Gympie Gold Ltd (Administrators Appointed) (Receivers & Managers Appointed) [2004] NSWSC 11

New South Wales Supreme Court

CITATION : Gympie Gold Ltd (Administrators Appointed) (Receivers & Managers Appointed) [2004] NSWSC 11 HEARING DATE(S) : 22 January 2004 JUDGMENT DATE : 22 January 2004 JURISDICTION: Equity JUDGMENT OF : Hamilton J DECISION : Time for convening of second creditors' meeting in voluntary administration extended for five months.

CATCHWORDS : CORPORATIONS [180] - Voluntary administration - Creditors' meeting - Application to extend time to convene - Relevant considerations - Extension for lengthy period. LEGISLATION CITED : Corporations Act 2001 (Cth) s 439A(6) AFG Insurances Ltd (Voluntary Administrators Appt'd) [2002] NSWSC 803 Cawthorn v Keira Constructions Pty Ltd (1994) 33 NSWLR 607 CASES CITED : Herbert v Exuma Pty Ltd (Administrators Appt'd) [2003] WASC 167 Mann v Abruzzi Sports Club Ltd (1994) 12 ACSR 611 Port Kennedy Resorts Pty Ltd (2001) 19 ACLC 328 PARTIES : Murray Campbell Smith (P1) Joseph David Hayes (P2) FILE NUMBER(S) : SC 1171/04 COUNSEL : C D Wood (Ps) SOLICITORS : Minter Ellison (Ps)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

THURSDAY, 22 JANUARY 2004

1171/04 GYMPIE GOLD LIMITED (Administrators Appointed) (Receivers and Managers Appointed) & Other Companies JUDGMENT 1 HIS HONOUR: The plaintiffs are the administrators of the abovenamed company and 11 other related companies. The administration arises from a disastrous situation created by a fire in a colliery near Cessnock operated by Southland Mining Ltd (Administrators Appointed) (Receivers and Managers Appointed), one of the 11 other companies. Investigations as to the cause of the fire have been impeded by the hazardous environment at the Southland mine. The investigations are still at a preliminary stage and it is unclear whether mining will be able to recommence or whether the mine must be permanently sealed. The situation as to any insurance claim in respect of the fire remains uncertain in this state of affairs. 2 The application is for the extension by the Court under s 439A(6) of the Corporations Act 2001 (Cth) ("the CA") of the convening period for the second meeting of creditors in respect of all 12 companies. The only unusual feature of the application is that extension is sought for an unusually long period, namely, until 26 May 2004, some four months hence. There is a reluctance in the courts to extend the convening period for a time so lengthy: see the decision of the Supreme Court of Western Australia in Herbert v Exuma Pty Ltd (Administrators Appt'd) [2003] WASC 167 at [11] ff. But there Barker J did grant a lengthy extension of 120 days. In Port Kennedy Resorts Pty Ltd (2001) 19 ACLC 328 Owen J in the Supreme Court of Western Australia permitted a 90 day extension, noting that there were "unusual circumstances at work"; see also Mann v Abruzzi Sports Club Ltd (1994) 12 ACSR 611. In this Court in Re AFG Insurances Ltd (Voluntary Administrators Appt'd) [2002] NSWSC 803 Barrett J granted a five month extension where his Honour deemed the circumstances appropriate. In Cawthorn v Keira Constructions Pty Ltd (1994) 33 NSWLR 607 in this Court, Young J (as his Honour then was) made an order (in that case under s 447A of the CA) which had the substantive effect of allowing the second meeting to be held five months after the first meeting. 3 The circumstances of this case are also unusual. Fires in collieries are, in Australia, fortunately rare. Furthermore, the situation remains unclear as to whether the colliery will be able to reopen and resume its position as a valuable asset or whether the bulk of its value will be destroyed by safety considerations necessitating its permanent sealing. In all the circumstances of this case it seems to me that the long extension sought is appropriate. The committee of creditors and the two principal secured creditors, Hong Kong Shanghai Banking Corporation and Fortis Bank, support the application. 4 I grant leave to the plaintiff to file originating process. I make orders in accordance with the short minutes initialled by me and to be placed with the papers. **********