MYT ENGINEERING PTY LTD and ORS v MULCON PTY LTD [No 2] [1997] NSWCA 215

MYT ENGINEERING PTY LTD and ORS v MULCON PTY LTD [No 2] SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY JA 4 December 1997

[1997] NSWCA 215 Handley JA

REASONS

The Court published its reasons for judgment and by majority pronounced orders dismissing this appeal on 6 August 1997. The majority, Powell JA and myself, held that the Deed of Arrangement between the company and its creditors had not been executed by the company within 21 days of the resolution of the meeting of creditors as required by s444B(2) of the Corporations Law, and the Court should not make a validating order under s445G. Powell JA also held that the power of the Court under s447A to "make-such order as it thinks appropriate about how this Part is to operate in relation to a particular company" only authorised the making of orders to operate in the future. Dunford AJA reached the opposite conclusion and would have made a validating order under that section, holding that the trial Judge's exercise of discretion against making such an order had miscarried. I expressed no view on these issues.

The appellant filed an application for special leave to appeal to the High Court, and by notice of motion dated 26 September, applied for the hearing of the appeal to be reopened on the s447A issues. The evident purpose of the motion was to obtain my reasons for refusing the appellant relief under s447A. This did not require the participation of the other members of the Court, and counsel agreed that I could deliver supplementary reasons without hearing further argument from the parties. I agreed to this course.

The proper scope of the power conferred by s447A is a matter of importance in the operation of Pt5.3A of the Corporations Law dealing with the voluntary administration of corporations. In Cawthorn v Keira Constructions Pty Ltd (1994) 33 NSWLR 607, Young J held that the section authorised the making of an order having retrospective effect. Such orders have also been made in other cases.