New South Wales Supreme Court Transtaff Pty Limited ACN 094 353 090 (in administration) [2005] NSWSC 197 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 22/02/05 JUDGMENT DATE : 22 February 2005 Equity Division JURISDICTION : JUDGMENT OF : Einstein J DECISION : Application granted. CATCHWORDS : Corporations - Company under administration - notices of proposed creditors' meeting advertised for date after that required by section 439A - application for extension of time to hold meeting - application granted - orders under sections 447A and 1322(4) - failure to hold meeting in 439A time period is an irregularity of a technical or formal nature LEGISLATION CITED : Corporations Act Ricon Constructions Pty Limited (in liq) and Corporations Law; In the matter of (1997) 43 NSWLR 174 CASES CITED : Vouris Re; Epromotions Australia Pty Limited v Relectronic - Remech Pty Limited (in liq) (2003) 47 ACSR 155 PARTIES : Transtaff Pty Limited ACN 094 353 090 (in administration) FILE NUMBER(S) : SC 1640/05 COUNSEL : Mr M Dawson (For the administrator Mr P Hillig) SOLICITORS : Watson Mangioni (For the administrator Mr P Hillig LOWER COURT JURISDICTION : IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION Einstein J Tuesday 22 February 2005 ex tempore Revised 7 March 2005 Transtaff Pty Limited ACN 094353090 (in administration) JUDGMENT 1 The application brought by the company under administration presently before the Court arises by reason of the fact that the administrator has failed to comply with Section 439A(2) of the Corporations Act in that the second creditors meeting by that section required to be held on or prior to 23 February 2005. 2 Notices of a proposed meeting to be held on 24 February 2005 have regularly been issued and advertised. The consequence is that the administrator applies for the orders, the subject of the application, on the basis that a one day late second creditors meeting is an irregularity of a technical or formal nature: Santow J In the matter of Ricon Constructions Pty Limited (in liq) and Corporations Law (1997) 43 NSWLR 174 at 178. 3 It is to be noted that in Re Vouris; Epromotions Australia Pty Limited v Relectronic – Remech Pty Limited (in liq) (2003) 47ACSR 155 Campbell J set out the scheme of the relevant legislation and importantly at paragraph 56, p 177 followed Ricon Constructions Pty Limited. 4 In the circumstances I am satisfied that the making of the orders sought is entirely appropriate and comprises the proper exercise of the Court's relevant discretion. 5 It should be noted that according to the report as to affairs provided to the administrator, the only creditors of the company are the directors Mr Easter, Mr Linder and the Deputy Commissioner of Taxation. 6 There is no prejudice shown to any creditor or other party and the authorities to which I have referred and the sections of the Act to which I have referred clearly furnish the Court with power to make the orders which have been made. I certify that paragraphs 1 - 6 are a true copy of the reasons for judgment herein of the Hon. Justice Einstein given on 22 February 2005 revised 7 March 2005 ___________________ Susan Piggott Associate 7 March 2005 17/03/2005 - Date on header page wrong. Changed from 22 March 2005 to the correct date of 22 February 2005 - Paragraph(s) Header Page 17/03/2005 - Hearing date was wrong. Changed from 22 March 2005 to the correct date of 22 February 2005 - Paragraph(s) Header page 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.