Federal Court of Australia

Caddy, in the matter of Roberts Co (VIC) Pty Ltd (Administrators Appointed) (No 3) [2025] FCA 569

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory process filed on 15 April 2025 be made returnable at 9:30 am AEST on 16 April 2025.

Extension of convening period

2.    Pursuant to ss 439A(6) and 447A(1) of the Corporations Act 2001 (Cth) (the Act), the convening period defined in s 439A(5)(b) of the Act for the meeting of creditors of the Second Plaintiff is extended from 22 April 2025 to 23 June 2025.

3.    Pursuant to s 447A(1) of the Act, Part 5.3A of the Act is to operate in relation to the Second Plaintiff such that, notwithstanding s 439A(2) of the Act, the meeting of the creditors of the Second Plaintiff required under s 439A of the Act may be convened at any time during, or within five business days after the end of, the convening period, as extended by Order 2 above, provided that the Administrators give notice of the meeting to creditors of the Second Plaintiff (or those persons claiming to be creditors of the Second Plaintiff) at least five business days before that meeting.

Ancillary orders

4.    The First Plaintiffs must take all reasonable steps to cause notice of these Orders to be given, within one business day, to:

(a)    the creditors (including persons claiming to be creditors) of the Second Plaintiff, in the following manner:

(i)    where the First Plaintiffs have an email address for a creditor, notifying each such creditor, via email, of the making of the orders and providing a link to a website where the creditor may download the orders and the interlocutory process;

(ii)    where the First Plaintiffs do not have an email address for a creditor but have a postal address for that creditor (or have received notification of non-delivery of a notice sent by email in accordance with sub-Order (i) above), notifying each creditor, via post, of the making of the orders and providing a link to a website where the creditor may download the orders and the interlocutory process; and

(iii)    placing scanned, sealed copies of the orders and the interlocutory process on the website maintained by the First Plaintiffs at https://www.mcgrathnicol.com/creditors/roberts-co-vic-pty-limited; and

(b)    the Australian Securities and Investments Commission; and

(c)    the Deputy Commissioner of Taxation; and

(d)    the Attorney-General’s Department (administering the Fair Entitlements Guarantee Scheme).

5.    Any person who can demonstrate a sufficient interest has liberty to apply to vary or discharge the order made pursuant to Order 1 above, on three business days’ notice being given to the Plaintiffs and the Court.

6.    The First Plaintiffs have liberty to apply on one business days’ notice to the Court in relation to any variation or discharge of the Court’s orders.

Costs

7.    The Plaintiffs’ costs of and incidental to this application be costs in the administration of the Second Plaintiff.

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

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    The first plaintiffs, Messrs Matthew Caddy and Jason Ireland (the Administrators), are the joint and several administrators of the second plaintiff, Roberts Co (VIC) Pty Ltd (the Company). By an interlocutory process lodged on 15 April 2025, the Administrators seek orders under ss 439A(6) and 447A(1) of the Corporations Act 2001 (Cth) (the Act) extending the convening period for the second meeting of creditors of the Company by two months, from 22 April to 23 June 2025 (the Application). I note this is the second application brought in the administration: Caddy, in the matter of Roberts Co (VIC) Pty Ltd (Administrators Appointed) [2025] FCA 243: and, with the benefit of hindsight, not the last: Caddy (Administrators Appointed), in the matter of Roberts Co (Vic) Pty Ltd (Administrators Appointed) [2025] FCA 492.

Rationale articulated for grant of the Application

2    The Application is said to be pressed for three reasons.

3    First, to afford the Administrators adequate time to undertake and pursue the tasks required of them in the carriage of the administration of the Company. That is said to include, for example, (a) consideration and finalisation of a foreshadowed deed of company arrangement (DOCA); (b) further investigation into the affairs of the Company and potential claims available to it in the course of liquidation; (c) continuation and finalisation of negotiations and discussions with the principals of several major construction projects in Victoria; and (d) consideration of what course is in the best interests of the creditors (that is, whether to vote in favour of the DOCA proposal, assuming that one will appear, or to otherwise put the Company into liquidation).

4    Second, to allow the Company to pursue recovery of unpaid payment claims under the Building and Construction Industry Security of Payment Act 2002 (Vic). That opportunity will be lost should the Company enter liquidation: see, eg, Façade Treatment Engineering Pty Ltd (in liq) v Brookfield Multiplex Constructions Pty Ltd (2016) 337 ALR 452, 453 [2], 464 – 465 [56(1)].

5    Third, to increase the chance of the Company, or as much as possible of its business, continuing in existence and, if that is not possible, to maximise the returns available to creditors.

The administration thus far

6    The Company carries on business as a construction contractor. It is a wholly-owned subsidiary of Roberts Co Australia and a member of the broader Roberts Co group of companies (Group), although it is the only company in the Group that is in administration.

7    The Administrators were appointed to the Company on 14 March 2025. As at that date, the Company was engaged in four “major” construction projects in Victoria (which pertain to the design and construction of a 28-storey office building as well as a distribution centre) and three “smaller” construction projects at Victorian schools. In passing, one ought not underestimate the consequences of the Company’s involvement in such projects. Whilst it may be somewhat easy to appreciate that, from to time, other companies can take over projects and pursue them, that course will, however, undoubtedly come at some not insignificant cost to other parties.

8    On the evidence before the Court, it is apparent that the Administrators have, in the course of the administration, been assiduous in performing that which is required of them. They have, inter alia, engaged with the creditors of the Company (including by convening the first meeting of creditors: s 436E of the Act), liaised and met with the relevant committee of inspection (the COI; see s 80-35 of the Insolvency Practice Schedule (Corporations) (Schedule 2 to the Act)), engaged in discussions with the principals of the “major” projects and issued notices to third parties with security over personal property in the Company’s possession (see s 443B(3) of the Act). They have also caused Company employees to be made redundant and paid all amounts due to them in respect of their accrued leave entitlements and payment in lieu of notice.

9    Furthermore, they have undertaken a series of investigations as to the financial position and affairs of the Company. As Mr Costello KC and Ms Hooper duly note on behalf of the first plaintiffs, that process has been hindered by several factors arising from the unique commercial circumstances of the Group. Amongst other things, the Company and other members of the Group have prepared consolidated financial accounts. Their books and records are somewhat co-mingled. The Administrators have made requests for information which presently remain outstanding. Whilst a deed of cross-guarantee between members of the Group was revoked in February 2025, the relevant revocation deed is liable to be avoided should the Company enter liquidation before 12 August 2025. Albeit some time away, that fact provides fertile ground for further issues to arise and, therefore, ought be the subject of due consideration.

Extension of the convening period

10    By reason of s 439A of the Act, the Administrators are presently required to convene the second meeting of creditors by no later than 22 April 2025 (and to hold that meeting by 30 April 2025). In an affidavit filed with the Court on 16 April 2025 (the Caddy Affidavit), Mr Caddy expresses the view that, having regard to the substantial work left to pursue, the Administrators are not presently in a position to prepare a meaningful report to creditors by 22 April 2025 as required by s 75-255 of the Insolvency Practice Rules (Corporations) 2016 (Cth) – particularly in the absence of the foreshadowed DOCA proposal. In that vein, I note the helpful observation made by Mr Costello KC that there exists “highly motivated” persons who are likely to produce a DOCA in terms that are, at least prima facie, acceptable to creditors in the near future. Should that circumstance indeed eventuate, the Administrators would, of course, be in a position to consider the proposal and provide a meaningful report to creditors as to the best way forward.

11    To that end, it is relevant the Administrators are not seeking an extension for any significant period. It is only for two months. That being said, it is apt to observe that extensions of time for the convening of the second creditors’ meeting are not simply for the asking. It was not the intention of the Act that administrations were to assume the complexion of prolonged corporate restructuring exercises. On the contrary, the process is to be short and sharp, and the creditors are entitled to determine whether to accept a composition of their debts or that the company be put under the control of liquidators. On any view, Part 5.3A of the Act imposes limitations on creditors’ rights which are rendered evermore severe each time there is an extension of the convening period. That is not to deny the infinite variety of circumstances that will arise for consideration and which can justify a number of extensions which further the purposes of the Part as are identified in s 435A of the Act. Nevertheless, courts must not lose sight of the rights of creditors, particularly unrelated creditors, that require close and constant consideration.

12    The principles relevant to the Application are set out in the careful and thoughtful submissions of the plaintiff, which I gratefully adopt. I have made reference to such principles elsewhere: see, eg, Marsden, Re Brindabella Christian Education Ltd (Admins Apptd) [2025] FCA 456 [46] – [48]; Rose, in the matter of Cowch Holdings Pty Ltd (Administrators Appointed) [2023] FCA 413 [11] – [17]; Park, in the matter of IG Power (Callide) Ltd (Administrators Appointed) (No 3) [2024] FCA 1245 [5] – [10]: and further ink need not be wasted repeating them here.

13    An important consideration in the calculus before me is the view(s) of the Administrators: see Re Strawbridge (in their capacity as joint and several voluntary administrators of each of Virgin Australia Holdings Ltd (admins apptd)) (No 2) (2020) 144 ACSR 347, 371 [68] (Re Strawbridge (No 2)). They are generally regarded as being “significant”: see, eg, Woodhouse (Administrator), in the matter of Panoramic Resources Limited [2024] FCA 22 [18], citing Re Renex Holdings (Dandenong) 1 Pty Ltd (admins apptd) [2015] NSWSC 2002 [9]; Freeman, in the matter of Regional Express Holdings Limited (administrators appointed) (No 2) [2024] FCA 968 [35]. Here, the Administrators are well-known and respected within their profession, and, in my opinion, they have given thoughtful consideration to the circumstances of the case.

14    First, they have accorded careful cogitation to realising the best return for creditors of the Group which, in their view, would be best preserved by grant of the Application. Whilst that view is at odds with the need for a relatively speedy and summary administration process, it is entirely reasonable having regard to the difficulties encountered by the Administrators thus far and their proposed course should the Application be granted: Re Strawbridge (No 2) 370 [64]. Second, they have paid due regard to the “several advantages and few, if any, disadvantages” that might flow from the extension of the convening period, including the potential detriments associated with the premature winding up of the Company which is addressed within the Caddy Affidavit. In the context of this case, the time available has proven insufficient for the Administrators to complete the required tasks and they require more time.

15    Another issue in the weighing of these factors is whether the creditors consent to the proposed extension: see, eg, Wight, in the matter of Responsible Entity Services Ltd (Administrators Appointed) [2024] FCA 458 [35(d)]. Whilst one member of the COI expressed slight hesitation as to the proposed length of the extension, all other members supported the Application and no opposition has been mounted before the Court today. It seems to me that there are a sufficient number of creditors who have been informed of this application that, if there were any significant problems in relation to the extension of time, one creditor would have come forward and produced some argument.

16    For present purposes, there is no difficulty in accepting that no creditor has any major grounds on which the application should be refused.

17    In those circumstances, and where there is a tangible prospect of the creditors being better off should the convening period be extended, it is appropriate to make the orders as proposed by Mr Costello KC and Ms Hooper for the first plaintiffs.

Note

18    These are the amended and revised reasons for judgment given on 16 April 2025. Whilst the reasons given above refine and develop those that were delivered ex tempore, the substance of what was said on 16 April has not been changed nor has any other material change been made.

Associate:    

Dated:    2 June 2025