Malanos [2007] NSWSC 865

New South Wales Supreme Court

CITATION : Malanos [2007] NSWSC 865

HEARING DATE(S) : 19 July 2007 JUDGMENT OF : Hammerschlag J

EX TEMPORE JUDGMENT DATE : 19 July 2007

CATCHWORDS : CORPORATIONS – Application under s 447A of the Corporations Act 2001 (Cth) for a modified application of s 443A(1)(a) to enable administrator to incur obligations without personal liability to facilitate company's business to continue as a going concern so as to benefit creditors

LEGISLATION CITED : Corporations Act 2001 (Cth)

Re Ansett Australia Limited (all admin apptd) and Mentha (As Administrator) (2001) 40 ACSR 389 CASES CITED : Re Spyglass Management Group Pty Limited (2004) 51 ACSR 432 Sims; Re Huon Corporation Pty Ltd (admins apptd) (2006) 58 ACSR 620

PARTIES : Nicholas Craig Malanos (in his capacity as administrator of Lanmac Contracting Pty Limited (Administrator Appointed) ACN 093 622 005

FILE NUMBER(S) : SC 3708/2007

COUNSEL : A.P.P. Lo Surdo (Plaintiff)

SOLICITORS : Kemp Strang (Plaintiff)

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HAMMERSCHLAG J

19 JULY 2007

3708/2007 NICHOLAS CRAIG MALANOS (IN HIS CAPACITY AS ADMINISTRATOR OF LANMAC CONTRACTING PTY LTD (ADMINISTRATOR APPOINTED) ACN 093 622 005 EX TEMPORE JUDGMENT 1 HIS HONOUR: This is an application by the Administrator of Lanmac Contracting Pty Limited (Administrator Appointed) ("the Company") under section 447A of the Corporations Act (Cth) 2001 ('the Act") for an order that Pt 5.3A of the Act is to operate in relation to the Company as if section 443A(1)(a) provides that: (a) Advances and other financial accommodation to be made by James Richard Clouten to the Plaintiff in his capacity as Administrator of the Company in accordance with aFunding Deed ("Deed"), are debts incurred by the Administrator in the performance and exercise of his function and powers as Administrator for services rendered. (b) Notwithstanding order 1(a), if the property of the Company is insufficient to meet the debt the subject of the Deed after payment of all other liabilities for which the plaintiff as Administrator may be personally liable under section 443A of the Act, then the Plaintiff shall not be personally liable under section 443A of the Act to James Richard Clouten in his capacity as funder pursuant to the Deed, to the extent of that insufficiency. 2 The circumstances giving rise to the application and the desirability of the orders sought are dealt with in some detail in the affidavit of Mr Malanos, sworn 19 July 2007, and a series of documents which are exhibited to it. Essentially, and to put it in brief terms, the Administrator is of the view that it is in the interests of creditors that he obtain funding to allow the Company to complete and obtain the benefits of certain contracts which it has, without which the contracts would not be completed, and which would more than likely be terminated by the counter parties.