Smith, Michael John Morris In the matter of Brian Rochford Ltd (administrator appointed)

[1998] FCA 1713

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG  3169  of  1998

MICHAEL JOHN MORRIS SMITH
Applicant

IN THE MATTER OF BRIAN ROCHFORD LMITED (ADMINISTRATOR APPOINTED) (ACN 003 219 010)

JUDGE:	EMMETT J
DATE OF ORDER:	22 SEPTEMBER 1998
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. Pursuant to section 447A of the Corporations Law that section 439B(2) of the Corporations Law is to operate in relation to Brian Rochford Limited in respect of the meeting convened on 27 July 1998 as if the period of 150 days is substituted for the period of 60 days.

1. Leave be reserved to any person claiming to be interested and to Australian Securities and Investments Commission to make application to vary order 1 upon 24 hours notice in writing to the Applicant.

1. The Applicant to inform the Australian Securities Investments Commission in writing forthwith of the terms of these orders.

THE COURT GRANTS:

1. Leave to the Applicant to file an application in the form of the application which I have initialled and dated with today's date. 

THE COURT DIRECTS THAT:

1. The application may be made returnable before me instanter.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG  3169  of  1998

MICHAEL JOHN MORRIS SMITH
Applicant

IN THE MATTER OF BRIAN ROCHFORD LMITED (ADMINISTRATOR APPOINTED) (ACN 003 219 010)

JUDGE:	EMMETT J
DATE:	22 SEPTEMBER 1998
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

HIS HONOUR: I have before me an application pursuant to section 447A of the Corporations Law for what is, in effect, an extension of the time within which the second meeting of Brian Rochford Limited (“the Company”) may be completed pursuant to section 439A of the Corporations Law. Michael John Morris Smith (“the Applicant”) was appointed administrator of the Company on 30 June 1998 pursuant to section 436A of the Corporations Law.  The first meeting of creditors of the Company was held on 7 July 1998.  The second meeting of creditors was held on 27 July 1998 and was adjourned to 24 September 1998. 

The application before me is for approval for that meeting to be adjourned further for up to 90 days.  The reason advanced for the application is that the business of the Company is a complex one and that there are reasonable prospects for an arrangement to be entered into which would avoid the winding up of the Company.  The Company carries on the business of retail sale of swimwear and the like at in excess of 40 retail locations.  The necessity of making arrangements in relation to all of those businesses has made it impractical for a concluded arrangement to be proposed for the meeting which is due to resume on 24 September 1998.

The report as to affairs indicates that the Company's stock is substantial, being shown at a value in excess of $2.5 million.  The evidence before me indicates that it would be essential for the benefit of creditors that the coming summer season be utilised in order to realise the stock on hand and in order to maintain the business of the Company as a going concern.  In the circumstances, it seems to me that it would be appropriate that the administrator be given the opportunity of completing the negotiations which are in hand with a view to the sale of the Company's business as a going concern and at least to ensure that the Company is able to take advantage of the coming season.

Section 447A of the Corporations Law provides that the court may make such order as it thinks appropriate about how Part 5.3A is to operate in relation to a particular company. I have been referred to several decisions in which judges both of this Court and the Supreme Courts have held that section 447A would extend to the making of an order which would, in effect, permit a meeting to be adjourned beyond the period specified in section 439B(2).

Section 439A imposes an obligation on the administrator to convene a second meeting of the company's creditors. Under section 439B(2), a meeting convened pursuant to that section may be adjourned from time to time but cannot be adjourned to a day that is more than 60 days after the first day on which the meeting was held. Accordingly, it would not be possible to adjourn the meeting which was adjourned from 27 July to 24 September any further. I am satisfied, however, that I have power under section 447A to make an order of the nature sought.

I certify that this and the preceding one (1) page are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett

Associate:

Dated:           22 September 1998

Counsel for the Applicant:	B.A. Coles QC
Solicitor for the Applicant:	Kemp Strang
Date of Hearing:	22 September 1998
Date of Judgment:	22 September 1998