In the matter of Mediacloud Pty Ltd [2021] NSWSC 357

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Mediacloud Pty Ltd [2021] NSWSC 357 Hearing dates: 6 April 2021 Date of orders: 6 April 2021 Decision date: 09 April 2021 Jurisdiction: Equity Before: Ward CJ in Eq Decision: Orders as per schedule attached Catchwords: CORPORATIONS – Voluntary administration – Deed of company arrangement Legislation Cited: Corporations Act 2001 (Cth), ss 435, 436, 439, 444, 446, 447, 491, 494, Pt 5.3A, Sch 2 Insolvency Practice Schedule (Corporations), s 90-15 Insolvency Practice Rules (Corporations) 2016 (Cth), s 75-225 Cases Cited: Dickerson, in the matter of McWilliam's Wines Group Ltd (subject to Deed of Company Arrangement) (No 4) [2021] FCA 139 Re Eastmark Holdings Pty Ltd (2015) 109 ASCR 116; [2015] NSWSC 1437 Re Kruger Engineering Pty Ltd (2006) 60 ASCR 191; [2006] NSWSC 1063 Category: Principal judgment Parties: Barry Frederic Kogan & Jonathan Philip Henry in their capacity as joint and several administrators of Mediacloud Pty Ltd (First Plaintiffs/First Applicants) Mediacloud Pty Ltd (Administrators Appointed) Second Plaintiff/Second Applicant) Representation: Counsel: D Krochmalik (Plaintiffs/Applicants)

Solicitors: Maddocks Lawyers File Number(s): 2020/00343032 Publication restriction: Nil

Ex Tempore Judgment 1. HER HONOUR: This is an application brought by interlocutory process, dated 1 April 2021, brought by the administrators appointed to Mediacloud Pty Ltd (Mediacloud). The application is made under s 447A of the Corporations Act 2001 (Cth) and s 90-15 of the Insolvency Practice Schedule (Corporations), being Sch 2 to the Corporations Act. 2. In support of the application the applicants have read three affidavits sworn by one of the joint and several administrators, Barry Frederic Kogan, the most recent being an affidavit sworn 1 April 2021 and the earlier affidavits being sworn on 14 December 2020 and before that on 2 December 2020. Also read on this application is an affidavit sworn 6 April 2021 by Heather Matheson, a director of McGrathNicol employed by Mr Kogan, deposing in effect to notices given to ASIC and to the creditors in relation to the proposed application. 3. The application seeks orders to the effect that: 1. if the company does not execute a Deed of Company Arrangement (DOCA) within fifteen days from the date on which the second meeting of creditors of the company was held, then notwithstanding s 446A (1)(b) of the Corporations Act, the company is not taken to be wound up but is to continue under administration until the earlier of 11 June 2021 and 15 business days after a further meeting of creditors that is proposed to be convened and which may be treated as constituting a meeting of creditors under s 439A of the Corporations Act; and 2. the time required for the administrators to convene that further proposed meeting of the company's creditors be abridged from 10 business days' notice to five business days' notice. 1. In essence, what the administrators seek by the present application is to avoid the deemed winding up provisions in Pt 5.3A of the Corporations Act in circumstances where there is a difficulty that has arisen after the holding of the second creditors' meeting in which the creditors had resolved unanimously to enter into a proposed deed of company arrangement (DOCA). 2. The background to the present application is set out in the affidavit evidence read on the present application.