Federal Court of Australia

Otway, in the matter of Chris Evans Transport Pty Ltd (Administrators Appointed) [2026] FCA 1269

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 447A(1) of the Corporations Act 2001 (Cth) (Act) and/or s 90-15(1) of the Insolvency Practice Schedule (Corporations) (IPS), Pt 5.3A of the Act is to operate in relation to the second plaintiff, Chris Evans Transport Pty Ltd (Administrators Appointed), as if:

(a)    r 75-140(3) of the Insolvency Practice Rules (Corporations) 2016 (Cth) (IPR) omitted the words “45 business days” and, instead of those words, contained the phrase “87 business days”, to the intent that the last business day to which the second meeting of creditors on 28 August 2026 (Meeting) may be adjourned is 28 October 2026;

(b)    Part 5.3A of the Act allowed adjournment of the Meeting convened under s 439A of the Act in relation to the second plaintiff to a day not later than 28 October 2026, notwithstanding the operation of r 75-140(3) of the IPR;

(c)    the requirement to hold a meeting of creditors of the second plaintiff within the convening period specified in s 439A(2) of the Act will be satisfied by holding the adjourned meeting no later than 28 October 2026;

(d)    notwithstanding r 75-140(6) of the of the IPR or otherwise, the Meeting, as adjourned, may be resumed at any time before 28 October 2026, even if it had already been adjourned to 28 October 2026, provided the first plaintiffs give notice of the time and date of resumption of the Meeting to all persons to whom notice must be given under r 75-10 of the IPR no less than five (5) business days before the resumption of the Meeting, and provided that the requirements of r 75-140 of the IPR are otherwise complied with in respect of such meeting.

2.    Subject to order 3, pursuant to s 37AF(1) of the Federal Court of Australia Act 1976 (Cth), the second affidavit of Matthew Ormsby affirmed on 19 August 2026 (Second Ormsby Affidavit) be marked “Confidential” on the Court’s file and not be published or accessed by any person except pursuant to order of the Court.

3.    Order 2 does not prevent the first plaintiffs, the first plaintiffs’ legal representatives or the first plaintiffs’ servants, agents or employees, from disclosing, publishing or accessing the affidavit and the documentation and information contained therein.

4.    Pursuant to s 37AJ of the Federal Court Act, the affidavit identified in order 2 herein, shall remain confidential until further order.

5.    Within two business days, the first plaintiffs are to cause notice of this Order to be provided to:

(a)    each of the known creditors of the second plaintiff;

(b)    the director of the second plaintiff; and

(c)    Australian Securities and Investments Commission (ASIC)

(the Notified Parties) with such notice to be provided to the Notified Parties by taking the following steps:

(d)    where the first plaintiffs:

(i)    have the email address of the relevant Notified Party, by email to that email address; and

(ii)    do not have the email address of the relevant Notified Party, but have a postal address (or have received notice of non-delivery of a notice sent by email in accordance with paragraph 4(d)(i)), by ordinary pre-paid post to that address.

6.    The first plaintiffs’ costs of and incidental to this application be costs and expenses in the administration of the second plaintiff and be paid out of the assets of the second plaintiff.

7.    Any officer, contributory, or creditor of the second plaintiff, and any other person who can demonstrate sufficient interest, has liberty to apply to vary or discharge this Order on two business days’ notice.

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

REASONS FOR JUDGMENT

O’SULLIVAN J:

1    On 9 June 2026, Feutrill J ordered that pursuant to s 447A of the Corporations Act 2001 (Cth), Pt 5.3A of the Act is to operate in relation to the second plaintiff, Chris Evans Transport Pty Ltd (Administrators Appointed) (Company), as if the first plaintiff, Thomas Stuart Otway and Matthew Ormsby, are and were on 21 May 2026, duly and validly appointed the joint and several voluntary Administrators of the Company pursuant to s 436A of the Act: Otway v Evans, in the matter of Chris Evans Transport Pty Ltd [2026] FCA 721.

2    This is an urgent application by the Administrators pursuant to s 447 of the Act and s 90-15 of the Insolvency Practice Schedule (Corporations) being Schedule 2 to the Act for the second meeting of creditors to be adjourned to 28 October 2026.

3    The matter was heard as a duty matter at which time the Court made the orders sought. These are the reasons for making those orders.

4    The Company operated and under the Administrators’ control, continues to operate, a food transport and general haulage business from Renmark, South Australia.

5    Pt 5.3A of the Act has as its objective to provide for the business, property and affairs of an insolvent company to be administered in a way that:

(a)    maximises the chances of the company, or as much as possible of its business, continuing in existence; or

(b)    if it is not possible for the company as its business to continue in existence – results in a better return for the company’s creditors and members than would result from an immediate winding up of the company: s 435A of the Act.

6    On 2 June 2026, a first meeting of creditors was held after which the Administrators investigated a proposed Deed of Company Arrangement, however that did not come to fruition.

7    The Administrators have formed the view that the business and assets of the Company should be advertised and interest sought for sale as a going concern in order to achieve the statutory purpose set out in Pt 5.3A of the Act.

8    The second meeting of creditors was held on 26 June 2026, at which time pursuant to r 75-140(3) of the Insolvency Practice Rules (Corporations) 2016 (Cth), the meeting was adjourned for the maximum allowable period of 45 days to 28 August 2026 to allow sufficient time for the advertising and sale process to progress.

9    The Administrators considered the period of 45 days was sufficient to enable that process to be completed.

10    However, whereas negotiations for the sale of the business as a going concern have advanced, they are not at a stage whereby they are able to be completed by the adjourned date. Since the second meeting of creditors has already convened and then adjourned for the maximum allowable period, it is necessary for the Administrators to apply to the Court to extend the time by which the adjourned meeting may be further adjourned, i.e. beyond the initial maximum period of 45 days.

11    Under those circumstances, the Administrators apply for an order adjourning the second meeting of creditors to 28 October 2026.

12    In an affidavit affirmed 19 August 2020, Mr Ormsby deposes to the consequences if the second meeting of creditors is not adjourned. Those consequences include that the Company be wound up with a number of consequential detrimental effects, including not only adversely affecting the sale process, but also the potential for the protection of s 440B of the Act to be lost. A further detriment is that the benefit of the operation of s 267 of the Personal Property Securities Act 2009 (Cth) by which various assets vested in the Company upon the appointment of the Administrators may be lost.

13    The detriment to which Mr Ormsby deposes is significant in the particular circumstances of this matter.

14    At the hearing of the application, Mr Chris Evans sought leave to be heard by his solicitor, Mr Griffin. Mr Evans was formerly in partnership with his wife, the late Ms Jane Evans.

15    Mr Evans contends that a number of the assets of the Company in fact belong to the partnership and opposed the adjournment application on that basis.

16    There is a dispute over that issue between Mr Evans and the Administrators.

Principles

17    Section 447A(1) of the Act provides: “The Court may make such order as it thinks appropriate about how this part is to operate in relation to a particular company”. Section 90-15(1) of the IPS provides: “The Court may make such orders as it thinks fit in relation to the external administration of a company”.

18    There is no issue that the sections have broad reach: Australasian Memory Pty Ltd v Brien (2000) 200 CLR 270 at [17]-[18].

19    The power to extend time should not be exercised lightly: Re WBHO Australia Pty Ltd (Administrators Appointed) (No 2) [2022] FCA 234 at [16] (Beach J). Having made that observation, his Honour continued:

But Pt 5.3A should be given a commercial construction and application which reflects the reality of the setting in which both the relevant company under administration and the administrator find themselves. The Court must balance the expectation that administration will be a relatively speedy and summary matter against the consideration that undue speed should not be allowed to prejudice constructive commercial actions directed to maximising the return for creditors. The perspective from which Pt 5.3A should be applied should not be narrow, and its application should not be refracted through the pessimistic lens of an insolvency technician. And in that context, generally there is usually greater upside than downside in granting an extension for a reasonable period, where the reasonableness of the duration of the extension is contextualised by the particular circumstances.

See also Re Virgin Australia Holdings Ltd (Administrators Appointed) (No 2) [2020] FCA 717 and the cases cited therein.

Consideration

20    Whereas there is a dispute between Mr Evans and the Administrators over the ownership of a number of the assets used by the Company, that is not a matter that can be resolved at this stage. With respect, it is also not a reason to refuse the application.

21    Having considered the material put before the Court by the Administrators, I accept that further time is required to complete negotiations and, if applicable, the sale process which, I also accept, will maximise the chances of a better outcome for creditors.

22    It is for those reasons that the orders sought by the Administrators will be made.

23    The plaintiffs also seek a Daisytek order that notwithstanding the requirements of s 439A(2), the meeting may be held at any time during the period composed of the convening period as extended and the period of five business days thereafter: Re Daisytek Australia Pty Ltd (Administrators Appointed) [2003] FCA 575. I am satisfied that making such an order is appropriate in the circumstances.

Confidentiality orders

24    Part of the material filed by the plaintiffs to which I have referred, but not in any detail, for reasons which will become obvious, are the subject of an application for suppression orders pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) relying on the ground in s 37AG(1)(a) that the order is necessary to prevent prejudice to the proper administration of justice.

25    There have been numerous authorities dealing with the principles justifying the making of a suppression order. One such ground for the making of an order is commercial sensitivity: Re Jabaluka Pty Ltd (in liq) [2022] FCA 1012 at [6] (Cheeseman J):

It is well established that commercial sensitivity can be an appropriate basis for making a suppression or non-publication order: Clark v Digital Wallet Pty Ltd [2020] FCA 877 at [21]-[22] (Abraham J); see also Australian Competition and Consumer Commission v Air New Zealand Limited (No 3) [2012] FCA 1430 at [35] (Perram J); Australian Competition and Consumer Commission v Origin Energy Electricity Ltd [2015] FCA 278 at [148] (Katzmann J). Further, the clear public interest in the due and beneficial administration of the estates of insolvent companies for the benefit of creditors is a relevant consideration in favour of granting an order under s 37AF: see Onefone Australia Pty Ltd v OneTel Ltd [2010] NSWSC 498; 78 ACSR 163 at 164 [2] - [5] (Barrett J as his Honour then was).

26    There is no doubt that there is commercial sensitivity surrounding the ongoing negotiation for the sale of the company and its business on a going concern and a substantial risk that the sale process will be adversely affected in the event that suppression orders are not made over the material put before the Court in support of the application. There will be orders accordingly.

Other matters

27    The Australian Securities and Investments Commission has been notified of this application as have the creditors. Other than Mr Evans, no objection to the application has been received.

CONCLUSION

28    Since the orders may affect the interests of creditors or others interested in the orders, there will be liberty to apply to any person with a sufficient interest in the orders to vary or discharge the orders adjourning the second meeting of creditors within the period five business days following the making of the orders.

Associate:

Dated:    28 August 2026