Senatore (Administrator), in the matter of Wambuwayyn Pty Limited

Case [2023] FCA 1207

FEDERAL COURT OF AUSTRALIA

Senatore (Administrator), in the matter of Wambuwayyn Pty Limited [2023] FCA 1207

File number(s): ACD 56 of 2023
Judgment of: SHARIFF J
Date of judgment: 10 October 2023
Catchwords: CORPORATIONS – application for an extension of time to convene second meeting of creditors – ss 439A(6) and 447A(a) Corporations Act 2001 (Cth) – administrator appointed – discretion exercised to extend time to convene a second meeting of creditors
Legislation:

Corporations Act 2001 (Cth) ss 439A(2), 439A(6), 447A(1)

Insolvency Practice Rules (Corporations) 2016 (Cth) r 75- 225(1), 75-15  
Cases cited:

ABC Learning Centres Ltd, in the matter of ABC Learning Centres Ltd; application by Walker (No 5) [2008] FCA 1947

ABC Learning Centres Ltd, in the matter of ABC Learning Centres Ltd; application by Walker (No 7) [2009] FCA 454

Algeri, in the matter BHO Australia Pty Ltd (Administrator Appointed) (No 2) [2022] FCA 234

Carter, in the matter of SFM Australasia Pty Ltd (Administrators Appointed) ACN 105 317 333 (No 2) [2009] FCA 419

Deputy Commissioner of Taxation v Scottsdale Homes No 3 Pty Ltd (No 2) [2009] FCA 190

Ex parte Vouris; in the matter of Marrickville Bowling and Recreation Club Ltd (under Administration) [2008] DCA 622

Fitzgerald, in the matter of Primebroker Securities Limited (Administrator Appointed) (Receivers and Managers Appointed) [2008] FCA 1247

Hall, in the matter of Australian Capital Reserve Limited (Administrators Appointed) [2007] FCA 1328

In the matter of LED Builders Pty Ltd (Administrators Appointed); LED Builders Pty Ltd (Administrators Appointed) and Ors [2008] NSWSC 633

Lombe Re Australian Discount Retail Pty Ltd [2009] NSWSC 110

Lombe, Re Babcock & Brown Ltd (Administrators Appointed) [2009] FCA 349

Mighty River International v Hughes [2018] HCA 38; (2018) 265 CLR 480 at 511 [72]-[73] Re Riv­iera Group Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed) [2009] NSWSC 585

Re Eagle Boys Dial A Pizza Australia Pty Ltd (Administrator Appointed)

Re Octaviar Limited (Administrators Appointed) (Receivers and Managers Appointed (ACN 107 863 436) [2008] QSC 272

Silvia, in the matter of Austcorp Group Ltd (Administrators Appointed) [2009] FCA 636

Sims, in the matter of Destra Corporation Ltd [2008] FCA 2002; Fincorp Group Holdings Pty Ltd & Ors [2007] NSWSC 363

Stewart, in the matter of Kleins Franchising Pty Ltd (Administrators Appointed) (ACN 007 348 236) [2008] FCA 721

Uni-Aire Security Pty Ltd (Administrators Appointed) ACN 085 430 619, in the matter of Uni-Aire Security Pty Ltd (Administrators Appointed) ACN 085 430 619 [2006] FCA 1423

Worrell; Re Storm Financial Ltd (Receivers and Managers Appointed) [2009] FCA 70
Division: General Division
Registry: Australian Capital Territory
National Practice Area: Commercial and Corporations
Sub-area: Corporations and Corporate Insolvency
Number of paragraphs: 19
Date of hearing: 9 October 2023 
Counsel for the First Plaintiff: W.D.B Buckland
Solicitor for the First Plaintiff: McGilvray

ORDERS

ACD 56 of 2023

IN THE MATTER OF WAMBUWAYYN PTY LIMITED (ACN 613 102 113)
BETWEEN:

EZIO SENATORE IN HIS CAPACITY AS ADMINISTRATOR OF WAMBUWAYYN PTY LIMITED (ACN 613 102 113)

First Plaintiff

WAMBUWAYYN…

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AGLC
Senatore (Administrator), in the matter of Wambuwayyn Pty Limited [2023] FCA 1207
Case
[2023] FCA 1207
Decision Date

CaseChat Overview and Summary

The matter involved an application by the administrator, Senatore, for an extension of time to convene a second meeting of creditors for Wambuwayyn Pty Limited. The Federal Court was called upon to exercise its discretion under sections 439A(6) and 447A of the Corporations Act 2001 (Cth) to determine whether the extension should be granted. The legal issues before the court included whether the reasons provided by the administrator for the delay were sufficient to warrant an extension, and if the extension would not prejudice any creditors of the company.

The court examined the circumstances of the delay and found that the administrator had provided adequate reasons for the extension, including logistical challenges and the need for additional time to prepare the company's financial affairs. The court also considered that the extension would not result in any prejudice to the creditors, as they would be given sufficient notice of the meeting. The court held that the discretion to extend the time for convening the second meeting should be exercised in the administrator's favour, thereby granting the application.

Accordingly, the court made several orders. It extended the period within which the administrator must convene the second meeting of creditors, allowed the second meeting to be held within an extended timeframe, and required the administrator to notify creditors of the extension. The court also ordered that the administrator provide notice of the orders to creditors and granted liberty for interested parties to apply to discharge or vary the orders. Additionally, the court ordered the redaction of certain information from an affidavit and restricted public access to that affidavit. Finally, the court ordered that the administrator's costs of the application be costs in the administration of the company.

Orders

Orders of the court

1. Pursuant to s 439A(6) and s 447A(1) of the Corporations Act 2001 (Cth) (Act), the period within which the First Plaintiff (Administrator) must convene the second meeting of creditors of the Second Plaintiff (Company) under s 439A of the Act (second meeting) be extended to midnight on 31 January 2024.

2. Pursuant to s 447A(1) of the Act, Pt 5.3A of the Act is to operate in relation to the Company so that, notwithstanding s 439A(2) of the Act, the second meeting may be held at any time during the period up to, or within five business days after the end of, the convening period as extended in Order 1 above provided that the Administrator gives notice of the meeting in accordance with r 75- 225(1) and r 75-15 of the Insolvency Practice Rules (Corporations) 2016 (Cth) (IPR).

3. Within two business days of these Orders being made, the Administrator is to give notice of these Orders to creditors of the Company (including persons claiming to be creditors) by means of a circular:

(a) to be published on the website maintained by the Administrator in respect of the administration of the company; and

(b) to be sent by email or by post to all known creditors (including persons claiming to be creditors).

4. Liberty be granted to any person who can demonstrate sufficient interest to discharge or vary these Orders on the giving of three business days' written notice to the Plaintiffs and the Court.

5. On or by 4:00 pm on 10 October 2023, the First Plaintiff is to file an amended Affidavit of Mr Ezio Senatore affirmed on 5 October 2023, which redacts paragraphs 20 and 21 and removes Annexure ES-2.

6. There be no public access to the version of the Affidavit of Mr Ezio Senatore affirmed on 5 October 2023 which was lodged with the Court on 5 October 2023 and accepted for filing on 6 October 2023, without leave of the Court.

7. The Administrators' costs of and incidental to this application be costs in the administration of the Company.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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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