In the matter of Premier Energy Resources Pty Ltd [2023] NSWSC 1185

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Premier Energy Resources Pty Ltd [2023] NSWSC 1185 Hearing dates: 28 September 2023 Date of orders: 28 September 2023 Decision date: 05 October 2023 Jurisdiction: Equity - Corporations List Before: Williams J Decision: Application for orders under s 447A of the Corporations Act 2001 (Cth) validating the appointment of an administrator dismissed Catchwords: CORPORATIONS — Voluntary administration — Administrators — Where one director of company forged signature of second director on a letter of resignation as director, before purportedly resolving as sole director to appoint a voluntary administrator pursuant to s 436A of the Corporations Act 2001 (Cth) — Where appointment documents provided to administrator included director's forged letter of resignation — Where administrator on notice of the forgery allegation from approximately one week after his purported appointment — Where administrator maintained that he relied on the documents and considered that his appointment was valid — Where no evidence that administrator had made any inquiries about the forgery allegation before coming to that view — Where administrator proceeded to advertise company's asset for sale and deal with shareholders and creditors of the company in his capacity as administrator — Where administrator declined to make any application to the Court to determine the validity of, or to validate, his appointment — Where administrator ultimately applied to the Court almost three months after his appointment seeking orders validating his appointment — Where validation of appointment would give the imprimatur of the Court to the forgery and the subsequent conduct of the administrator, and would deprive shareholders in dispute of the right to engage in procedure agreed between them in a Shareholder Deed to resolve deadlock between directors, which would be likely to affect future of the company — Where risk of insolvency, but no real risk of company incurring further debts except to existing related party creditors who may, depending on the outcome of the deadlock procedure, choose to fund the company with full knowledge of its financial position and circumstances. Legislation Cited: Corporations Act 2001 (Cth), ss 435A, 436A, 440D, 447A, 459P, 461(1)(k), 1322(4), 1322(4)(b), pt 5.3A Insolvency Practice Rules (Corporations) 2016 (Cth), ss 75-140(1)(b), 75-140(3) Cases Cited: Ansett Australia Ground Staff Superannuation Plan Pty Ltd v Ansett Australia Ltd (2004) 49 ACSR 1; [2004] FCA 130 Darin re Palamedia Limited [2010] NSWSC 451 Frisken, in the matter of NPH Group Pty Ltd (in liq) [2021] FCA 1155 Hayes v Doran [No 2] [2012] WASC 486 (S) Hutton, in the matter of Big Village Australia Pty Ltd (Administrators Appointed) [2023] FCA 48 In the matter of AMJ Transport NSW Pty Ltd (in liquidation) ACN 164 981 837 [2019] NSWSC 818 In the matter of Foodora Australia Pty Ltd (Administrators Appointed) [2018] NSWSC 1426 In the matter of Robust Construction Services Pty Ltd (in liquidation) and Robust Construction Services 2 Pty Ltd (in liquidation) [2023] NSWSC 1156 Re Keneally (as administrator of Australian Blue Mountain International Cultural & Tourist Group Pty Ltd (admin apptd)) (2015) 107 ACSR 172; [2015] NSWSC 937 Re Wood Parsons Pty Ltd (in liq) (2002) 43 ACSR 257; (2002) 21 ACLC 111; [2002] NSWSC 1058 Singleton v 24 Hr Cranes Pty Ltd [2003] NSWSC 1156 Wilson v Manna Hill Mining Co Pty Ltd (2004) ACSR 404; [2004] FCA 1663 Texts Cited: N/A Category: Principal judgment Parties: Simon John Thorn in his capacity as administrator of Premier Energy Resources Pty Ltd (Administrator Appointed) ACN 646 696 317 (Plaintiff) Earth Technics Pty Ltd ACN 002 406 797 (First Defendant) Bobstan Investments Pty Ltd ACN 161 737 097 (Second Defendant) Gregory Nominees Pty Ltd ACN 646 649 676 (Third Defendant) Aussie Rehabilitation Services Pty Ltd ACN 658 652 870 (Fourth Defendant) Representation: Counsel: Mr S Sykes (Plaintiff)