Commonwealth of Australia v Ermayne Pty Limited [1995] FCA 1203 [Note: This is a draft judgment]

DRAFT JUDGMENT a | FEDERAL COURT OF AUSTRALIA

Matter Nos SG 3149 and SG 3159 of 1995

By O'LOUGHLIN J

COMMONWEALTH OF AUSTRALIA and ERMAYNE PTY

LIMITED

HIS HONOUR: Thank you. The applicant in these proceedings seeks to review the whole of the decision of Deputy Registrar Fisher given on 3 August 1995. The proceedings before the Deputy Registrar were commenced by the applicant by notice of motion dated 2 August 1995 wherein the applicant sought the appointment of a provisional liquidator of the respondent, Ermayne Pty Ltd. The application was heard before the Deputy Registrar on the morning of 3 August when, after hearing

submissions from the relevant parties, he dismissed the application.

The relevant facts are within a short compass and can be shortly stated.

The company was placed under administration pursuant to section 436A of the Corporations Law on 7 July 1995 and a Mr Frier was appointed administrator of the company at a meeting of creditors on 14 July. On 26 July 1995 Mr Frier gave notice to creditors of a meeting to be held pursuant to section 439A on 3 August 1995 at 2.30 pm, that is in the afternoon of the day in which the Deputy Registrar had heard and

dismissed the applicant's application. GREE >

What was before the Registrar and what is before me, is the question of the sufficiency or insufficiency of the material disseminated by Mr Frier to the

creditors. To explain that it is necessary to have some regard to the

comhenj 17.8.95 1

1S

legislation. Section 439A relates to the obligation on the part of the administrator to convene a meeting of creditors and to inform creditors. Subsection 1 states that the administrator of a company under administration must convene a meeting of the company's creditors within the convening period, as that term is defined in subsection 5 or within the period as extended under subsection 6 of section 439A. Section 439A(3)