Re Supersett Constructions Pty Ltd (Administrators Appointed)
[2025] WASC 278
•10 JULY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: RE SUPERSETT CONSTRUCTIONS PTY LTD (ADMINISTRATORS APPOINTED); EX PARTE JEROME HALL MOHEN AND GREGORY BRUCE DUDLEY as joint and several liquidators of SUPERSETT CONSTRUCTIONS PTY LTD (ADMINISTRATORS APPOINTED) [2025] WASC 278
CORAM: HILL J
HEARD: 24 JUNE 2025
DELIVERED : 24 JUNE 2025
PUBLISHED : 10 JULY 2025
FILE NO/S: COR 94 of 2025
MATTER: IN THE MATTER OF RE SUPERSETT CONSTRUCTIONS PTY LTD (ADMINISTRATORS APPOINTED)
EX PARTE
JEROME HALL MOHEN as joint and several administrator of SUPERSETT CONSTRUCTIONS PTY LTD (ADMINISTRATORS APPOINTED) ACN 144 807 714
First Plaintiff
GREGORY BRUCE DUDLEY as joint and several administrator of SUPERSETT CONSTRUCTIONS PTY LTD (ADMINISTRATORS APPOINTED) ACN 144 807 714
Second Plaintiff
SUPERSETT CONSTRUCTIONS PTY LTD (ADMINISTRATORS APPOINTED) ACN 144 807 714
Third Plaintiff
Catchwords:
Corporations - External administration - Application for extension of convening period for second creditors' meeting - Whether extension is in the interests of creditors as a whole - Whether interests of any persons prejudiced by extension are protected by terms of orders - Turns on own facts
Legislation:
Corporations Act 2001 (Cth) s 439A(6), s 447A(1)
Rules of the Supreme Court 1971 (WA), O 67B r 5(3)
Result:
Application granted
Category: B
Representation:
Counsel:
| First Plaintiff | : | Mr S Majteles |
| Second Plaintiff | : | Mr S Majteles |
| Third Plaintiff | : | Mr S Majteles |
Solicitors:
| First Plaintiff | : | K&L Gates |
| Second Plaintiff | : | K&L Gates |
| Third Plaintiff | : | K&L Gates |
Case(s) referred to in decision(s):
Diamond Press Australia Limited [2001] NSWSC 313
Mighty River International Limited v Hughes [2018] HCA 38
Re Daisytek Australia Pty Ltd (Administrators Appointed) [2003] FCA 768
Shaw and Albarran (Joint and Several Administrators of Home Art Building Group Pty Ltd) v Home Art Building Group Pty Ltd (Administrators Appointed) [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:
(This judgment was delivered extemporaneously and has been edited from the transcript to include references, headings and to correct matters of grammar and expression.)
By originating process filed on 23 June 2025, the plaintiffs seek orders pursuant to s 439A(6) of the Corporations Act 2001 (Cth) (Act) to extend the convening period of the second creditors' meeting of Supersett Constructions Pty Ltd (Company). The extension is sought for a period of two months until 24 August 2025. Unless an extension is granted by the court, the meeting is required to be convened by 24 June 2025, with the meeting to be held by 1 July 2025.
The plaintiffs also seek an order pursuant to s 447A(1) of the Act that the second creditors' meeting 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 was listed before me this morning on an urgent basis. In support of the application, the plaintiffs relied on two affidavits (one confidential and one open) of Jerome Hall Mohen, the first plaintiff and one of the administrators of the Company, both filed 23 June 2025, and an affidavit of Nicholas Harry Paidoussis, filed today, confirming service of the originating process and affidavits on the Australian Securities and Investments Commission.
I have also had the benefit of an outline of submissions filed by the plaintiffs, as well as short oral submissions from counsel for the plaintiffs this morning.
Factual background
The factual background to the application is set out in the affidavit of Mr Mohen and can be briefly summarised as follows.
The Company's primary business involves providing concreting services to projects in Western Australia.[1]
[1] Open affidavit of Jerome Hall Mohen filed 23 June 2025 [13].
On 26 May 2025, Mr Mohen and the second plaintiff were appointed as joint and several administrators of the Company (Administrators), pursuant to a resolution of the Company's sole director, Aaron May, under s 436A of the Act.[2]
[2] Open affidavit of Jerome Hall Mohen filed 23 June 2025 [11], 'JHM-2'.
Based on the investigations of the Administrators to date, their preliminary understanding is that the Company's outstanding debts total more than $5.2 million, comprising:[3]
(a)secured creditors, who are owed more than $2 million;
(b)employee claims, who are owed more than $700,000; and
(c)unsecured creditors, who are owed more $2.5 million.
[3] Open affidavit of Jerome Hall Mohen filed 23 June 2025 [30].
At the time of their appointment, the Company was engaged on 10 separate projects. Based on their review of the Company's books and records, and discussions with the director and certain clients, the Administrators decided that the Company should proceed with three of these projects. Subject to the court granting an extension of the convening period, the Company will have completed the requirements of these projects by 30 June 2025 and be entitled to payments on 31 July 2025.[4]
[4] Open affidavit of Jerome Hall Mohen filed 23 June 2025 [26] - [27].
Mr Mohen's evidence is that there is some uncertainty as to what the final claims of the Company's creditors will be,[5] as well as uncertainty as to the prospects of recovery of the Company's assets. At this stage, the Administrators believe the Company's assets include approximately $180,000 in cash, $680,000 of pre‑appointment debtors, $594,000 in pre‑appointment retentions and cash backed guarantees, $277,000 of unbilled work in progress, as well as a significant loan to Mr May's family trust.[6]
[5] Open affidavit of Jerome Hall Mohen filed 23 June 2025 [36].
[6] Open affidavit of Jerome Hall Mohen filed 23 June 2025 [37].
The Administrators have been in discussions with Mr May regarding a potential deed of company arrangement (DOCA). They have been informed by Mr May that he will not contemplate proposing a DOCA until there is greater clarity on the Company's creditor and net asset position. In his view, this requires three things:[7]
(a)the completion of three projects;
(b)receipts from outstanding debtors; and
(c)further clarity on potential unclaimed offsetting or defects liability claims.
[7] Open affidavit of Jerome Hall Mohen filed 23 June 2025 [50] - [51].
Should an extension of time to convene the second creditors' meeting be granted?
The plaintiffs' application for an extension is brought pursuant to s 439A(6) of the Act. The legal principles governing s 439A(6) applications are well‑known and not in dispute.
In considering whether or not to grant an extension to the convening period of the second creditors' meeting, the court is required to consider and take into account the objects and scheme of pt 5.3A of the Act, as set out in s 435A.
In reaching its decision, the court is required to maintain the appropriate balance between an expectation that an external administration will be undertaken in a relatively speedy and summary manner with a need to ensure that an administration is not concluded without consideration of sensible and constructive options that are directed towards maximising returns for creditors and any possible return for shareholders.[8] In reaching its decision, the court is also required to take into account any possible detriment to third parties, including the suspension of rights and remedies of secured creditors, lessors, and others.[9]
[8] Tucker (Administrator) v Bolten (Trustee), in the matter of Quintis Leasing Pty Ltd (Administrators Appointed) (No 2) [2024] FCA 46 [54], citing Barrett J in Diamond Press Australia Limited [2001] NSWSC 313 [10].
[9] Shaw and Albarran (Joint and Several Administrators of Home Art Building Group Pty Ltd) v Home Art Building Group Pty Ltd (Administrators Appointed) [2016] WASC 274 [18].
The court will generally exercise its discretion to extend the convening period where one or more of the established categories are satisfied, where there is no evidence of material prejudice to those affected by the extension, and the court is satisfied that the estimate of time required has a reasonable basis.[10]
[10] Mighty River International Limited v Hughes [2018] HCA 38 [73].
For the following reasons, I am satisfied that it is appropriate to grant the application for an extension of the convening period, and that the proposed Daisytek order should be made.[11]
[11] Re Daisytek Australia Pty Ltd (Administrators Appointed) [2003] FCA 768.
First, Mr Mohen's evidence, which I accept, is that further time is required to enable the Administrators to resolve the uncertainties relating to the Company's debts and assets.
Second, I accept that the convening period is required to be extended to enable a DOCA to be proposed and negotiated. This is consistent with the purposes and objects of pt 5.3A of the Act.
Third, the Administrators' opinion is that an extension of time is required for a period of approximately two months. On the basis of the evidence before me, I am satisfied there is a reasonable basis for this time period.
Fourth, the orders sought require the Administrators to give notice of the orders made to all creditors, with leave for parties with sufficient interest to apply to vary the orders. In my view, this is the appropriate order.
Finally, no creditor or any other relevant party has raised any opposition to the proposed extension or appeared this morning to oppose the application. I am satisfied on all of the evidence before me that the return to creditors is likely to be significantly enhanced through the granting of the extension and enabling the Administrators to undertake the work they have deposed to. In my view, the potential benefit of the extension outweighs any prejudice to creditors and is in the best interests of creditors of the Company as a whole.
Should confidentiality orders be made over Mr Mohen's affidavit?
The plaintiffs also seek confidentiality orders to be made over the confidential affidavit of Mr Mohen, pursuant to O 67B r 5(3) of the Rules of the Supreme Court 1971 (WA).
The plaintiffs submit that the contents of this affidavit are commercially sensitive. It includes preliminary assessments of the high and low value of assets of the Company and the approach being taken by the Administrators.
I am satisfied, in the circumstances of this case, that the information contained in the affidavit is confidential, and that it is appropriate to make the confidentiality orders sought.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KC
Associate to the Honourable Justice Hill
10 JULY 2025
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