FEDERAL COURT OF AUSTRALIA

Lombe, in the matter of Force Corp Pty Limited (Receivers and Managers Appointed) (Administrators Appointed) [2015] FCA 1272

THE COURT ORDERS THAT:

1.    The time for hearing of the application be abridged so that the application may be heard at any time after filing of the application.

2.    Pursuant to s 439A(6) of the Corporations Act 2001 (Cth) (the Act), the period in which the first plaintiff must convene the second meeting of creditors of each of the second to eighth plaintiffs under s 439A(5) of the Act be extended to 8 February 2016.

3.    Pursuant to s 447A(1) of the Act, the second meeting of creditors of each of the second to eighth plaintiffs required by s 439A of the Act may be held at any time during, or within five business days after the end of, the convening period, as is extended by order 2 above notwithstanding the provisions of s 439A(2) of the Act.

4.    Liberty to the plaintiffs to apply.

5.    The cost of this application be the joint and several costs and expenses of the administration of the second to eighth plaintiffs.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

1    This is an application by the administrators of Force Corp Pty Limited (Force Corp), and a number of associated companies, for an extension of time pursuant to s 439A(6) of the Corporations Act 2001 (Cth) (the Act) to extend the period within which the administrators must convene the second meeting of creditors of Force Corp and the associated companies.

2    The administrators have relied on two affidavits, being an affidavit sworn by one of the administrators, Mr David Lombe, and an affidavit affirmed by one of the receivers and managers, Mr Brett Lord, that have been appointed to Force Corp and the associated companies.

3    In short terms, the administrators advance two reasons in support of the application for an extension of time. First, receivers have been appointed to the companies and have indicated that they are proposing to endeavour to sell the companies as a going concern. That course of action offers the best opportunity to secure an outcome that is in the best interests of the creditors. Second, having regard to the fact that the receivers have been appointed and have taken control of the books and records of the companies, the administrators have been inhibited in getting access to the books and records of the companies. Therefore, their investigations into the affairs of the companies have been inhibited.

4    The relevant principles to apply in the context of an application such as this have recently been summarised by Beach J in Parbery, in the matter of NewSat Limited (Administrators Appointed) (Receivers and Managers Appointed) [2015] FCA 435 (NewSat) at [58]-[64]. I respectfully adopt his Honour’s statement of the relevant principles.

5    Having regard to the evidence and the principles as explained by Beach J in NewSat, I am persuaded that the orders sought by the administrators are appropriate. In all the circumstances, I am satisfied that it is appropriate to extend the time for the holding of the second meeting of creditors to 8 February 2016 as proposed. Whilst that is a lengthy extension, I am satisfied that such an extension is necessary to allow both the course of action proposed by the receivers and the investigations by the administrators.

6    The administrators also sought an order which had the effect of overriding s 439A(2) of the Act so as to allow the meeting to be held earlier than five days before the end of the extended convening period. The making of such an order is supported by the judgment of Lindgren J in Re Daisytek Australia Pty Ltd (admin apptd) (2003) 45 ACSR 446. The reason for making such an order is that the extension is lengthy and circumstances may arise that allow the meeting to be convened at an earlier time. I am satisfied that such an order is appropriate in the circumstances.

7    The orders of the Court will be in accordance with orders 1 to 5 of the short minutes of order.

Associate:

Dated:    19 November 2015

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