What period should the extension be for?
43 The Administrators sought an extension of the convening period of 6 months up to 31 October 2013. While it is clear that this is an appropriate case for an extension of the convening period having regard to the factors set out above, an extension of 6 months is a long time.
44 The Court's attention was drawn to ABC Learning Centres in which the convening period was extended in total in the order of approximately 18 months (see Re ABC Learning Centres (No 8) [2009] 73 ACSR 478). Extensions for 6 months were granted in Re Chemeq Ltd (Administrators Appointed) (Receivers and Managers Appointed), ex parte McMaster [2007] WASC 154; Re an application by Horne & Vrsecky [2010] VSC 657; Strawbridge (Administrator) v Retail Holdings Pty Ltd (Administrators Appointed), In the Matter of Retail Adventures Holdings Pty Ltd (Administrators Appointed) [2013] FCA 151. In this last case, Jagot J said the following:
[8] This is consistent with the observations of Austin J in Re Riviera Group Pty Ltd (2009) 72 ACSR 352; [2009] NSWSC 585, in which his Honour explained the development of the law against a predisposition not to grant extensions of time, having regard to the need for swift resolution of such matters, in favour of what he described in shorthand as the "balancing test". Austin J identified at [13] a series of circumstances or categories in which courts have granted extensions of time, one of which is particularly relevant in the current matter, namely, whether the extension will allow sale of the business as a going concern. At [16] his Honour identified the nature of the balancing exercise in question, saying that:
If the approach is to balance the expectation of speedy administration against the risk of prejudice, there cannot be any predisposition in favour of speedy administration for that would skew the balancing process. Rather, the cases suggest that where the administrator proves a substantial ground in any of the categories set out and there is no specific evidence of prejudice, an extension commensurate with the administrator's task will be granted, notwithstanding that the explanatory memorandum suggested that extensions would not be granted frequently.
[9] This approach is also consistent with the statement to which my attention was drawn of Shepparton J, Commissioner of Taxation v Comcorp (1996) 70 FCR 356, in particular, at [364], where his Honour referred to the objects including:
…maximisation of the chances of the company or its business continuing in existence, or, if that not be possible, better returns for creditors and members than would result from the immediate winding up of the company…
45 In Re Riviera Group Pty Ltd, Austin J also said that the longer the extension that is sought, the more important it is for the Court to be given a clear and complete explanation of the state of the administration, the grounds for the extension and any potential prejudice that would flow from granting it: at [18].
46 While it is true that the discretion to be exercised by the Court should not have a predisposition in favour of speedy administration that would skew the balancing process, the issue of the extent to which the Court should maintain a supervisory role remains relevant to the period for which any extension requires consideration. This is so notwithstanding that there are a slowly growing number of precedents for extensions in the order of 6 months. An alternative approach was used in Hayes, in the matter of Estate Property Group Limited (Administrators Appointed) [2007] FCA 935 in which the Court granted an extension of one month with leave for reconsideration of a further period.
47 The Court should consider the appropriateness of the length of the extension sought, having regard to the availability under s 447A of the Act of further extensions in appropriate cases, so that the Court is in a position to monitor the manner in which the administration and any associated receivership is being conducted. Relevant considerations might include:
(a) The extension should be for no longer than is required for a diligent exercise of the powers of the administrators and where relevant, as here, the receivers and managers. While successive applications to the Court involve cost, there are also fees incurred by administrators, receivers and managers which mount up over time and these are unnecessary expenses if the administrators or receivers and managers are not diligent. While it is true that, as here, it is possible for creditors to approach the Court during the period of the extension, the occasion of an application for an extension provides a forum for the creditors to have their voices heard, for example, in the subsequent applications in the case of ABC Learning: see Re ABC Learning Centres (No 8) (2009) 73 ACSR 478.
(b) It is undesirable for claims which are subject to a moratorium to be extant any longer than necessary.
(c) Where the primary asset of the business is goodwill, an overly protracted administration is unsettling to staff who may leave for more certain employment, diminishing the value of the business of the company in administration.
(d) Unnecessary delay in prosecuting an administration exposes the assets of the company to market risk.
(e) The longer the administration and the receivership, the greater potential there is for the interests of the secured creditor and the unsecured creditors to diverge, to the detriment of the unsecured creditors.
(f) It was the intention of the legislature that administrations be conducted expeditiously: Explanatory Memorandum to the Corporate Law Reform Bill 1992 (Cth) at [507], as mentioned by Austin J in Re Riviera Group Pty Ltd at [9].
48 In this case, I was satisfied that both the Administrators and the Receivers have acted diligently to date. The fact that there are 136 non-binding offers for the 20 Businesses conducted across 4 States, with a requirement for contracts to be negotiated, due diligence conducted and multiple lessor and regulatory approvals obtained indicate that an extension of 6 months is justified. In addition the plaintiff has sought an order, which I will make, which permits the second meeting of creditors to be held earlier where that is achievable.
49 There is one last issue. Although the evidence provided by Mr Moodie and Mr Tracy was very extensive and generally addressed all relevant factors, I had some concern over the nature of the evidence dealing with communications with creditors.
50 Mr Moodie's affidavit attached draft minutes of the first creditors meeting but no evidence was provided as to how many creditors attended. Further, his affidavit indicated that even though the creditors who attended the meeting had been told of the potential for an application to extend the convening period for a period of 2 to 3 months, the Receiver who had attended the meeting told Mr Moodie immediately after it that in fact a period of 6 months would be required. It was not clear from file notes of telephone conversations with some creditors which occurred after 5 April that they had been told that the period would be 6 months, although Mr Moodie's affidavit suggested that they had been told. Mr Tracy gave evidence that the first creditors meeting had been regarded as the Administrators' meeting and that it was not appropriate to raise in that venue the Receivers' view that an extension of 6 months would be required at a time when the view had not been communicated to the Administrators. I accept Mr Tracy's evidence and that there was no intention to mislead or deceive creditors. However I consider it would have been more appropriate for this issue to have been discussed by the Administrators and the Receivers before the first creditors meeting so that the Administrators were in a position to advise creditors properly. I note also that a circular was sent to all creditors on 22 April 2013 advising of the 6 months extension proposal.
51 Mr Moodie has undertaken to advise creditors of the orders made today and in any event the Administrators have indicated no opposition to an order requiring that notification by 5 pm on 1 May 2013. In addition the orders expressly provide leave for any interested person, including any creditor of the Companies, to make an application to vary or discharge these orders upon 48 hours notice to the plaintiffs. This adequately addresses my concerns on the notice to creditors issue.
52 Accordingly I am satisfied that it is appropriate, having regard to the objects of Part 5.3A, for the convening period to be extended to 31 October 2013 and to make the other orders sought.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.