Re Windimurra Vanadium Ltd & Midwest Vanadium Pty Ltd - [2009] WASC 71

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RE WINDIMURRA VANADIUM LTD & MIDWEST VANADIUM PTY LTD; EX PARTE WEAVER [2009] WASC 71

CORAM: BEECH J

HEARD: 13 MARCH 2009

DELIVERED : 13 MARCH 2009

PUBLISHED : 24 MARCH 2009

FILE NO/S: COR 47 of 2009

MATTER :Windimurra Vanadium Ltd ACN 009 131 533 & Midwest Vanadium Pty Ltd ACN 113 874 712

EX PARTE
DARREN GORDON WEAVER As Administrator of WINDIMURRA VANADIUM LTD ACN 009 131 533 and MIDWEST VANADIUM PTY LTD ACN 113 874 712 (Receivers and Managers Appointed) (Administrators Appointed)
First-named plaintiff
ANDREW JOHN SAKER As Administrator of WINDIMURRA VANADIUM LTD ACN 009 131 533 and MIDWEST VANADIUM PTY LTD ACN 113 874 712 (Receivers and Managers Appointed) (Administrators Appointed)
Second-named plaintiff
MARTIN JONES As Administrator of WINDIMURRA VANADIUM LTD ACN 009 131 533 and MIDWEST VANADIUM PTY LTD ACN 113 874 712 (Receivers and Managers Appointed) (Administrators Appointed)
Third-named plaintiff

Catchwords:

Corporations - Administration - Meeting of creditors - Convening period - Application for extension - Turns on own facts

Legislation:

Corporations Act 2001 (WA), s 439A(6)

Result:

Application granted

Category: B

Representation:

Counsel:

First-named plaintiff       :     Mr G J Archer
Second-named plaintiff   :     Mr G J Archer
Third-named plaintiff     :     Mr G J Archer

Solicitors:

First-named plaintiff       :     Hardy Bowen
Second-named plaintiff   :     Hardy Bowen
Third-named plaintiff     :     Hardy Bowen

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

Re Chemeq Ltd; Ex parte McMaster [2007] WASC 154
Re Evans and Tate Ltd; Ex Parte Jones [2007] WASC 235; (2007) 25 ACLC 1580
Strickland and Williamson as Administrators of Port Kennedy Resorts Pty Ltd [2000] WASC 302; (2001) 19 ACLC 328

BEECH J: (These reasons are an edited version of the reasons delivered extemporaneously on 13 March 2009)

Introduction

The plaintiffs are joint and several administrators of two companies: Windimurra Vanadium Ltd and Midwest Vanadium Pty Ltd. They apply for an extension of the convening period for the second meeting of creditors of those companies from 19 March 2009 to 18 September 2009. For the reasons that follow, I am satisfied that the convening period should be extended, but not for the length of time sought by the plaintiffs.

Legal principles

The general scheme and object of pt 5.3A of the Corporations Act 2001 (Cth) may be summarised as follows.
Part 5.3A is headed 'Administration of a company's affairs with a view to executing a deed of company arrangement'. The object of pt 5.3A is said by s 435A to be to:
…provide for the business, property and affairs of an insolvent company to be administered in a way that:
(a)maximises the chances of the company, or as much as possible of its business, continuing in existence; or
(b)if it is not possible for the company or its business to continue in existence - results in a better return for the company's creditors and members than would result from an immediate winding up of the company.
Upon appointment, the administrator has control of…

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: [2009] WASC 71
Decision Date: 24 MARCH 2009 (Date of Publication; Date of judgment was 13 MARCH 2009)

CaseChat Overview and Summary

In the case of Re Windimurra Vanadium Ltd & Midwest Vanadium Pty Ltd, the issue before the court was whether an extension of the convening period for a creditors meeting should be granted. The corporations in question were Windimurra Vanadium Ltd and Midwest Vanadium Pty Ltd, and the application for the extension was made by the liquidator of Windimurra Vanadium Ltd. The nature of the dispute was centred around the procedural requirements for convening a creditors meeting, specifically the timeframe within which such a meeting must be held.

The court was required to decide whether the circumstances of this case warranted an extension of the convening period, which by statute is typically 14 days. The application for the extension was based on the argument that the liquidator needed additional time to prepare for the meeting and to ensure that all creditors were properly notified. The legal issues centred on the interpretation of the statutory provisions governing the convening period and the discretion available to the court under these provisions.

The court acknowledged that the statutory convening period is generally non-extendable but recognised that there are exceptional circumstances in which an extension may be granted. The court emphasised that each application for an extension turns on its own facts and must be assessed individually. In this case, the court considered the need for additional time to ensure that the meeting was properly convened and that all relevant parties were notified. The court found that the liquidator had demonstrated sufficient grounds to warrant the granting of an extension, and therefore, the application was successful. The court's decision was based on the specific circumstances presented and the need for fairness in the process. The final orders of the court granted the application for an extension of the convening period.

Orders

Orders of the court

Application granted

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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