New South Wales Supreme Court CITATION : Cook Cove Pty Ltd (Administrators Appointed); Boyd Cook Cove Finance Corporation Pty Ltd (Administrators Appointed); Applications of [2009] NSWSC 498 HEARING DATE(S) : 5 May 2009 JURISDICTION : Equity Division Corporations List JUDGMENT OF : Brereton J EX TEMPORE JUDGMENT DATE : 5 May 2009 DECISION : Application to extend convening period granted CATCHWORDS : CORPORATIONS - Application for order extending convening period for second meeting of creditors, pursuant to s 439A(6) of the (CTH) Corporations Act 2001 - where key stakeholders consent to extension of time - where factors requiring administrators to proceed expeditiously are not significant - where return for creditors and public interest favour extension sought LEGISLATION CITED : (CTH) Corporations Act 2001 s 439A(6) CATEGORY : Procedural and other rulings CASES CITED : Lombe v Australian Discount Retail Pty Limited [2009] NSWSC 110 Cook Cove Pty Ltd (Administrators Appointed) (first plaintiff) PARTIES : Boyd Cook Cove Finance Corporation Pty Ltd (Administrators Appointed) (second plaintiff) Stephen James Parbery, Mark Julian Robinson & Brett Stephen Lord in their capacity as joint & several administrators of Cook Cove Pty Ltd (Administrators Appointed) & Boyd Cook Cove Finance Corporation Pty Ltd (Administrators Appointed) (third plaintiff) FILE NUMBER(S) : SC 2651/09 COUNSEL : JW Stevenson SC w Ms C Spruce (plaintiffs) SOLICITORS : Henry Davis York (plaintiffs) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION CORPORATIONS LIST BRERETON J Tuesday 5 May 2009 2651/09 Applications of Cook Cove Pty Limited (Administrators Appointed); Boyd Cook Cove Finance Corporation Pty Limited (Administrators Appointed) JUDGMENT (ex tempore) 1 HIS HONOUR: The third plaintiffs, who are the voluntary administrators of first plaintiff Cook Cove and the second plaintiff Boyd Cook Cove, seek an order pursuant to Corporations Act, s 439A(6), extending the convening period for the second meeting of creditors to 19 August 2009, a period of 100 days over the 25 days allowed under s 439A unless the Court grants an extension. 2 In summarising the numerous authorities in this field, Barrett J recently said in Lombe v Australian Discount Retail Pty Limited [2009] NSWSC 110 (at [16]) that the general expectation is that the time limits ordinarily applicable are expected to prevail, and that the court will not allow them to be departed from unless good cause is shown; and that any such good cause must promote the objects of Part 5.3A, as stated in s 435A – namely, to maximise the chances of the company or as much as possible of its business continuing in existence or, if continuation is not possible, to achieve a better return for creditors and members than would result from an immediate winding-up. His Honour went on to observe that these objects must be weighed against the expectation that voluntary administration would be a reasonably speedy affair, particularly as various persons interested in the company are subjected to enforced inaction in pursuit of self-help and other remedies while the administration continues. 3 It is clear that the affairs of the corporations are complex, and that an understanding of their affairs and an appreciation of their future prospects sufficient to make a sensible and reasonable recommendation to creditors in respect of any Deed of Company Arrangement or otherwise would require examination of extensive documentation in relation to the very substantial projects in which they are engaged, and extensive finance documentation. Propounding any Deed of Company Arrangement will require extensive negotiations with a number of major stakeholders in the proposed development. 4 The administrators foreshadowed the probable need for an extension of three months at the first creditor's meeting, and no objection was then raised by or on behalf of any creditor or other participant. The corporations are not trading and do not have employees; accordingly, there is no commercial risk of significance, nor detriment to third parties, occasioned by granting an extension. In those circumstances, the emphasis given in this area to the policy of the Act of requiring administrations to proceed expeditiously, in order to minimise the time during which creditors and others are excluded by statute from enforcing their rights, need not loom large in the Court's consideration. On the other hand, prospects of a sensible recommendation being made to creditors, and of some better return for them being achieved, and of the public interest in this development being conserved, will be facilitated by the extension sought. 5 All the key stakeholders, as they have been called in the evidence, consent to the proposed extension. These include the secured creditors. 6 Upon the undertaking of John David Evans to pay the appropriate filing fees, I grant leave to the plaintiffs to file an originating process in the form initialled by me, dated this day and placed with the papers. I direct that the originating process be returnable instanter. I dispense with service of the originating process. 7 I amend the document entitled "Order" to read "Draft Order", and in paragraph 2 by deleting, in the fourth and fifth lines, the words "or within five business days before". I make orders 1, 2, 3, and 4 in the Draft Order as so amended, initialled by me, dated this day and placed with the papers. I direct that the exhibits be returned. I direct that these orders be entered forthwith. ********** 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.