FEDERAL COURT OF AUSTRALIA

In the matter of Henry Walker Eltin Group Ltd (Administrators Appointed) [2005] FCA 316

Corporations Act 2001 (Cth) s 439A, 447A

Bernsteen Pty Ltd v Newmore Pty Ltd (1995) 13 ACLC 1608 cited

Re Daisytek Australia Pty Ltd [2003] FCA 575 cited

Re Diamond Press Australia Pty Ltd [2001] NSWSC 313 applied

IN THE MATTER OF HENRY WALKER ELTIN GROUP LTD (ADMINISTRATORS APPOINTED)

NSD 224 OF 2005

HELY J

16 FEBRUARY 2005

SYDNEY

THE COURT ORDERS THAT:

1.         Pursuant to s 439(6) of the Corporations Act 2001 (Cth), the period within which the administrators of Henry Walker Eltin Group Limited (Administrators Appointed) and of each of the 25 other companies set out in the Schedule hereto must convene meetings of creditors under s 439A of the Corporations Act 2001 (Cth) is extended up to and including 23 May2005.

2.                  Pursuant to s 447A(1) of the Corporations Act 2001 (Cth), the meetings of the creditors of Henry Walker Eltin Group Limited (Administrators Appointed) and each of the 25 other companies set out in the Schedule hereto required by s 439A of that Act may be held at any time during, or within 5 business days after the end of, the convening period, as extended by Order 1 above notwithstanding the provisions of s 439A(2) of the Corporations Act 2001 (Cth).

3.                  Liberty be granted to the plaintiffs to apply for any further extensions of the convening period referred to in Order 1 at any time prior to 23 May 2005.

4.                  The costs and expenses of this application be costs and expenses of the administration of Henry Walker Eltin Group Limited (Administrators Appointed) and the 25 other companies set out in the Schedule hereto.

5.                  Liberty to apply be granted to any person who can demonstrate sufficient interest to modify or discharge the orders on appropriate notice to the plaintiffs.

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

SCHEDULE

“HWE Group”

All in administration.

Company                                                                                                        ACN

Henry Walker Eltin Group Limited                                                                    007 710 483

Bulumba Pty Limited                                                                                         008 060 240

Capnorth Developments Pty Limited                                                                 009 640 251

Castlemaine Wastewater Treatment Pty Limited                                                081 417 030

HWE Civil Pty Limited                                                                                     106 551 302

HWE Finance Pty Limited                                                                                009 593 668

HWE Land Pty Limited                                                                                    009 614 788

HWGL Services Pty Limited                                                                             009 615 436

HWIO Pty Limited                                                                                           072 445 179

Inventive Pty Limited                                                                                        009 639 310

LSM Projects Pty Limited                                                                                106 580 134

Northaust Auto Hire Pty Limited                                                                       009 639 490

Simon Engineering (Australia) Holdings Pty Ltd         000 142 165

Simon Engineering (Australia) Pty Limited                                                         000 117 000

Bridge Autos Pty Limited                                                                                  009 625 816

Dover Investments Pty Limited                                                                          009 637 914

ACN 009 366 036 Pty Limited                                                                        009 366 036

Castleton Pty Limited                                                                                        009 210 664

Eltin International Pty Limited                                                                            009 211 456

Eltin Open Pit Operations Pty Limited                                                               008 918 278

Eltin Surface Mining Pty Limited                                                                        062 450 113

Eltin Underground Operations Pty Limited                                                         008 906 849

Henry Walker Eltin Contracting Pty Limited               009 625 138

Henry Walker Environmental Pty Limited                                                          009 627 490

Henry Walker Underground Pty Limited                                                           007 649 274

HWE Cockatoo Pty Limited                                                                             009 639 285

1                     Administrators were appointed to 26 companies which constitute the Henry Walker Eltin Group (‘HWE Group’) on 31 January 2005.  On 1 February 2005 those administrators resigned and the plaintiffs were appointed joint voluntary head administrators in their stead.  The convening period under s 439A(1) of the Corporations Act 2001 (Cth) expires on 21 February 2005.  This is an application under s 439A(6) to extend the convening period to 23 May 2005. 

2                     Meetings of creditors of the company were held on 8 February 2005 in Darwin, Perth and Sydney.  No resolutions were passed at those meetings for removal of the administrators.  The creditors present at the meetings were informed of the administrators’ intention to make this application and no opposition to that course was voiced at those meetings.  Committees of creditors were appointed to each of the companies and on 15 February 2005 Committee members were notified by a circular of the administrators’ intention to make this application. No objections to the application have been registered.

3                     The application is occasioned by the fact that the HWE Group is a very complex group of companies carrying on business both in the States and Territories of Australia as well as in a number of countries overseas.  The businesses conducted by the members of the HWE Group are extensive and multi-faceted.  The HWE Group continued to trade up until 31 January 2005.  The evidence establishes that the administrators need more time to review the viability of the various businesses within the HWE Group to determine the best method of realisation of its assets.

4                     For the reasons which are explained in more detail in the affidavit of Mr McGrath, the administrators will not be in a position to prepare an adequate administrative report prior to 21 February 2005.  I accept that the principles applicable on an application such as this are as set out in the document styled ‘Plaintiffs’ submissions’ which I have placed with the papers.

5                     Adopting the language of Barrett J in Re Diamond Press Australia Pty Ltd [2001] NSWSC 313 at [10], it seems to me that the balance to which his Honour referred should, in this case, be struck by granting the extension sought.  Superficially, the period of the extension is a long one, but in the circumstances it seems to me to be justified.  I therefore propose to make orders in accordance with pars 1, 2, 3 and 4 of the document styled ‘Order’ which I have signed and placed with the papers.  However, there are a couple of comments I wish to make in relation to those orders.  First, this application was made ex parte, as was the application made to Lindgren J in Re Daisytek Australia Pty Ltd [2003] FCA 575.  It is not unheard of for applications under the Corporations Act 2001 (Cth) to be made without joining a contradictor even though the jurisdiction being exercised is Federal jurisdiction which requires the existence of a matter which would ordinarily involve a contradictor.

6                     The second aspect of the same issue is that there are, at least in point of theory, persons whose interests could be adversely affected by the making of these orders and who might wish to challenge the making of them.  It is the existence of those people and of those interests which demonstrate that the matter is within Federal jurisdiction, even though a contradictor has not been named. It is consistent with principle that I should reserve liberty to any person who can demonstrate a sufficient interest to apply to modify or discharge these orders on appropriate notice to the plaintiffs.

7                     Finally, whilst I have reserved liberty to apply, I have done so in a perfunctory fashion and without expressing any view as to what should happen in the event that anybody should seek to take advantage of that liberty, having regard to the terms of s 439A(6) of the Corporations Act 2001 (Cth) and to the decision of Branson J in Bernsteen Pty Ltd v Newmore Pty Ltd (1995) 13 ACLC 1608. 

8                     I therefore make the following orders, with the direction that they be entered forthwith:

1.            Pursuant to s 439(6) of the Corporations Act 2001 (Cth), the period within which the administrators of Henry Walker Eltin Group Limited (Administrators Appointed) and of each of the 25 other companies set out in the Schedule hereto must convene meetings of creditors under s 439A of the Corporations Act 2001 (Cth) is extended up to and including 23 May2005.

2.            Pursuant to s 447A(1) of the Corporations Act 2001 (Cth), the meetings of the creditors of Henry Walker Eltin Group Limited (Administrators Appointed) and each of the 25 other companies set out in the Schedule hereto required by s 439A of that Act may be held at any time during, or within 5 business days after the end of, the convening period, as extended by Order 1 above notwithstanding the provisions of s 439A(2) of the Corporations Act 2001 (Cth).

3.            Liberty be granted to the plaintiffs to apply for any further extensions of the convening period referred to in Order 1 at any time prior to 23 May 2005.

4.            The costs and expenses of this application be costs and expenses of the administration of Henry Walker Eltin Group Limited (Administrators Appointed) and the 25 other companies set out in the Schedule hereto.

5.            Liberty to apply be granted to any person who can demonstrate sufficient interest to modify or discharge the orders on appropriate notice to the plaintiffs.

Associate:

Dated:              30 March 2005