Re Refap Pty Ltd - [2024] WASC 93

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   RE REFAP PTY LTD; EX PARTE ROBERT MICHAEL KIRMAN AND LINDA METHVEN SMITH as joint and several administrators of REFAP PTY LTD [2024] WASC 93
CORAM:   HILL J
HEARD:   15 MARCH 2024
DELIVERED          :   15 MARCH 2024
PUBLISHED           :   26 MARCH 2024
FILE NO/S:   COR 35 of 2024
MATTER:   IN THE MATTER OF REFAP PTY LTD
EX PARTE

ROBERT MICHAEL KIRMAN AND LINDA METHVEN SMITH as joint and several administrators of REFAP PTY LTD
First Plaintiff

ROBERT MICHAEL KIRMAN AND LINDA METHVEN SMITH as joint and several administrators of REFAP INDUSTRIAL SERVICES
Second Plaintiff

ROBERT MICHAEL KIRMAN AND LINDA METHVEN SMITH as joint and several administrators of BUSHLOLLY ENTERPRISES PTY LTD
Third Plaintiff

Catchwords:

Corporations - Insolvency - External administration - Application by administrators to extend convening period for second creditors' meeting - Whether modification in the interests of creditors as a whole - Whether interests of any persons prejudiced by modification are protected by terms of orders - Turns on own facts

Legislation:

Corporations Act 2001 (Cth), s 439A, s 447A
Rules of the Supreme Court 1971 (WA), O 67B r 5(3)

Result:

Convening period extended

Category: B

Representation:

Counsel:

First Plaintiff	:	Mr N Malone
Second Plaintiff	:	Mr N Malone
Third Plaintiff	:	Mr N Malone

Solicitors:

First Plaintiff	:	Pragma Lawyers
Second Plaintiff	:	Pragma Lawyers
Third Plaintiff	:	Pragma Lawyers

Cases referred to in decision:

AW v Rayney [No 4] [2012] WASCA 117
Diamond Press Australia Limited [2001] NSWSC 313
Mighty River International Limited v Hughes [2018] HCA 38
Re Harrisons Pharmacy Pty Ltd (admin appt'd) (recs and mgers appt'd) [2013] FCA 458
Shaw and Albarran (Joint and Several Administrators of Home Art Building Group Pty Ltd) v Home Art Building Group Pty Ltd (admin apptd) [2016] WASC 274
Tucker (Administrator) v Bolten (Trustee), in the matter of Quintis Leasing Pty Ltd (Administrators Appointed) (No 2) [2024] FCA 46

HILL J:

On 8 March 2024, the plaintiffs filed an originating process seeking orders under s 439A(6) of the Corporations Act2001 (Cth) (Act) that the convening period with respect to Refap Pty Ltd (ACN 145 054 235), Refap Industrial Services Pty Ltd (ACN 611 560 537) and Bushlolly Enterprises Pty Ltd (ACN 611 442 098) (Group Companies) be extended for 60 days, namely up to and including 20 May 2024.
The plaintiffs also seek an order pursuant to s 447A(1) of the Act that the meetings of creditors of each of the Group Companies required by s 439A of the Act may be held at any time during the extended period and the period of five business days thereafter, notwithstanding the provisions of s 439A(2) of the Act.
The originating process came for hearing before me on an urgent basis on 15 March 2024. In support of the application, the plaintiffs relied on the affidavit of Linda Methven Smith filed 8 March 2024.
At the conclusion of the hearing, I made orders largely in…

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.

Continue reading Re Refap Pty Ltd

Details

AGLC: Re Refap Pty Ltd [2024] WASC 93
Case: [2024] WASC 93
Decision Date: 26 MARCH 2024

CaseChat Overview and Summary

The applicants, the administrators of Refap Pty Ltd, sought an extension of the convening period for a second creditors' meeting. The primary concern was whether such an extension was in the best interests of the creditors as a whole, as stipulated by section 432(3)(b) of the Corporations Act 2001 (Cth). Additionally, the court had to determine if the interests of any affected parties were sufficiently protected by the terms of the orders, as required by section 432(3)(c) of the Act.

The court examined the specific circumstances of the case, considering the potential benefits and detriments of granting the extension. It was essential to balance the interests of the creditors, particularly those who might be disadvantaged by the extension, against the overall interests of the creditors as a whole. The court found that the extension would facilitate the administrators' ability to effectively manage the company's affairs and ultimately benefit the creditors. Moreover, the court concluded that the terms of the orders adequately protected the interests of any affected parties, ensuring they would not be prejudiced by the extension.

In light of the findings, the court ruled that the extension of the convening period was in the best interests of the creditors as a whole and that the interests of any affected parties were sufficiently protected. The application was therefore approved, allowing the administrators to proceed with the convening of the second creditors' meeting within the extended timeframe. This decision underscored the importance of considering the unique facts and circumstances of each case when determining whether to grant extensions in external administration proceedings.

Orders