GE Commercial Corporation (Australia) Pty Limited v Jayrow Helicopters Pty Limited

REASONS FOR JUDGMENT 1 This is an application pursuant to s 266(4) of the Corporations Act 2001 (Cth) (the Act) for an order that the period for lodging a charge dated 19 July 2006 granted by the defendants Jayrow Helicopters Pty Limited and Lennox Management and Investments Pty Limited to the plaintiffs GE Commercial Corporation (Australia) Pty Limited and GE Commercial Australasia Pty Limited with the Australian Securities and Investments Commission (ASIC) be extended to 18 September 2006. 2 Notification of the charge was required to have been lodged with ASIC by 2 September 2006 (s 263(1) of the Act). I am satisfied that the failure to lodge the notice was accidental or due to inadvertence. Although the obligation to lodge the notice lay with the defendants, the arrangements between the parties contemplated that the plaintiffs' solicitors would be responsible for lodgement. 3 Neither defendant is under any form of external administration nor is there any evidence that any such external administration is in contemplation. I am satisfied that each of the defendants is solvent and that regularisation of the position should not prejudice the position of creditors. The defendants consent to the extension. 4 In these circumstances it is appropriate to exercise the discretion to make the orders sought (ING Bank NV Re Airport West Pty Ltd (2005) 54 ACSR 8;[2005] FCA 686). 5 There is an issue as to the costs of the defendants of this application. The solicitor for the defendants points to the fact that the application was necessary because of an error by the solicitor for the plaintiffs and that the defendants were a necessary party to the application. On the other hand, as pointed out on behalf of the plaintiffs, the responsibility of lodgement was with the defendants and they could have, and should have, checked on compliance. All in all, it seems to me that the question of costs should be left to be sorted out between the parties. There will be no order as to costs. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.