FEDERAL COURT OF AUSTRALIA
White, in the matter of Mossgreen Pty Ltd (Administrators Appointed) [2018] FCA 21
File number: NSD 59 of 2018 Judge: RANGIAH J Date of judgment: 25 January 2018 Catchwords: CORPORATIONS – application by administrators for extension of time to convene creditors’ meeting – balance of considerations – application granted Legislation: Corporations Act 2001 (Cth) ss 439A, 447A, Pt 5.3A Cases cited: Carter, in the matter of AMT Group Pty Ltd (Administrators Appointed) [2017] FCA 303
Diamond Press Australia Pty Limited [2001] NSWSC 313
In the matter of BCD Resources NL (receivers and managers appointed) (administrators appointed) [2015] NSWSC 777
In the matter of Creative Memories Australia Pty Limited (administrators appointed) [2013] NSWSC 732
In the matter of Henry Walker Eltin Group Ltd (Administrators Appointed) [2005] FCA 316
Mentha, in the matter of The Griffin Coal Mining Company Pty Ltd (administrators appointed) (ACN 008 667 285) [2010] FCA 30
Park (Administrator), in the matter of Surfstitch Group Limited [2017] FCA 1221
Re Daisytek Australia Pty Ltd (admin apptd) (2003) 45 ACSR 446; [2003] FCA 575
Re Riviera Group Proprietary Limited Pty Ltd (Administrators Appointed)(admins apptd) (recs and mgrs apptd) (ACN 102 298 279) (2009) 72 ACSR 353352; [2009] NSWSC 585
Silvia, in the matter of Austcorp Group Limited (Administrators Appointed) [2009] FCA 636
Strawbridge, in the matter of Custom Coaches (Sales) Pty Ltd (Administrators Appointed) [2014] FCA 683
Date of hearing: 25 January 2018 Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: Catchwords Number of paragraphs: 17 Counsel for the Plaintiff: Mr R Foreman Solicitor for the Plaintiff: King & Wood Mallesons ORDERS
NSD 59 of 2018 IN THE MATTER OF MOSSGREEN PTY LTD (ADMINISTRATORS APPOINTED) ACN 163 353 053
JAMES MICHAEL WHITE, ANDREW THOMAS SALLWAY AND NICHOLAS JOHN MARTIN IN THEIR CAPACITY AS VOLUNTARY ADMINISTRATORS OF MOSSGREEN PTY LTD (ADMINISTRATORS APPOINTED) ACN 163 353 053
Plaintiff
JUDGE:
RANGIAH J
DATE OF ORDER:
25 JANUARY 2018
THE COURT ORDERS THAT:
1.Pursuant to s 439A(6) of the Corporations Act 2001 (Cth) (the Act), the convening period as defined by s 439A(5) of the Act for a meeting of creditors of Mossgreen Proprietary Limited (Administrators Appointed) be extended up to and including Monday, 30 April 2018.
2.Pursuant to s 447A of the Act, Pt 5.3A is to operate in relation to the company as if the meeting of creditors of the company required by s 439A of the Act may be convened and held at any time during the period as extended as under Order 1 and the period of five business days thereafter, notwithstanding the provisions of s 439A(2) of the Act.
3.Any person who can demonstrate a sufficient interest, including any creditor of the company or the Australian Securities and Investments Commission, may apply to vary these orders on the giving of reasonable notice to the plaintiffs.
4.The plaintiffs have leave to apply for any further extension of the convening period.
5.Pursuant…
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- AGLC
- White, in the matter of Mossgreen Pty Ltd (Administrators Appointed) [2018] FCA 21
- Case
- [2018] FCA 21
- Decision Date
CaseChat Overview and Summary
The court considered the balance of considerations, including the need for a fair and efficient administration of the company's insolvency, the necessity of the extension, and the potential impact on creditors. The administrators argued that an extension was necessary to ensure proper notification and participation of creditors, while opponents raised concerns about the potential delay and its implications. The court found that granting the extension would facilitate a fair and efficient administration, and that the balance of considerations favoured the application. Therefore, the court granted the application, extending the convening period up to and including 30 April 2018 and allowing for the operation of Part 5.3A during this period.
The court's orders included extending the convening period for the creditors' meeting, modifying the notice requirements for creditors, and allowing for the publication of notice on the Insolvency Notices website. The orders also provided for the publication of these orders to the creditors and set out the costs and expenses of the proceedings. This decision ensures that the administration of the company's insolvency proceeds in a manner that is fair and efficient, taking into account the interests of all relevant parties.
Orders
Orders of the court
1. Pursuant to s 439A(6) of the Corporations Act 2001 (Cth) (the Act), the convening period as defined by s 439A(5) of the Act for a meeting of creditors of Mossgreen Proprietary Limited (Administrators Appointed) be extended up to and including Monday, 30 April 2018.
2. Pursuant to s 447A of the Act, Pt 5.3A is to operate in relation to the company as if the meeting of creditors of the company required by s 439A of the Act may be convened and held at any time during the period as extended as under Order 1 and the period of five business days thereafter, notwithstanding the provisions of s 439A(2) of the Act.
3. Any person who can demonstrate a sufficient interest, including any creditor of the company or the Australian Securities and Investments Commission, may apply to vary these orders on the giving of reasonable notice to the plaintiffs.
4. The plaintiffs have leave to apply for any further extension of the convening period.
5. Pursuant to s 447A(1) of the Act, Part 5.3A of the Act is to operate such that the requirement on the plaintiffs to issue notices under ss 75-225(1) and 75-15 of the Insolvency Practice Rules (Corporations) 2016 (Cth) be modified such that notice of the Second Meeting will be validly given to any creditors by, not less than five business days prior to the date of the proposed meeting:
(a) giving such notice electronically by email sent to the email address of any creditor (including persons claiming to be creditors) of the Company for whom or which the plaintiffs hold an email address;
(b) sending such notice to the postal address or facsimile number, or otherwise as provided for by the Act or the Corporations Regulations 2001 (Cth), to any creditors not being a creditor referred to in sub-paragraph (a); and
(c) causing such notice to be published in The Insolvency Notices website located at: https://insolvencynotices.asic.gov.au.
6. The plaintiffs provide a copy of these orders to the creditors of the company by:
(a) email to all creditors of the company for whom the plaintiffs have a current email address; and
(b) post to all creditors of the company for whom the plaintiffs do not have a current email address.
7. The costs and expenses of and incidental to these proceedings be costs and expenses of 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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