New South Wales Supreme Court CITATION : Abruzzi Sports Club Ltd (Administrator Apptd) [2003] NSWSC 1182 HEARING DATE(S) : 27 November 2003 JUDGMENT DATE : 27 November 2003 JURISDICTION: Equity JUDGMENT OF : Hamilton J DECISION : Convening period for creditors' meeting extended. Order that meeting may be held earlier than during the five day period immediately after the convening period. CATCHWORDS : CORPORATIONS [176] - Voluntary administration - Jurisdiction and powers of Court - General power to make orders - Power to make such order as it thinks appropriate - Order that meeting may be held earlier than during the five day period immediately after the convening period - CORPORATIONS [180] - Voluntary administration - Creditors' meeting - Application to extend time to convene - Relevant considerations - Meeting date falling between Christmas and New Year. LEGISLATION CITED : Corporations Act 2001 (Cth) ss 439A(6) & 447A CASES CITED : Australasian Memory Pty Ltd v Brien (2000) 200 CLR 270 Re Daiseytek Australia Pty Ltd (2003) 45 ACSR 446 PARTIES : Antony de Vries (P1) Riad Tayeh (P2) FILE NUMBER(S) : SC 5986/03 COUNSEL : P Fordyce, Solicitor (Ps) SOLICITORS : Morgan Lewis Alter (Ps) - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION HAMILTON J THURSDAY, 27 NOVEMBER 2003 5986/03 ABRUZZI SPORTS CLUB LIMITED (ADMINISTRATOR APPOINTED) - APPLICATION OF ANTONY DE VRIES AND RIAD TAYEH JUDGMENT 1 HIS HONOUR: This is an application under ss 439A(6) and 447A of the Corporations Act 2001 (Cth) ("the CA"). The company under administration is cash poor but asset rich in that it owns a piece of land worth some $7.5 million, which is in excess of the amount necessary to pay all its debts. The convening period under s 439A of the CA expires next Monday, 1 December 2003. The administrators have been unable to gather all the material necessary to formulate a proper proposal for the disposal of the whole or part of the property to meet the company's debts. That is understandable in light of the nature and value of the property. It is important that it be disposed of to best advantage. The situation is complicated by the existence of possible options other than outright sale, including subdivision of the land, the retention of part for the Club's purposes, and the disposal of the rest to pay its debts. 2 Christmas is approaching. It would be best if consideration of the proposal formulated did not fall to be given in the immediate Christmas/New Year period. The extension for a period of time of the convening period, namely, to 1 March 2004 is asked for, but the comparatively long period sought is ameliorated by the second part of the application. The second part of the application is that I make an order under s 447A of the CA permitting the meeting to be held, not in the five days after the expiry of the extended convening period, which the terms of the statute would otherwise compel, but to be brought forward and held earlier, if a scheme for consideration is formulated and can be considered at an earlier point of time. The powers under s 447A are very wide: see Australasian Memory Pty Ltd v Brien (2000) 200 CLR 270. Furthermore, the section has been used in exactly the way now proposed by Lindgren J in the Federal Court in Re Daiseytek Australia Pty Ltd (2003) 45 ACSR 446. 3 The position of the secured creditor has been protected by agreement with the administrators that the secured creditor, a bank holding a mortgage over the property, should continue at liberty to appoint a receiver if so advised. In the circumstances I am persuaded that both applications should be granted, and I shall make orders accordingly. ********** Last Modified: 03/19/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.