvency Practice Schedule (Corporations) that the plaintiffs as administrators and liquidators would be justified and acting reasonably in entering into and implementing updated transaction documents - Application for variation of orders as to the plaintiffs' liabilities as administrators under the updated transaction documents pursuant to s 447A(1) of the Corporations Act 2001 (Cth) - Application for approval for the plaintiffs as liquidators to enter into the updated transaction documents pursuant to s 477(2B) of the Corporations Act 2001 (Cth)

Legislation:

Corporations Act 2001 (Cth), s 435A, s 443(D), s 447A(1), s 477(2B), and Sch 2 (Insolvency Practice Schedule (Corporations)) s 90-15
Rules of the Supreme Court 1971 (WA), O 4A r 1

Result:

Applications granted

Category: B

Representation:

Counsel:

Plaintiff

A J Papamatheos and L Pham

Solicitors:

Plaintiff

Squire Patton Boggs

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

Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth (2019) 268 CLR 524
Ex parte Frigger [2020] WASC 365
Kelly, Re Halifax Investment Services Pty Ltd (in liq) (No 8) [2020] FCA 533; 144 ACSR 292
Krejci (liquidator), in the matter of Community Work Pty Ltd (in liq) [2018] FCA 425
Krejci, in the matter of Union Standard International Group Pty Ltd (Admins Apptd) (No 2) [2020] FCA 1111
Moondancer Holdings Pty Ltd v Navarac Pty Ltd [2011] WASC 250
Nipps (Admin) v Remagen Lend ADA Pty Ltd, Adaman Resources Pty Ltd (Admin Apptd) (No 4) [2021] FCA 644
Re Ansett Australia Ltd (No 3) (2002) 115 FCR 409
Re AWA Limited (admin apptd)) (recs and mgrs apptd) [2014] NSWSC 249
Re Broens Pty Limited (in liq) [2018] NSWSC 1747
Re GGA Lifestyle Pty Ltd (Administrators Appointed); Ex Parte Woodhouse [2019] WASC 167
Re Nexus Energy Ltd [2014] NSWSC 1041
Re Pindan Group Pty Ltd (Administrators Appointed) and Ors [2021] WASC 347
Re RCR Tomlinson Ltd (Admins Apptd) [2018] NSWSC 1859
Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4
Walley, in the matter of Poles…

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: [2021] WASC 358
Decision Date: 22 OCTOBER 2021

CaseChat Overview and Summary

The case before the court involved the Pindan Group Pty Ltd, where the plaintiffs, who were administrators and liquidators, sought directions, variations of orders, and approval to enter into updated transaction documents. The plaintiffs argued that they would be justified and acting reasonably in implementing these documents, and they sought the court's approval for their actions as liquidators. The court was asked to consider whether the proposed actions were in the best interests of the creditors and whether the plaintiffs had acted reasonably and with due care. The legal issues revolved around whether the plaintiffs were justified in their proposed actions under the relevant sections of the Corporations Act 2001 (Cth) and whether their proposed actions were in the best interests of the creditors.

The court carefully examined the evidence presented by the plaintiffs and considered the implications of the proposed actions. It was noted that the plaintiffs had acted in good faith and had considered the interests of the creditors in their decision-making process. The court found that the plaintiffs had taken all reasonable steps to ensure that the proposed actions were in the best interests of the creditors and that they had acted with due care and diligence. The court concluded that the plaintiffs were justified in their proposed actions and that they had acted reasonably and in accordance with the law. The court also found that the proposed actions were in the best interests of the creditors and that the plaintiffs had acted in accordance with their duties under the Corporations Act 2001 (Cth).

As a result of the court's decision, the plaintiffs were granted the directions, variations of orders, and approval they had sought. The court found that the plaintiffs had acted reasonably and in accordance with the law and that their proposed actions were in the best interests of the creditors. The court's decision provided clarity and guidance to the plaintiffs in their role as administrators and liquidators and ensured that the creditors' interests were protected. The final orders of the court provided the plaintiffs with the necessary approvals to enter into the updated transaction documents and to implement their proposed actions.

Orders