FEDERAL COURT OF AUSTRALIA

Delsana Holdings Pty Ltd, in the matter of Delsana Holdings Pty Ltd

(in liq) [2013] FCA 500

IN THE MATTER OF DELSANA HOLDINGS PTY LTD (IN LIQ) (ACN 110 252 189)

THE COURT ORDERS THAT:

1.    Pursuant to section 436B(2) of the Corporations Act 2001 (Cth) the plaintiff have leave to appoint himself as the administrator of Delsana Holdings Pty Ltd (in liquidation) (ACN 110 252 189).

2.    Pursuant to section 447A of the Corporations Act 2001 (Cth) the requirement to convene the first meeting of creditors otherwise imposed by section 436E of the Corporations Act 2001 (Cth) does not apply.

3.    The costs of the application be costs in the voluntary administration of Delsana Holdings Pty Ltd (ACN 110 252 189).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE MATTER OF DELSANA HOLDINGS PTY LTD (IN LIQ) (ACN 110 252 189)

REASONS FOR JUDGMENT

1    I made orders in this case on 23 April 2013, at which time I delivered ex tempore reasons. These are those reasons which have been edited, but not so as to alter their substance.

2    Giovanni Maurizio Carrello is the liquidator of Delsana Holdings Pty Ltd (in liquidation), and he has made an application, pursuant to s 436B of the Corporations Act 2001 (Cth) (the Act), that he be appointed as the administrator of Delsana, together with an order that the requirement to convene a meeting of creditors under s 436E of the Act be dispensed with and the costs of the application be costs in the voluntary administration of Delsana. The application was supported by two affidavits sworn by Mr Carrello on 21 March and 22 April 2013.

3    The application is made after the convening of a creditors meeting on 20 December 2012. The intent of the company going into voluntary administration, with a related deed of company arrangement, is one which has the approval of the creditors who attended that meeting. In his affidavit of 22 April 2013, Mr Carrello deposed that he has more than 20 years’ experience in corporate recoveries and insolvency matters, and based on that experience, he has proffered the opinion that it is in the best interests of the creditors of Delsana that the company be put into voluntary administration and for the proposed deed of company arrangement to be effected. This, he says, will enable creditors to be paid in full and enable the company to be returned to its director in a solvent state. These matters are consistent with the aims of Pt 5.3A of the Act.

4    He also opines that this course will likely take no longer to effect the deed of company arrangement than to liquidate the company. It is as convenient, in such circumstances, to avoid the repetition of work already carried out, where the applicant is an appropriate person for orders of this kind to be made. I am satisfied, on the basis of the affidavit material before me, that Mr Carrello is such a person. I am satisfied also that it is in the best interests of the creditors of Delsana for this course to be followed. It appears that the company can be salvaged, that all third party creditors can be paid in full and the company returned to Mr D’Angelo, the director of the company, in a solvent state.

5    Furthermore, this course is not only not contrary to the public interest, it is, in my view, a course which is in the public interest. No creditor of Delsana has expressed any opposition to the application and those who have taken an active part have indicated support for it. For all these reasons, I am persuaded that orders should be made as sought in the application. They are conveniently contained in a minute of proposed orders, dated 22 April 2013, and I will make orders in terms of that minute.

Associate:

Dated:    27 May 2013