St George Bank Ltd v The Australian Private Capital Group Ltd
[2001] NSWSC 762
•21 August 2001
CITATION: St George Bank Ltd v The Australian Private Capital Group Ltd [2001] NSWSC 762 CURRENT JURISDICTION: Equity FILE NUMBER(S): SC 3644/01 HEARING DATE(S): 21 August 2001 JUDGMENT DATE:
21 August 2001PARTIES :
St George Bank Limited (P)
The Australian Private Capital Group Limited (D)JUDGMENT OF: Hamilton J
COUNSEL : A H Roth, Solicitor (P)
J A Rossello, Solicitor (D)SOLICITORS: Le Compte Davey (P)
Clinch Neville Long (D)CATCHWORDS: CORPORATIONS [182] - Voluntary administration - Protection of company property during administration - Winding up company - Power of Court to adjourn hearing of winding up application - Relevant considerations. LEGISLATION CITED: Corporations Act 2001 (Cth) s 440A(2) CASES CITED: TCS Management Pty Ltd v CTTI Solutions Pty Ltd [2001] NSWSC 830
Unifor Office Aust Pty Ltd v Brewer Partnership Pty Ltd (1999) 17 ACLC 642DECISION: Adjournment granted.
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
HAMILTON J
TUESDAY, 21 AUGUST 2001
3644/01 ST GEORGE BANK LTD v THE AUSTRALIAN PRIVATE CAPITAL GROUP LIMITED
JUDGMENT
1 HIS HONOUR: This is an application under s 440A(2) of the Corporations Act 2001 (Cth) (“the CA”) for the adjournment for 28 days of winding up proceedings. The first meeting of creditors has been held today and there has been no resolution to end the administration or remove the administrator. In the background there is a proposal by a secured creditor related to the company to provide funds under a deed of company arrangement ("DCA") that would return a dividend of about 10 per cent to third party creditors. The administrator has not been able to proceed very far with estimating the company's assets or assessing whether there may be any claims by the company against directors or other people. However, the present situation is that the company appears to have no realistically recoverable assets and debts of some $1,200,000. It, therefore, seems to me that it may be in the interests of the creditors for the administration to proceed, in the sense that the administration may produce for some creditors a small dividend in place of nothing at all.
2 The manner in which it should be judged, whether or not adjournments under this subsection are in the interests of creditors, was discussed by me and the authorities collected in my recent decision in TCS Management Pty Ltd v CTTI Solutions Pty Ltd [2001] NSWSC 830. Mr Roth, solicitor for the plaintiff, an independent creditor to the tune of about $60,000, has reminded me of what was said by Hodgson CJ in Eq (as his Honour then was) in Unifor Office Aust Pty Ltd v Brewer Partnership Pty Ltd (1999) 17 ACLC 642. He has urged on me that even at this early stage the appropriate thing would be for a liquidator to be appointed; so that even the preliminary investigations will be carried out by a totally independent person. He has reminded me that that course would not preclude the company passing back into administration in due course, if that were thought appropriate.
3 However, there is no certainty if the offer is aborted at this stage that it will be repeated or replaced. I have come to the conclusion that the appropriate course is for the company to remain in administration for the comparatively short period of the adjournment which has been asked for and I propose to grant an adjournment under s 440A(2) to 18 September 2001 so that the appropriate course may be considered in the light of further investigations by the administrator in that time. The matter will be stood over to that day at 9.30am before the Registrar.
0
2
1