Federal Court of Australia

Juratowitch (Administrator), in the matter of A&S Wholesale Fruit and Vegetables Pty Ltd (Administrators Appointed) [2026] FCA 1317

ORDERS

THE COURT ORDERS THAT:

1.    The originating application dated 31 July 2026 be made returnable at 2.15pm on 3 August 2026.

2.    Pursuant to section 447A(1) of the Corporations Act 2001 (Cth) (Act), Part 5.3A of the Act is to operate in relation to the administration of the second and third plaintiffs (together, the Companies) as if:

(a)    section 75-140(3) of the Insolvency Practice Rules (Corporations) 2016 (Cth) (Insolvency Practice Rules) omitted the words “that is more than 45 business days after the first day on which the original meeting was held” and included instead of the omitted words the words “no later than 14 October 2026”;

(b)    Part 5.3A allowed adjournment of the meeting convened under s 439A of the Act in relation to the Companies to a day not later than 14 October 2026, despite the operation of s 75-140(3) of the Insolvency Practice Rules; and

(c)    The requirement to hold a meeting of creditors of the Companies within the convening period specified in s 439A(2) of the Act is satisfied by holding the adjourned meeting no later than 14 October 2026, and provided that the requirements of s 75-140 of the Insolvency Practice Rules are otherwise complied with in respect of such meeting.

3.    Pursuant to s 447A(1) of the Act, Part 5.3A of the Act is to operate such that the requirement imposed on the first plaintiff to issue notices under ss 75-15 and 75-225 of the Insolvency Practice Rules is modified such that notices of the second meeting of creditors of the Companies will be validly given to any creditor by, not less than five (5) business days prior to the date of the proposed meeting:

(a)    publishing it on the website maintained by the first plaintiff in respect of the administration of the Companies (Administrations Website); and

(b)    by sending it via email to the email address of any creditor (including persons claiming to be creditors) of the Companies for whom the first plaintiff holds an email address; or

(c)    if the first plaintiff do not hold an email address or if notice is received by the first plaintiff that a notice sent in accordance with (b) has not been received, sending such notice by ordinary post to creditors of the Companies for whom the first plaintiff has a postal address.

4.    The first plaintiff is to give notice of these orders to all known creditors of the Companies and to the Australian Securities and Investments Commission by means of a circular published on the Administrations Website and by post or by email (as the case may be), by no later than 4.00pm on 4 August 2026.

5.    Liberty to apply be granted to any creditor or any person who can demonstrate sufficient interest to make such an application to vary or discharge these orders upon three (3) clear business days’ written notice to the first plaintiff by their solicitors on record and to the Court.

6.    The first plaintiff’s costs of and incidental to this application be costs and expenses in the administrations of the Companies.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

WHEATLEY J:

INTRODUCTION

1    This originating application is to extend the adjourned period of the second meeting of creditors. Mr Daniel Peter Juratowitch and Ms Rachel Elizabeth Burdett were appointed joint and several administrators (Administrators) on 4 May 2026 (Appointment Date) of A & S Wholesale Fruit & Vegetables Pty Ltd ACN 006 598 796 (second plaintiff) and MPF Admin Pty Ltd ACN 633 691 844 (third plaintiff) (together the Companies), pursuant to s 436A of the Corporations Act 2001 (Cth) (Corporations Act).

2    The first meeting of creditors occurred on 14 May 2026. The second meeting of creditors commenced on 9 June 2026 and was adjourned. Without the extension that is sought, the period of the adjournment for the second meeting permitted by s 75-140(3) of the Insolvency Practice Rules (Corporations) 2016 (Cth) (Insolvency Practice Rules), being 45 business days, will expire on 11 August 2026.

3    The urgency which necessitated this application being heard as a duty matter was that, absent the Court granting an extension, the second creditors’ meeting was required to be held on 11 August 2026 and the Administrators would be required to give notice of the meeting to creditors together with a report to creditors by 4 August 2026, being five business days before the meeting: s 75-225 of the Insolvency Practice Rules.

4    Notice of this application has been given by the Administrators to all creditors and other stakeholders. None of the interested parties sought to be heard on this application. None have appeared in the court on the hearing of this application. On 31 July 2026, the Administrators by their solicitors also notified the Australian Securities and Investments Commission (ASIC) of the application and the hearing. ASIC has not appeared today, and it is apparent it does not seek to be heard.

5    On 10 June 2026, creditors were advised that the second meeting was adjourned for 45 days, and it was anticipated to resume on 11 August 2026.

6    On 29 July 2026, the Administrators issued a circular to creditors of the Companies notifying creditors that the Administrators intended to make this adjournment application. Details of the hearing date and time were provided to creditors. This circular advised creditors of both of the Companies that:

The extension is sought to allow the Administrators to continue progressing a potential Deed of Company Arrangement (DOCA) aimed at maximising returns to creditors, complete further investigations into the Company’s affairs, and facilitate any ongoing negotiations required under the Asset Sale Agreement (ASA), as outlined in previous reports to creditors.

7    Some of the creditors have responded to the recent circulars on 29 and 31 July 2026. However, none of those responses opposed the adjournment application made by the Administrators. Further, as already observed, no creditors have appeared today to oppose the extension to the adjournment period of the second meeting.

POWER TO EXTEND THE ADJOURNMENT PERIOD - SECOND MEETING

8    Section 439A of the Corporations Act requires that an administrator of a company under voluntary administration must convene a meeting of the company’s creditors within the convening period as fixed by subsection (5) or as extended by subsection (6): see IMO the University Child Care Club Inc (Administrators Appointed) [2024] WASC 430 at [28] (Strk J). Pursuant to s 439C, at a meeting convened under s 439A, the creditors may resolve one of three matters, that the company in voluntary administration either:

(1)    execute a deed of company arrangement;

(2)    that the administration should end; or

(3)    that the company be wound up.

see Re Dixon, Pearson Contracting Pty Ltd atf Pearson Family Trust (Administrator Appointed) [2020] FCA 1505 at [17] (O’Bryan J).

9    The adjournment of the second meeting cannot extend beyond 45 business days after the first day on which the second meeting was held: s 75-140(3) of the Insolvency Practice Rules. Further, at least five business days before that meeting, the Administrators would have to give notice of the resumed meeting and provide a report to creditors which addresses the matters in s 75-225(3) of the Insolvency Practice Rules.

10    Section 447A(1) provides that the Court may make such orders as it thinks appropriate regarding how Pt 5.3A will operate in relation to a particular company. There is nothing on the face of s 447A that suggests that it should be read down, rather, the power given by the general words are wide enough to make orders which will effect, in the future, something that has been done or not done under the other provisions of Pt 5.3A: see Australasian Memory Pty Limited v Brien (2000) 200 CLR 270; [2000] HCA 30 at [17] (Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ). In Georges, in the matter of Vical N.S.W. Pty Ltd (Administrators Appointed) [2018] FCA 1974 at [25], Yates J concluded that s 447A gives the Court power to extend the period of adjournment permitted under s 75-140(3) of the Insolvency Practice Rules. In this regard, also see Re Dixon at [22]-[24], which I gratefully adopt and agree with.

11    Relevantly, as O’Bryan J observed in Re Dixon, the principles and considerations relevant to whether to grant an extension to the convening period are similar to those which would be applicable for an extension to the period of adjournment in relation to the second meeting: Re Dixon at [25].

12    As summarised in Re Riviera Group Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed) (2009) 72 ACSR 352; [2009] NSWSC 585 at [13], Austin J identified the following categories of cases in which an extension had been granted:

13    The reasons given for an extension in subsequent cases can be grouped into the following broad categories:

•    the size and scope of the business: Re Lombe; Babcock & Brown Ltd (admins apptd) [2009] FCA 349 (Re Lombe); Re Worrell; Storm Financial Ltd (recs and mgrs apptd) (2009) 69 ACSR 584; [2009] FCA 70 (Re Worrell); Re ABC Learning Centres Ltd; Application by Walker (No 5) [2008] FCA 1947;

•    substantial offshore activities: Re Lehman Bros Australia Ltd [2008] NSWSC 1132;

•    large number of employees with complex entitlements: Re S & D International Pty Ltd (in liq); Malhotra v Tiwari [2005] VSC 496; Re Ansett Australia Ltd and Korda; sub nom Ansett Australia Ltd (No 3) (FCR) (2002) 115 FCR 409; 40 ACSR 433; [2002] FCA 90;

•    complex corporate group structure and intercompany loans: Re Lombe; Re Octaviar Ltd (admins apptd) (recs and mgrs apptd) (ACN 107 863 436) [2008] QSC 272; Re LED Builders Pty Ltd (admin apptd) [2008] NSWSC 633; Hall; Re Australian Capital Reserve Ltd (admins apptd) [2007] FCA 1328;

•    complex transactions entered into by the company (e.g. securities lending or derivatives transactions): In Re Lift Capital Partners Pty Ltd (admin apptd) [2008] NSWSC 446 (Re Lift Capital);

•    complex prospects of recovery proceedings: Re Worrell; Coal Developments (German Creek) Pty Ltd v Cmr of Taxation (2007) 241ALR 667; [2007] FCA 1324;

•    lack of access to corporate financial records: Re Sims; Destra Corp Ltd [2008] FCA 2002; Re Fincorp Group Holdings Pty Ltd (2007) 62 ACSR 192; [2007] NSWSC 363;

•    the time needed to execute an orderly process of disposal of assets: Re Carter, SFM Australasia Pty Ltd (admin apptd) (ACN 105 317 333) (No 2) [2009] FCA 419; Re ABC Learning Centres Ltd; Application by Walker (No 7) (2009) 71 ACSR 560; [2009] FCA 454;

•    the time needed for thorough assessment of a proposal for a deed of company arrangement: Silvia, Re Austcorp Group Ltd (admin apptd) [2009] FCA 636;

•    where the extension will allow sale of the business as a going concern: Re Lombe; Australian Discount Retail Pty Ltd [2009] NSWSC 110; Stewart, Re Kleins Franchising Pty Ltd (admin apptd) [2008] FCA 721; Re Uni-Aire Security Pty Ltd (admin apptd) [2006] FCA 1423;

•    more generally, that additional time is likely to enhance the return for unsecured creditors: Deputy Commissioner of Taxation v Scottsdale Homes No 3 Pty Ltd (No 2) [2009] FCA 190; Re Fitzgerald; Primebroker Securities Ltd (admin apptd) (recs and mgrs apptd) [2008] FCA 1247; Re Vouris; Marrickville Bowling and Recreation Club Ltd [2008] FCA 622.

Those categories are not exhaustive but serve as useful examples. Whether an extension is appropriate will turn on the particular circumstances regarding the particular company.

13    Finally, in this regard, it is also well to recall the observations of Nettle and Gordon JJ (in dissent, but not relevantly in this respect) in Mighty River International Ltd v Hughes (2018) 265 CLR 480; [2018] HCA 38 at [73], which referred to a number of cases including Re Riviera and observed:

… Consistent with the legislative intention of Pt 5.3A that the administration of a company be brought to an end within a short period of time, there is a presumptive expectation that extensions will be brief. But over time the courts have come to recognise that significant extra time may be required, and should be allowed, in complex cases. 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 references omitted]

14    Ultimately, it is necessary to consider the best interests of the creditors as a whole, having regard to the purpose of Pt 5.3A of the Corporations Act.

SHOULD THE EXTENSION BE GRANTED?

15    The second meeting of creditors commenced on 9 June 2026. It has been adjourned. Without the extension sought, the second meeting will need to resume on 11 August 2026. In those circumstances, the Administrators will be required five business days beforehand, on 4 August 2026, to give notice of that resumed meeting and provide creditors with a report. That is by tomorrow. The Administrators seek an extension of that adjournment period until 14 October 2026, which is a further 45 business days (being nine weeks).

16    As is clear from the authorities, it is necessary to consider 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 potentially any return for shareholders. This balancing must be taken in the context of the facts of a particular case and with regard to the particular company(ies) the subject of administration.

17    As explained in the principle set out above, extensions should generally be brief and are not to be granted where doing so undermines the statutory object of a quick and summary consideration of the alternatives. However, greater extension can be appropriate where the matter is complex.

18    The Administrators in this case rely on a detailed affidavit of one of the Administrators, Mr Juratowich. A&S Wholesale and MPF Admin, which form part of a broader corporate group comprising 35 entities (Group) which operate the MarketPlace Fresh business. The Administrators were also appointed joint and several liquidators of 14 of those related entities within the Group. The remaining members of the Group are not subject to external administration.

19    The Group’s business involves retailing and wholesaling fresh produce, sourcing and supplying fruit, vegetables and grocery products, through both wholesale and retail channels. Prior to entering external administration, the Group operated a network of retail stores predominantly located in shopping centres located across metropolitan Melbourne.

20    The Group is structured using a combination of companies, unit trusts, discretionary trusts and a superannuation fund. The Administrators have provided a corporate structure chart of the Group, and from that chart it is fair to observe that the structure is complicated.

21    The Administrators have summarised the circumstances leading up to their appointment as involving the Group’s restructure in 2019, which was to facilitate an expansion of the business. Between 2024 and 2026, approximately 10 non-performing stores were closed. In late April 2026, just prior to the appointment of the Administrators, an Asset Sale Agreement was entered by A&S Wholesale and various other entities within the Group, following which A&S Wholesale ceased trading.

22    The Administrators have identified a significant loan facility with ANZ Bank for approximately $4.5M. There have been attempts to restructure this facility. This facility is secured by real property. A potential Deed of Company Arrangement (DOCA) contemplates terms which would seek to procure the ANZ Bank not claiming in the DOCA and that may enable a return to unsecured creditors.

23    On the appointment of the Administrators the terms of the Asset Sale Agreement were considered, and an amended version re-entered, as the Administrators considered that effectively continuing with that sale was in the best interest of creditors. The sale price has remained unchanged.

24    Based on the books and records, as at the Appointment Date, the Administrators state that:

(a)    A&S Wholesale did not employ any staff;

(b)    MPF Admin employed 187 staff comprising:

(i)    67 full-time employees;

(ii)    71 part-time employees; and

(iii)    49 casual employees.

25    As at the date of the appointment, although all employees’ wages were paid up to date, there are significant employee entitlements outstanding in a total amount of approximately $4.4M excluding redundancy and payments in lieu of notice. These amounts are subject to proper adjudication. Those amounts that are outstanding to employees can be described as follows:

(a)    superannuation totalling approximately $3M;

(b)    accrued annual leave totalling approximately $900,000;

(c)    accrued annual leave loading totalling approximately $70,000; and

(d)    accrued long service leave totalling approximately $380,000.

26    Further, in relation to the employees, an issue has also arisen regarding which entity within the Group is the true employer. This is because employees’ contracts of employment, payslips and insurance documentation were issued in the name of MPF Admin. MPF Admin also met payroll tax, workers’ compensation and other statutory employment obligations. However, A&S Wholesale operated the business day-to-day and had practical control of the employees engaged by MPF Admin. Further, MPF Admin does not appear to have had independent trading revenue, relying on funding from A&S Wholesale and other Group entities to meet its liabilities (True Employer Issue).

27    The Administrators state that resolution of the True Employer Issue is relevant to the estimated return to creditors of the Companies, the structure of any potential DOCA (including the assumption of employee entitlement liabilities as between the Companies), and the Administrators’ ability to finalise investigations and prepare a report to creditors

28    As at the date of the original Assets Sale Agreement, A&S Wholesale, occupied and operated from seven leased premises. Three of those leased premises have been assigned or new agreements have been entered with the purchaser on the Asset Sale Agreement. Four of those leases remain to be dealt with.

29    The Administrators state that an extension of the adjournment of the Second Meeting will offer further voluntary administration protections for A&S Wholesale and landlords while negotiations in respect of these four leases continue.

30    The purpose of the second meeting of creditors, by s 439A, as required by s 439C of the Corporations Act is for the creditors to consider the future of the Companies. At that meeting, the creditors may resolve that the Companies each execute a DOCA, that the administration should come to an end, or that the Companies should be wound up. To assist the creditors to make this decision at the second meeting of creditors, the Administrators must provide a report to creditors.

31    The report that the Administrators are to provide, which is pursuant to s 75-225(3) of the Insolvency Practice Rules, must provide information about each of the Companies’ business, property, affairs and financial circumstances, and set out a statement whether:

(a)    in the opinion of the Administrators, it would be in the interests of creditors for the company to execute a DOCA;

(b)    in the opinion of the Administrators, it would be in the interests of creditors for the administration to end;

(c)    in the opinion of the Administrators, it would be in the interests of creditors for the company to be wound up,

as well as the Administrators’ reasons for that opinion.

32    The Administrators are also required to provide such other information known to them as will enable the creditors to make an informed decision: whether there are any transactions that appear to the Administrators to be voidable transactions in respect of which money, property or other benefits may be recoverable by a liquidator under Pt 5.7B, and, if a DOCA is proposed, the details of that deed.

33    The Administrators wish to explore any proposed DOCA. At this stage, the Administrators have had some discussions and a broad outline of the terms of a potential DOCA has been provided. These include the amended Assets Sale Agreement, a cash contribution and a contribution from various entities in liquidation within the Group, a transfer of employee entitlements (on an assumed basis) and obtaining ANZ Bank’s agreement not to participate in the DOCA.

34    For the Administrators to be able to properly report to creditors ahead of the second meeting and provide their opinion about the matters described above, additional time, as is sought by the application for an extension of the adjourned period for the second meeting is required and appropriate.

35    It is clear that the investigations are not complete. From the corporate structure chart that the Administrators have prepared, the administration is fairly complex and multi-tiered. The matters and issues involved, as deposed to by Mr Juratowitch are relatively complex and include a number of entities in the Group, the True Employer Issue and the multiple strands of the proposed DOCA (which are not yet finalised), amongst other matters. No material prejudice has been identified and creditors were given notice of this application.

36    The Administrators submitted, and I accept, that the extension sought is supported by the following factors:

(a)    the adjournment will maximise the prospects of a DOCA being advanced, which will achieve a superior outcome for creditors, and will allow time to obtain a major secured creditor’s position on any proposed DOCA;

(b)    the practical reality (that regardless of any potential DOCA) the adjournment will likely result in a superior outcome for creditors, (particularly creditors of MPF Admin) and will avoid the amended Asset Sale Agreement from potentially being thwarted, including by preserving the value of assets, particularly the Business;

(c)    the amended Asset Sale Agreement ought be concluded, including the transfer of the balance of the leases;

(d)    the adjournment may improve the outcome for employees;

(e)    the adjournment will allow the Administrators to conclude their investigations and obtain any necessary advice regarding the True Employer Issue; and

(f)    the adjournment will allow the Administrators to conclude their investigations and report comprehensively, as they are required to do to creditors and stakeholders.

CONCLUSION

37    The extension is necessary and appropriate in the circumstances of this matter and in relation to each of the particular Companies. It will enable the Administrators to prepare and provide the report and statements and, in particular, to arrive at the opinion required and referred to in s 438A(4), in order to inform creditors adequately so that they will be in a position to decide whether to terminate the administration, execute any possible DOCA or place the company into liquidation.

Associate:    

Dated:    4 September 2026