FEDERAL COURT OF AUSTRALIA

AMP Henderson Global Investors Ltd [2003] FCA 1631

CORPORATIONS – circumstances under which applications should be made ex parte

Corporations Act 2001 (Cth) s 266(4)

Re Ace Funding Limited (2003) 44 ACSR 363 cited

Re Investa Properties Limited and Anor (2001) 187 ALR 462 cited

Re National Roads and Motorists’ Association Ltd [2003] FCAFC 206 cited

IN THE MATTER OF AMP HENDERSON GLOBAL INVESTORS LIMITED ABN 59 001 777 591 (AS TRUSTEE FOR THE AUSTRALIAN EQUITY MARKET NEUTRAL FUND); GOLDMAN SACHS INTERNATIONAL (A COMPANY INCORPORATED IN THE UNITED KINGDOM)

N3058 OF 2003

GYLES J

31 OCTOBER 2003

SYDNEY

THE COURT ORDERS THAT:

The time within which AMP Global Investors Limited must lodge a notice pursuant to section 263(1) of the Corporations Act 2001 (Cth) in respect of the charge granted by AMP Global Investors Limited to Goldman Sachs International dated 12 June 2003, being tab 2 to the exhibit marked ‘NP1’ to the affidavit of Nish Patel dated 23 October 2003 and filed in these proceedings, be extended to 5.00 pm on 1 August 2003.

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

REASONS FOR JUDGMENT

1                     This is an application pursuant to s 266(4) of the Corporations Act 2001 (Cth) to extend the period for lodgement of a notice in respect of a charge.  I am satisfied that the failure to lodge the notice was accidental or due to inadvertence, or both, and I need not set out the evidence which explains in some detail how it came about that the notice was given four days late.  The threshold having thus been satisfied, it becomes a question of discretion as to whether the order should be made.

2                     I have had regard to the evidence led from the Chief Financial Officer of AMP Henderson Global Investors Limited, the chargor, as to the position of both the Australian Equity Market Mutual Fund and AMP Henderson in its capacity as trustee of that fund, and I am satisfied that there is no good reason why the order should not be made.  The financial position appears to establish that there is not a credible risk that there is any insolvency or that there will be in the foreseeable future.  Indeed, there appears to be a very comfortable margin of solvency.  Furthermore, I take account of the fact that the evidence is that the present applicant chargee is the predominant creditor.  Furthermore, I take into account the fact that the charge was notified and has been publicly known about for some time.

3                     The matter which has caused me concern is whether or not it is appropriate to make these orders ex parte.  Finkelstein J recently noted in Re National Roads and Motorists’ Association Ltd [2003] FCAFC 206at [28] a tendency to bring proceedings in the corporations list ex parte in situations where that may not be appropriate.  I note that in the cases of Re Investa Properties Limited and Anor (2001) 187 ALR 462 and Re Ace Funding Limited (2003) 44 ACSR 363 applications of a similar nature were made ex parte. 

4                     I would not wish it thought that it is a formality that these matters should be dealt with ex parte.  The purpose of notifying persons who may be affected is because of the possibility that they may bring forward matters which may not appear obvious to the Court or indeed to those appearing for the applicant in cases such as the present.  However, the analysis of the evidence which counsel has made in his written and oral submissions satisfy me that in the present case it is not inappropriate that the application be made ex parte, although, as I have said, I would not wish to add credence to the notion that as a matter of course matters such as this can be brought up without interested parties being notified.

5                     I therefore make orders in accordance with the short minutes of order which I have initialled and dated and placed with the papers.

Associate:

Dated:              22 March 2004