In the matter of Parker Logan Property Pty Ltd [2021] NSWSC 792

Judgment

HER HONOUR: This is an application brought by originating process filed in Court on 17 June 2021, on which occasion an interlocutory application was made for an urgent hearing of the application made in the originating process. The application is brought by the plaintiffs who were appointed as joint and several administrators of the defendant company, Parker Logan Property Pty Ltd, on 11 May 2021.
The application is made in order to cure an irregularity which has arisen in the administration of the company, whereby the second meeting of creditors, required to be held under s 439A of the Corporations Act 2001 (Cth) (Corporations Act), was convened after the convening period had ended pursuant to that section. I have relied upon an affidavit sworn on 17 June 2021 by Christian Peter Sprowles, one of the two joint and several administrators of the company, and an affidavit affirmed today by the plaintiffs' solicitor, Michael Mulvenna.
The company's sole director and creditor is Mr Joel Redelman. There is, in evidence, a communication from his solicitor to the effect that he has no objection to the orders here sought by the plaintiffs.

Determination

I am satisfied that the requirements of ss 439A(7) and (8) are met on the present application. I am satisfied that the evidence establishes that the fact that the Report was issued outside the convening period (and therefore that the notice of the second creditors' meeting was outside the convening period) was an oversight on the part of those in the administrators' office. I am satisfied that there will be no prejudice occasioned by an extension of the period of time for the convening period and that it is in the best interests of the creditors that the second meeting of creditors proceed in order for creditors to be able to consider the Deed of Company Arrangement put forward by the director (Mr Redelman) and the administrators' recommendation as to the placement of the company in liquidation.
I am also satisfied, for the reasons that have been put forward by Counsel for the plaintiff, that, in the circumstances, it is appropriate to make the further order (sought under s 447A(1) of the Corporations Act) and, in particular, for an order, for the avoidance of doubt, as to the effect of the operation of Pt 5.3A of the Corporations Act in circumstances where the convening period is here to be extended.
While I consider it is not strictly necessary for there also to be an order pursuant to s 1322(4) of the Corporations Act, extending the convening period, as I am satisfied that it is an alternative basis, I will make the order in alternative terms to include that.
Accordingly, for the above reasons I make the following orders: 1. Order pursuant to s 439A(6) of the Corporations Act, that in respect of the defendant company, the convening period prescribed under s 439A(5) be extended to 15 June 2021. 2. Order pursuant to s 447A(1) of the Corporations Act that part 5.3A of the Act will operate in relation to the company as if the convening period fixed by s 439A(5) of the Act, for a meeting of the company's creditors ended at the end of 15 June 2021. 3. To the extent it may be necessary, order pursuant to s 1322(4) of the Corporations Act, that in respect of the company the convening period prescribed under s 439A(5) of the Act be extended to 15 June 2021. 4. Order pursuant to section 447A of the Corporations Act, that 5.3A of the Act operates in relation to the company in such a way that the administration of the company did not come to an end on 8 June 2021, notwithstanding that the convening period fixed by s 439A(5) ended without a meeting being convened in accordance with s 439A and without an application being made to the Court to extend the convening period under s 439A(6). 5. Note that the costs of bringing this application will be borne by the plaintiffs and will not form part of the costs of the administration of the company. 6. Order that these orders be entered forthwith.

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