Whittingham, in the matter of the Spanish Club Ltd [2009] FCA 1158

FEDERAL COURT OF AUSTRALIA

Whittingham, in the matter of the Spanish Club Ltd [2009] FCA 1158

CORPORATIONS – deed of company arrangement (DOCA) – DOCA obliged DOCA administrator to cause company to convene general meeting of members for the purpose of their electing a new board of directors – s 249H(1) of Corporations Act 2001 (Cth) (the Act) required that at least 21 days' notice be given of a meeting of a company's members – company's constitution required that members have at least until 21 days before annual general meeting (AGM) to nominate persons for election as directors at AGM – s 444G of the Act (within Pt 5.3A) made DOCA binding on DOCA administrator – DOCA administrator could not comply with both s 249H(1) and s 444G and DOCA in so far as DOCA incorporated, by reference, company's constitution and its requirement touching AGMs. Held: order made under s 447A of the Act providing for closing of nominations earlier than 21 days before date fixed for AGM. Corporations Act 2001 (Cth) ss 249H, 444G, 447A, 447D IN THE MATTER OF THE SPANISH CLUB LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 001 059 187) ON THE APPLICATION OF KENNETH MICHAEL WHITTINGHAM

NSD 1080/2009

LINDGREN J

19 OCTOBER 2009

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION NSD 1080 of 2009

IN THE MATTER OF THE SPANISH CLUB LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 001 059 187) On the application of KENNETH MICHAEL WHITTINGHAM

Plaintiff

JUDGE: LINDGREN J

DATE OF ORDER: 29 September 2009

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. Part 5.3A of the Corporations Act 2001 (the Act) operate in relation to The Spanish Club Ltd (Subject to Deed of Company Arrangement) (the Company) so that the binding effect of the Deed of Company Arrangement dated 16 March 2009 as varied by a Deed of Variation dated 23 September 2009 between the plaintiff and the Company (then under administration) be modified in the following respects and to the extent necessary to achieve the following results: (a) The plaintiff request the Australian Electoral Commission (AEC) to convene the Annual General Meeting of the members of the Company for the purpose of their electing a new board of directors; (b) the Annual General Meeting be held on 13 November 2009; (c) the last date and time for receipt of nominations be 19 October 2009 at 12.00 noon; (d) the Annual General Meeting be convened by notices sent to members no later than 21 October 2009.