FEDERAL COURT OF AUSTRALIA GE Commercial Corporation (Australia) Pty Limited v Jayrow Helicopters Pty Limited [2007] FCA 427 GE COMMERCIAL CORPORATION (AUSTRALIA) PTY LIMITED ABN 28 000 974 747 AND GE COMMERCIAL AUSTRALASIA PTY LIMITED ABN 98 096 876 292 v JAYROW HELICOPTERS PTY LIMITED ABN 27 005 001 598 AND LENNOX MANAGEMENT AND INVESTMENTS PTY LIMITED ABN 71 004 392 250 NSD 57 OF 2007 GYLES J 26 March 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 57 of 2007 BETWEEN: GE COMMERCIAL CORPORATION (AUSTRALIA) PTY LIMITED ABN 28 000 974 747 First Plaintiff GE COMMERCIAL AUSTRALASIA PTY LIMITED ABN 98 096 876 292 Second Plaintiff AND: JAYROW HELICOPTERS PTY LIMITED ABN 27 005 001 598 First Defendant LENNOX MANAGEMENT AND INVESTMENTS PTY LIMITED ABN 71 004 392 250 Second Defendant JUDGE: GYLES J DATE OF ORDER: 23 March 2007 WHERE MADE: SYDNEY THE COURT ORDERS THAT: The period for lodging a charge dated 19 July 2006 granted by the defendants to the plaintiffs with the Australian Securities and Investments Commission be extended to 18 September 2006. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 57 of 2007 BETWEEN: GE COMMERCIAL CORPORATION (AUSTRALIA) PTY LIMITED ABN 28 000 974 747 First Plaintiff GE COMMERCIAL AUSTRALASIA PTY LIMITED ABN 98 096 876 292 Second Plaintiff AND: JAYROW HELICOPTERS PTY LIMITED ABN 27 005 001 598 First Defendant LENNOX MANAGEMENT AND INVESTMENTS PTY LIMITED ABN 71 004 392 250 Second Defendant JUDGE: GYLES J DATE: 26 March 2007 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an application pursuant to s 266(4) of the Corporations Act 2001 (Cth) (the Act) for an order that the period for lodging a charge dated 19 July 2006 granted by the defendants Jayrow Helicopters Pty Limited and Lennox Management and Investments Pty Limited to the plaintiffs GE Commercial Corporation (Australia) Pty Limited and GE Commercial Australasia Pty Limited with the Australian Securities and Investments Commission (ASIC) be extended to 18 September 2006. 2 Notification of the charge was required to have been lodged with ASIC by 2 September 2006 (s 263(1) of the Act). I am satisfied that the failure to lodge the notice was accidental or due to inadvertence. Although the obligation to lodge the notice lay with the defendants, the arrangements between the parties contemplated that the plaintiffs' solicitors would be responsible for lodgement. 3 Neither defendant is under any form of external administration nor is there any evidence that any such external administration is in contemplation. I am satisfied that each of the defendants is solvent and that regularisation of the position should not prejudice the position of creditors. The defendants consent to the extension. 4 In these circumstances it is appropriate to exercise the discretion to make the orders sought (ING Bank NV Re Airport West Pty Ltd (2005) 54 ACSR 8;[2005] FCA 686). 5 There is an issue as to the costs of the defendants of this application. The solicitor for the defendants points to the fact that the application was necessary because of an error by the solicitor for the plaintiffs and that the defendants were a necessary party to the application. On the other hand, as pointed out on behalf of the plaintiffs, the responsibility of lodgement was with the defendants and they could have, and should have, checked on compliance. All in all, it seems to me that the question of costs should be left to be sorted out between the parties. There will be no order as to costs. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 26 March 2007 Solicitor for the Plaintiffs: Ms Z Endrey-Walder (23 February 2007) Mr N Reeves (15 March 2007) of Mallesons Stephen Jaques Solicitor for the Defendants: Mr M Gray-Spencer (23 February 2007) Mr P Farrell (15 March 2007) of Riley Gray-Spencer Lawyers acting on behalf of Richard Burn & Associates Dates of Hearing: 23 February and 15 March 2007 Date of Order: 23 March 2007 Date of Reasons: 26 March 2007