AUSTRALASIAN MEMORY PTY LTD and ANOR v BRIEN and ANOR [1997] NSWCA 31

AUSTRALASIAN MEMORY PTY LTD and ANOR v BRIEN and ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER JA 30 September 1997

[1997] NSWCA 31

Sheller JA Australasian Memory Pty Ltd and Mr Barry Charles Amor have appealed from a decision of Santow J given on 10 and 19 September 1997. The appellants now apply by notice of motion to have the hearing of the appeal expedited, and to have the orders and declarations made by Santow J stayed pending the delivery of Judgment of the Court of Appeal in the appeal.

The history of these proceedings is found conveniently in the affidavit of Mr Vohralik sworn on 23 September 1997. Mr Vohralik is the partner in the firm of Gillis Delaney Brown who has the conduct of this matter on behalf of the appellants.

On 18 February 1997 the respondents to the appeal, Richard Campbell Brien and Steve Nicols, were appointed joint administrators of Australasian Memory Pty Ltd pursuant to a resolution of Mr Amor and other directors of that company under s436A of the Corporations Law. The first meeting of creditors under s436E of the Corporations Law was held on 21 February 1997.

The second meeting of creditors, purportedly pursuant to s439A, was convened by notice dated 24 February to be held on 3 March 1997. The meeting began on that day. After discussion the creditors purportedly resolved that that meeting be adjourned to a date no later than three weeks thereafter.

By further notices a further meeting of creditors was convened on 24 March 1997 and held on that day. At that meeting the creditors of Australasian Memory Pty Ltd purportedly resolved that it be wound up and that the respondents become liquidators of the company.

In May 1997 the respondents caused the company to issue two creditors' statutory demands under s459E, to be served on companies known as Supervac Australia Pty Ltd and Australian Gold Pty Ltd. In response to those statutory demands, an application was filed by Supervac and Australian Gold in proceedings in the Federal Court of Australia.