Federal Court of Australia

Mableson (Administrator), in the matter of Bibere Australian Beverages Pty Ltd t/as Fox Creek Wines (Administrator Appointed) [2025] FCA 533

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 8.21 of the Federal Court Rules 2011 (Cth) (FCR), the capacity of the first plaintiff is amended so as to refer to his capacity as 'administrator' in place of 'joint and several administrator'.

2.    Pursuant to r 9.08 of the FCR the second plaintiff, Mr David Kidman in his capacity as former voluntary administrator of the second to fourth plaintiffs, is removed as a party to these proceedings.

3.    Pursuant to r 8.21 of the FCR, the capacity of the third to fifth plaintiffs (the Companies, who will be the second to fourth plaintiffs once paragraph 2 of these orders takes effect) is amended so as to refer to 'Administrator Appointed' in place of 'Administrators Appointed.'

4.    Pursuant to s 447A of the Corporations Act 2001 (Cth) (Corporations Act) the period within which the first plaintiff (Administrator) must convene the second meeting of creditors under s 439A of the Corporations Act (Second Meeting) of the Companies is further extended until 31 July 2025.

5.    Pursuant to s 447A(1) of the Corporations Act, Pt 5.3A of the Corporations Act is to operate in relation to the Companies such that, notwithstanding s 439A(2) of the Corporations Act, the Second Meeting may be held at any time during, or before the end of, the convening period as extended by paragraph 4 of these orders.

6.    By 4.00 pm ACST pm on 16 May 2025, the Administrator must take all reasonable steps to send a circular giving notice of these orders to the creditors (or persons who to the knowledge of the Administrator claim to be creditors) of the Companies, with such circular:

(a)    to be sent by email transmission to creditors for whom the Administrator has a current email address; or

(b)    to be sent by ordinary post to creditors for whom the Administrator has only a postal address.

7.    Pursuant to s 447A(1) of the Act and s 90-15 of the Insolvency Practice Schedule (Corporations) (being Schedule 2 of the Corporations Act), Pt 5.3A of the Corporations Act is to operate in relation to the Companies such that notice of the Second Meeting required to be given pursuant to s 436E(3) of the Act and 75-15(1) of the Insolvency Practice Rules (Corporations) 2016 (Cth) (IPR) will be validly given to creditors (or persons claiming to be creditors) of the Companies if the notice is, not less than five business days prior to the date of the proposed meeting, provided:

(a)    where the Administrator holds an email address for the creditor - by email;

(b)    otherwise - by sending the notice to the postal address or facsimile number, or otherwise as provided for by the Corporations Act or the IPR;

(c)    in any event - by causing such notice to be published in The Insolvency Notices website located at: https://insolvencynotices.asic.gov.au.

8.    The Administrator's costs of and incidental to the application are costs in the administration of the Companies and are to be paid out of the assets of the Companies.

9.    There shall be liberty to any creditor, or other person with a sufficient interest in the Companies, to apply to vary these orders on reasonable (and in any case not less than three days') notice to the Administrator.

10.    Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), the confidential affidavit of Timothy David Mableson filed on 12 May 2025 is suppressed, until after the second creditors' meeting (or any adjourned second creditors' meeting) or other order of the Court.

11.    These orders must be served on the Australian Securities and Investments Commission.

12.    Liberty to apply.

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

REASONS FOR JUDGMENT

JACKSON J:

1    Three companies associated with the Fox Creek winery in McLaren Vale have experienced financial difficulties and are in administration under Part 5.3A of the Corporations Act 2001 (Cth). They are Bibere Australian Beverages Pty Ltd (trading as Fox Creek Wines), Crescere Australian Vineyards Pty Ltd and Opportuna Investments Pty Ltd.

2    Timothy Mableson is the administrator of all three companies, which he calls collectively the Fox Creek Group. On 13 November 2024, the Court extended by six months the period for convening the second meeting of creditors in the administrations. That meant that the period was due to expire on 15 May 2025. On 14 May 2025, sitting as duty judge, I heard an application by Mr Mableson for the convening period to be extended further, to 31 July 2025. These are my reasons for having extended the period as sought, and for making ancillary orders.

Affidavits, confidentiality and suppression

3    Mr Mableson relied on two affidavits he affirmed on 13 November 2024 in support of the original application to extend the convening period, as well as two affidavits he (more recently) affirmed on 12 May 2025. On each of those occasions, Mr Mableson affirmed two affidavits because one was filed on an open basis and one was claimed to be confidential. On 13 November 2024, the Court made a suppression order in relation to the first confidential affidavit. Mr Mableson sought a similar suppression order in respect of the more recently filed one.

4    The basis on which the new suppression order was sought was that the second confidential affidavit of Mr Mableson contains commercially sensitive information which, he deposed, might affect future negotiations for the disposal of certain assets and the values for which they might be realised.

5    Given the nature of the information contained in the confidential affidavit, I could see why Mr Mableson held that concern. In very broad terms, the information was about the terms and/or status of outstanding offers that had been made, or were in the process of being finalised, in respect of certain assets, and also about interest that has been expressed in relation to other assets, as well as expected realisations in certain scenarios. I accepted that if the information were to become publicly available, that could well affect pending or upcoming negotiations, including by giving counterparties information to which they would not ordinarily be privy. That could be disadvantageous to the Companies' creditors.

6    Under s 37AF and s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth) the Court has power to make a suppression order if the order is necessary to prevent prejudice to the proper administration of justice. Commercial sensitivity can be an appropriate basis for making such an order, and the public interest in the due and beneficial administration of the estates of insolvent companies is a relevant consideration in favour of doing so: see Sanderson, in the matter of Jabaluka Pty Ltd (in liq) [2022] FCA 1012 at [6] (Cheeseman J). It must always be borne in mind, though, that 'necessary' in this context means what it says; a necessity to depart from the principles of open justice must been shown: Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 at [30]. But if such necessity is shown, it will be an error not to grant the order, as no discretionary balancing exercise is involved: Hogan at [33]; and The Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions (No 2) [2020] FCAFC 44; (2020) 275 FCR 377 at [8]-[9] (Allsop CJ, Wigney and Abraham JJ).

7    In the present case I was satisfied that if commercially sensitive matters such as those contained in Mr Mableson's confidential affidavit were to become publicly known because he made an application for the extension of the convening period, that would harm the proper administration of justice because it would discourage such applications being made. The information in the confidential affidavit was appropriately confined to that which needed to be kept confidential. The order sought was appropriately limited in scope, being confined to the contents of the second confidential affidavit, and it was also appropriately limited as to time, because it would expire after the second creditors' meeting. For those reasons the suppression order Mr Mableson sought was made.

8    In addition to those affidavits, Mr Mableson relies on an affidavit of Daniella Carling affirmed on 14 May 2025, which deposes to service of the application on the Australian Securities and Investments Commission, and an affidavit of Andrew James D'Alessandro affirmed on 14 May 2025, verifying an affidavit of Mr Mableson which was, at the time of the hearing, unsworn because Mr Mableson was in transit at the time at which it was obtained. Mr Mableson has since affirmed that affidavit on 15 May 2025.

Background, including the original extension of the convening period

9    Bibere operates the Fox Creek winery and owns two parcels of land with a total area of just under 40 ha, containing vineyards and other facilities. It sells wine which is manufactured by a third party producer using grapes harvested from the Fox Creek vineyards. It does so through a cellar door operation, an online shop, a wine club and other retail channels. It also operates a restaurant on the winery. The administrators have caused Bibere to continue to carry on business. As at November 2024, some 13 people worked for the company.

10    Crescere owns a smaller parcel of land (about 1.4 ha) which contains wine plantings but is described as a 'lifestyle property'. It appears to have no other business activities.

11    Opportuna is dormant.

12    The sole director of the Companies appointed Mr Mableson and a co-appointee, David Kidman, as administrators on 18 October 2024. Mr Kidman has since retired so Mr Mableson is now the sole administrator. Some of the orders made on 14 May 2025 regularised the proceeding as a consequence of Mr Kidman's retirement.

13    The Companies have three main secured creditors, owed a total of about $5.6 million. There are more than 200 unsecured creditors, who are owed about $4.5 million. Three major unsecured creditors are the Australian Taxation Office, Chalk Hill Viticulture and Torresan Estate. In addition, employee priority creditors are owed about $200,000. Mr Mableson's opinion is that 'the businesses' of the Fox Creek group are insolvent (that is how he puts it).

14    In November last year the administrators sought the original extension of the convening period to permit more time for the amendment and implementation of an agreement that had been made before their appointment (Pre-Appointment Agreement). The precise terms of the Pre-Appointment Agreement were the subject of the first confidential affidavit, but in broad terms it involved selling off portions of the Companies' land and retaining a smaller portion, including the cellar door operation. If it were to be implemented, a subset of the present assets would be left to the Fox Creek Group, including Crescere's 'lifestyle land' and the winery business.

15    Mr Mableson's view was that if the Pre-Appointment Agreement were to proceed, it would likely produce a better return for creditors than the sale of the assets on an 'as is, where is' basis. That was supported by valuation evidence. But he also considered that some changes to the Pre-Appointment Agreement were necessary in order to make it workable. In his first (non-confidential) affidavit he described the arrangement embodied in the Pre-Appointment Agreement as complex.

16    The administrators sought the original extension of the convening period to permit the negotiation of necessary amendments to the Pre-Appointment Agreement and to progress a sales campaign for the remaining assets which might, they foreshadowed, be embodied in a deed of company arrangement (DOCA) proposal to be put to creditors. In Mr Mableson's opinion as at November 2024, if the original extension of the convening period were not to be ordered, the Fox Creek Group would have inevitably been wound up, with a worse outcome for creditors. The relatively long original extension of six months was sought in large part because of the complexity of the Pre-Appointment Agreement.

17    Creditors had been notified by circular of the administrators' intention to file the original extension application, and none opposed it. However, as will appear below, only the three main secured creditors were notified of the further application for an extension.

18    As has been said, on 13 November 2024, the Court granted an extension of the convening period for six months, meaning that the new convening period was due to expire on 15 May 2025.

Why the further extension of the convening period was sought

19    In his second non-confidential affidavit affirmed on 12 May 2025, Mr Mableson explained that in the six month extended convening period, the administrators had worked to finalise and effectuate the Pre-Appointment Agreement. A boundary realignment of various parcels of land was a precondition to proceeding with that agreement. That required various approvals including from the local council, the City of Onkaparinga. That process took longer than had been anticipated, although it ultimately did result in the council's approval on 30 April 2025. However some of the terms of the Pre-Appointment Agreement need to be renegotiated because of changes to the proposal that were necessary to secure that approval and, it seems, the terms of the approval itself. Those changes will mean differences in the area of land that will be disposed of.

20    Also, an agreement for the sale of an area of land that will not be disposed of under the Pre-Appointment Agreement needs to be finalised; an offer is currently on the table. This area contains the cellar door and related areas and will be on a 'going concern' basis. Mr Mableson's opinion is that if that sale goes ahead, the return to creditors will be higher than it may be if the land were to be sold in the course of a liquidation.

21    There is also a contract for the sale of the 'lifestyle block' which is due to complete at the same time as completion of the (yet to be renegotiated) Pre-Appointment Agreement.

22    Mr Mableson also deposed to necessary steps to effectuate these disposals of land that are yet to be taken, including: a survey; the completion, review and approval of survey plans; and the finalisation and completion of the contracts. He estimated a total timeframe for these steps of eight weeks.

23    Mr Mableson also deposed to his intention to conduct a 'targeted sale campaign for brands and stock', where he considered that offers received to date for those assets have been unacceptable.

24    At paragraph 21, Mr Mableson said that he had considered the likely financial returns if the steps and transactions he described were taken and had 'compared them to alternative scenarios and liquidation outcomes'. His projections supported the position that if those things were to take place while the Companies were in voluntary administration, that would 'produce a materially greater return than would be the case' if he were compelled to realise assets in a liquidation scenario. The specific projections are given in his second confidential affidavit.

25    Mr Mableson's evidence was also that the DOCA proposal foreshadowed in his first affidavit had not eventuated, so that as at the time of the application for the second extension of the convening period, there was no DOCA proposal on the table.

26    It is also relevant to note that even if Mr Mableson's most optimistic projections are achieved, the asset realisations will not be sufficient to discharge the total debts of the three main secured creditors mentioned above. That is, other than priority creditors (employees), unsecured creditors are unlikely to receive a dividend, whatever the outcome.

27    In all that context, the chief reason why a further extension of the convening period was sought was that, if it were not extended, the Companies would inevitably be wound up. Mr Mableson's opinion is that if this occurs before the various disposals mentioned above are finalised, it will materially compromise those disposal processes. His non-confidential affidavit went into some detail as to why that is so, but it is not necessary to set all the detail out here. The proposition may readily be accepted, in particular in view of: the going concern nature of the sale of the winery block; arrangements surrounding the storage by Torresan of most of Bibere's wine holdings; the effect of liquidation on the brand and intellectual property and on the realisable value of wine; the effect of liquidation on an export licence the group holds; the attitude of a certain major customer; and the impediments that liquidation may cause for necessary steps such as the implementation of the various contracts, for example steps that require dealings with government bodies.

28    At paragraph 35 of his second non-confidential affidavit, Mr Mableson thus states his 'professional opinion' as being that:

35.1.    it is in the best interests of creditors of the Fox Creek Group and the companies in it that the convening period be further extended to permit the realisation process I describe above;

35.2.    the successful implementation of the sales strategy is likely to return to creditors higher value than the liquidation alternative; and

35.3.    there are good prospects of all material realisations being completed with the extended period.

29    In relation to the dormant company Opportuna, the sole reason why an extension to the convening period is sought is because holding a separate meeting of creditors before the meetings for Bibere and Crescere will increase the overall costs of the administrations.

Issues

30    Before and at the hearing of 14 May 2025 I raised two specific issues with Mr Mableson's legal practitioners. They both emerge from matters mentioned in the previous section.

31    The first issue arose because it seemed that no DOCA was going to be put to creditors, whether the convening period were to be extended or not. So although the outcome of the administrations will be a matter for the creditors, not the Court, the practical inevitability is when the second meetings are held, the Companies will go into liquidation.

32    The effect of extending the convening period will therefore be simply to postpone the inevitable windings up. Mr Mableson has provided reasons why that will be in the best interests of creditors. But it appeared to me that there was also a question as to whether it was within the power of the Court and consistent with the objectives of Part 5.3A of the Corporations Act to extend the convening period in those circumstances.

33    The second issue emerges from the likelihood that ordinary unsecured creditors will receive no return, even if the convening period is extended; the benefit will be experienced by secured and (possibly) priority creditors. As will be seen, certain statements in the authorities as to when an extension is granted are put in terms of the interests of unsecured creditors. I required counsel for Mr Mableson to address me on that point too.

34    Apart from those specific questions, there was also the general issue of whether the Court should exercise its discretion to extend the convening period, a second time, and if so for how long.

General principles

35    I gratefully adopt the following summary of principle given by Banks-Smith J in Tucker (Administrator) v Bolten (Trustee), in the matter of Quintis Leasing Pty Ltd (Administrators Appointed) (No 2) [2024] FCA 46:

[54]    When considering an application to extend the convening period, the Court must have regard to the objects of Part 5.3A set out in s 435A and reach an appropriate balance between the expectation that an administration will be undertaken in a relatively speedy and summary manner with the need to ensure that the administration is not concluded without consideration of sensible and constructive options directed towards maximising the returns for creditors and any return for shareholders: Diamond Press Australia Limited [2001] NSWSC 313 at [10] (Barrett J).

[55]    The administrator's view on such an application is significant and, particularly where the administration is complex, it should carry weight: In the matter of Renex Holdings (Dandenong) 1 Pty Ltd (administrators appointed) [2015] NSWSC 2002 at [9] (Black J).

[56]    In considering an application for an extension, the Court must take into account the detriment to third parties, including the suspension of rights and remedies of secured creditors, lessors, and others: Shaw and Albarran (Joint and Several Administrators of Home Art Building Group Pty Ltd (Administrators Appointed)) v Home Art Building Group Pty Ltd (Administrators Appointed) [2016] WASC 274 at [18] (Beech J).

[57]    The Court has recognised that interests of creditors can be prejudiced not only by delay but also by the convening of premature meetings, where the administrator has been unable to obtain adequate information for the preparation of the administrator's report in a form enabling creditors to make an informed decision: In the matter of Harrisons Pharmacy Pty Limited (Administrators Appointed) (Receivers and Managers Appointed) [2013] FCA 458 at [13] (Farrell J) and the cases there cited.

[58]    In In the matter of Riviera Group Pty Ltd (admins apptd) (recs & mgrs apptd) [2009] NSWSC 585 at [13], Austin J identified the following relevant categories of cases in which an extension had been granted:

(a)    where the extension will allow the sale of the business as a going concern;

(b)    where the size and scope of the business in administration is substantial; and

(c)    more generally, where additional time is likely to enhance the return for unsecured creditors.

[59]    In Mighty River International Limited v Hughes [2018] HCA 38; (2018) 265 CLR 480, Nettle and Gordon JJ (in dissent, but not relevantly in this respect) cited many of the authorities in the area and observed:

[73]    Generally speaking, courts have been disposed to grant substantial extensions in cases where the administration has been complicated by, for example, the size and scope of the business, substantial offshore activities, large numbers of employees with complex entitlements, complex corporate structures and intercompany loans, and complex recovery proceedings, and, more generally, where the additional time is likely to enhance the return to unsecured creditors. Provided the evidentiary case for extension has been properly prepared, there has been no evidence of material prejudice to those affected by the moratorium imposed by the administration, and the administrator's estimate of time has had a reasonable basis, the courts have tended to grant extensions for the periods sought by administrators. (footnote omitted).

36    As to the period of the extension, the Courts have on occasion granted lengthy extensions which can be measured in many months, or even in years: see the examples given in Rathner, in the matter of Citius Property Pty Ltd (Administrator Appointed) [2023] FCA 26 at [38] (O'Bryan J).

Second and subsequent extensions

37    Quintis concerned an application to extend the convening period for the first time, under the power expressly given for that purpose under s 439A(6) of the Corporations Act. In Re Lombe; Australian Discount Retail Pty Ltd [2009] NSWSC 110 at [31], Barrett J expressed doubt about whether that provision authorises subsequent extensions even though, by that time, s 439A(6) did permit an extension to be granted on an application made during or after the extension of the convening period.

38    It does not appear that the doubt has ever been dispelled; administrators, perhaps approaching the matter conservatively, regularly apply for second or subsequent extensions under s 447A of the Corporations Act, empowering the Court to make such order as it thinks appropriate about how Part 5.3A is to operate in relation to a particular company. It is well established that that provision authorises extensions in those circumstances: Strawbridge, in the matter of Virgin Australia Holdings Ltd (administrators appointed) (No 7) [2020] FCA 1182 at [12] (Middleton J). It is also established that the exercise of the discretion is to be approached on the same basis as it is under s 439A(6): see Strawbridge at [14].

Extending the convening period where no DOCA is to be proposed

39    Rathner is relevant to the first of the specific issues raised above, because in that case, the purpose of the extension was to enable the company to continue trading to extract the maximum possible revenue that could be earned under a particular agreement, so as to maximise the funds available to creditors. That and the length of the extension sought (12 months) led O'Bryan J to describe it as 'an unusual application': Rathner at [39]. While it was possible that a restructure of the company by means of a DOCA might have eventuated, no proposal was before the administrator and it was not certain that one would emerge: Rathner at [40].

40    In that context, O'Bryan J observed (Rathner at [42]):

The object of Part 5.3A, as expressed in s 435A of the Act, is expressed in the alternative: to provide for the business, property and affairs of an insolvent company to be administered in a way that maximises the chances of the company or its business continuing in existence or, if that is not possible, results in a better return for the company's creditors and members than would result from an immediate winding up. Thus, the purpose of the regime in Part 5.3A is not limited to providing insolvent companies with an opportunity to restructure in order to continue in existence. If it is not possible for the company to continue in existence, the purpose of the regime is to provide for the affairs of the company to be administered in a manner that results in a better return for the company's creditors and members than would result from an immediate winding up. The statutory purpose makes plain that Part 5.3A is intended to operate as a flexible regime for insolvent companies to achieve a better outcome for creditors and members. As observed by Sundberg J in Dallinger v Halcha Holdings Pty Ltd (administrator appointed) (1995) 60 FCR 594 at 601, the provisions of Part 5.3A should be given a beneficial construction.

His Honour granted the extension sought.

41    Each case of this kind turns on its particular facts and in Rathner there was at least a possibility that a DOCA proposal would emerge; here there appears to be none. Nevertheless, I respectfully agree with O'Bryan J's analysis of the statutory purpose behind Part 5.3A. I see no reason why the Part does not permit winding up to be postponed so as to obtain a better return to creditors, in an appropriate case.

42    The reference in the objects provision (s 435A(b)) to 'a better return for the company's creditors and members than would result from an immediate winding up' (emphasis added) may imply that postponement of winding up in those circumstances is still within the objects of Part 5.3A. Also, the comprehensive conferral of powers on the administrator found in s 437A confirms that, in an appropriate case, it can be within the objects of Part 5.3A for the administrator to use the time provided by such a postponement to carry on the business and/or dispose of all or part of it: see s 437A(1)(b) and s 437A(1)(c).

43    For those reasons, I was satisfied that the orders sought in this case were consistent with the objects of Part 5.3A, so that they could be made if, in the circumstances, it was an appropriate exercise of the discretion under s 447A to do so.

Secured and unsecured creditors

44    The second specific issue arose because any further extension of the convening period is only likely to benefit secured creditors, and the statements of principle in many of the key cases speak in terms of the interests of unsecured creditors. That is reflected in the summary and quotes contained in the excerpt from Quintis given above. For example, in Mighty River International Limited v Hughes [2018] HCA 38; (2018) 265 CLR 480 at [73], Nettle and Gordon JJ give as a general reason why courts have been disposed to grant extensions as 'where the additional time is likely to enhance the return to unsecured creditors'.

45    That reflects an intuition that may be held, based on common experience, that Part 5.3A administrations are chiefly intended to benefit the interests of unsecured creditors. That intuition is arguably supported, for example, by the provisions of Division 7 of Part 5.3A, which in broad terms gives secured creditors the right to enforce their securities in certain circumstances, despite the administration. It may also find support in the fact that secured creditors will only be bound by a DOCA if they vote in favour of it: s 444D(2)(a).

46    Nevertheless, that intuition would not survive any closer scrutiny of Part 5.3A. As has already been noted, the objects provision (s 435A(b)) speaks in terms of 'a better return for the company's creditors and members', drawing no distinction between those that are secured and those that are unsecured. And that can be characterised as the secondary object of Part 5.3A, since it only applies if the primary object found in s 435A(a) cannot be achieved, that is, if it is not possible for the company or as much as possible of its business to continue in existence. That primary objective also gives no preference to unsecured over secured creditors.

47    Further, one of the persons who may appoint an administrator to a company is a 'person who is entitled to enforce a security interest in the whole, or substantially the whole, of a company's property … if the security interest has become, and is still, enforceable': s 436C(1). Part 5.3A therefore contemplates that the administration process can be enlisted by, and implicitly for the benefit of, a secured creditor.

48    I was therefore persuaded, as counsel for Mr Mableson submitted, that the references in the authorities to the interests of unsecured creditors are non-exhaustive, that is, they do not signify that those are the only creditors whose interests are to carry weight in the exercise of the discretion. Many of the references to unsecured creditors in the cases can be traced to a list of relevant considerations which Austin J gave in Re Riviera Group Pty Ltd (admin apptd) (recs and mgrs apptd) [2009] NSWSC 585 at [13] (see Quintis [58] quoted above). But this was one of many 'broad categories' into which Austin J grouped reasons why extensions had been granted in previous cases.

49    Other broad statements of the principle on which the Court should act in these cases do not speak only of unsecured creditors: see for example Re Diamond Press Australia Pty Ltd [2001] NSWSC 313 at [10] (quoted with approval by Nettle and Gordon JJ in Mighty River at [73]); and Strawbridge, in the matter of Virgin Australia Holdings Ltd (administrators appointed) (No 2) [2020] FCA 717 at [64] (Middleton J). So, for example, in Owen, in the matter of Rivercity Motorway Pty Limited (Administrators Appointed) (Receivers and Managers Appointed) v Madden [2011] FCA 295 Logan J granted an extension (of some 21 months) in circumstances where unsecured creditors were unlikely to receive any dividend from the sale of the company's business: see in particular at [34], where his Honour reasoned that the likely absence of any such dividend meant that the unsecured creditors were unlikely to be prejudiced by such a long extension. See as another example Hill, in the matter of Autocare Services Pty Ltd (administrators appointed) [2021] FCA 167 (Farrell J).

Why an extension was granted in this case

50    The views just set out led to the conclusion that the absence of any DOCA proposal, and likely absence of any return to unsecured creditors, were not necessarily impediments to the grant of an extension of the convening period. They were matters that could be taken into account in the exercise of the discretion, like any other. As to that, it would appear unlikely that unsecured creditors will be prejudiced by further delay in the convening of the second meeting. It is true that liquidation might benefit them if opportunities to recover preference payments and the like are identified, but at present the idea that a further delay of 2½ months will damage such prospects in a material way is speculative.

51    In this case, Mr Mableson presented a clear commercial imperative for further postponement of the second meeting. The complexity of the steps that needed to be taken to give effect to and make suitable amendments to the Pre-Appointment Agreement may readily be accepted. So too may the likely adverse impact of liquidation on the practicability of such steps, and on the other asset realisations of Bibere and Crescere mentioned above. In those circumstances, a further extension of some 2½ months was reasonable.

52    As to Opportuna, saving the costs of calling a meeting for it separately was a legitimate reason for extending the convening period. The fact that it has been dormant meant that no one was likely to be prejudiced.

53    Mr Mableson's opinion, set out above, was given weight. It is also relevant that he adduced evidence (albeit hearsay, which I decided to admit under s 66A of the Evidence Act 1995 (Cth)) that the three main secured creditors had informally indicated that they do not object to the proposed extension. I was concerned that unsecured creditors had not been notified of the application for a further extension, but as noted they had been notified of the original application, and none objected, and the orders made on 14 May 2025 provided for any person affected by them to have liberty to apply. The Australian Securities and Investments Commission did not appear.

54    For those reasons, the orders set out at the beginning of these reasons were made.

Associate:

Dated:    22 May 2025