Mansfield, in the matter of Fresh For Life.....Pty Ltd (administrators appointed) [2024] FCA 1048

Judgment (5 paragraphs)

[1]

Subject to Order 2, pursuant to ss 37AF(1) of the Federal Court of Australia Act 1976 (Cth) and on the ground that this order is necessary to prevent prejudice to the proper administration of justice: (a) the documents identified as "Confidential Exhibit DM-2" in the affidavit of David Ian Mansfield sworn on 30 August 2024; and (b) the paragraph number 6 of pages 16 and 21 of the affidavit of Thomas Karle affirmed on 4 September 2024, (collectively, the Documents) be marked "Confidential" on the Court's file and not be published, disclosed or accessed by any person until 19 November 2024, except pursuant to an order of the Court.
Order 1 above: (a) is to take effect throughout the Commonwealth of Australia; and (b) does not prevent the first plaintiffs, the first plaintiffs' legal representatives or the first plaintiffs' servants, agents or employees, from disclosing, publishing or accessing the Documents and the information contained therein.
Pursuant to s 447A(1) of the Corporations Act 2001 (Cth) (Corporations Act), Pt 5.3A of the Corporations Act is to operate in relation to the second plaintiff as if: (a) s 75-140(3) of the Insolvency Practice Rules (Corporations) 2016 (Cth) (IPR(C)) omitted the words "that is more than 45 business days after the first day on which the original meeting was held" and, in lieu thereof, included the words "later than 19 November 2024"; (b) Pt 5.3A of the Corporations Act allowed adjournment of the meeting convened under s 439A of the Corporations Act in relation to the second plaintiff to a day not later than 19 November 2024, notwithstanding the operation of s 75-140(3) of the IPR(C); and (c) the requirement to hold a meeting of creditors of the second plaintiff within the convening period specified in s 439A(2) of the Corporations Act is satisfied by holding the adjourned meeting no later than 19 November 2024, and provided that the requirements of s 75-140 of the IPR(C) are otherwise complied with in respect of such meeting.

Background 4 The company previously operated four "Oporto" franchises in the Western Sydney area at two locations in Merrylands (the Merrylands Road Oporto and the Stockland Oporto), Plumpton (the Plumpton Oporto) and Stanhope Gardens (the Stanhope Oporto). Oporto (Franchising) Pty Ltd (Oporto) was the franchisor. The franchises were operated from leased premises. The Stanhope Oporto was sold in 2019. 5 On 9 April 2024, Oporto terminated the (then) three existing franchises. However, a related entity of Oporto, Oporto Leasing Pty Ltd (Oporto Leasing), entered into licence arrangements with the company which permitted the Stockland Oporto and the Plumpton Oporto to continue trading. No arrangements were entered into in respect of the continued operation of the Merrylands Road Oporto, and that franchise ceased trading on about 9 April 2024. 6 Between 16 April 2024 and around 5 June 2024, the company conducted negotiations with Oporto with a view to selling the business of the Plumpton Oporto and the stock and other assets of the Stockland Oporto. Those negotiations came to an end on (around) 5 June 2024 as a result of the two directors of the company being issued with Director Penalty Notices by the Australian Taxation Office. Shortly thereafter, the administrators were appointed to their current role. 7 Following that appointment, the administrators sought to re-engage with Oporto with a view to selling the business and assets of the company. The administrators considered that the company would obtain a higher sale price if the business and assets were sold as part of an operating Oporto franchise. However, for this to be done, Oporto's assistance, as franchisor, was required. 8 Correspondence passed between the administrators and Oporto on this matter. By 11 July 2024 at 12.28 pm, Oporto had indicated its preparedness to enter into arrangements which would enable the administrators to proceed with the intended sale. (At the present time, the proposed sale of the company's business relevantly contemplates the sale of the business, stock, and assets of the Stockland Oporto and the Plumpton Oporto.) 9 Later on 11 July 2024, the administrators received a draft deed from Oporto, which was a revised draft of a deed previously negotiated with the company (the Revised Proposed Deed) in respect of the proposed sale. However, by that time, the administrators' second report to creditors was due to be issued the following day (12 July 2024) and the administrators did not have sufficient time to review the draft document and seek legal advice on it. For that reason, the administrators considered that it was necessary to exercise the power under s 75-140(1)(b) of the IPR(C) to adjourn the second meeting of creditors for up to 45 business days. 10 In the second report to creditors, the administrators informed the creditors that a proposal for a deed of company arrangement had not been received. They recorded their recommendation that the company be wound up and placed in liquidation, but indicated that the proposed sale process in relation to the company was ongoing and that it was intended that the second meeting of creditors would be adjourned. 11 At the meeting on 19 July 2024, the creditors passed a resolution to "support and authorise the administrators to apply to the Court for any necessary extension of the administration with respect to the sale of the company's business and/or the determination of the company's future". 12 The administrators wish to extend the time for the resumption of the second meeting of creditors because the proposed sale of the company's business and assets is complex due to the type of business conducted under the franchise arrangements and the consequent need to involve a number of parties in the proposed negotiations, including Oporto as franchisor, the directors of the company, and the landlords of the premises from which the company's business operates. 13 The administrators have expressed the view, through Mr Mansfield, that deferring the resumption of the second meeting of creditors to 19 November 2024, should allow sufficient time for them to progress and finalise negotiations with the necessary parties and to complete the sale process. By doing so, the administrators expect that this will provide the opportunity for a better return to the unsecured creditors. The administrators have, however, left open the possibility that it may be necessary for them to approach the Court to further extend the period for resuming the second meeting. 14 The administrators are not aware of any material prejudice that would be suffered by the company's creditors if the resumption of the second meeting were to be deferred. Oporto has agreed to maintain the existing licence arrangements with respect to the Stockland Oporto and the Plumpton Oporto. As I have said, on 19 July 2024 the creditors passed a resolution of support in respect of extending the administration. 15 On 3 September 2024, a circular was sent to creditors advising that an application would be made to the Court on 5 September 2024 seeking to extend the administration. Although the period of notice was necessarily short, the administrators have not received any objection to the Court granting the relief they seek.

Consideration 16 Section 75-140 of the IPR(C) relevantly provides: 75‑140 Adjournment of meetings (1) A meeting may be adjourned from time to time and from place to place: (a) by resolution; or (b) by the person presiding at the meeting. (2) The meeting must not be adjourned to a day that is more than 15 business days after the first day on which the original meeting was held. (3) Despite subsection (2), a meeting convened under section 439A of the Act must not be adjourned to a day that is more than 45 business days after the first day on which the original meeting was held. … 17 The power under s 447A of the Corporations Act extends to modifying the maximum period of an adjournment prescribed by s 75-140(3) of the IPR(C) of a meeting of creditors convened under s 439A: Georges, in the matter of Vical NSW Pty Ltd (Administrators Appointed) [2018] FCA 1974 at [25] - [27]; Bailey, in the matter of Megacrane Holdings Pty Ltd (administrator appointed) [2022] FCA 733 at [17]; Re Wellfully Ltd (administrators appointed) [2023] WASC 458 at [20]. 18 I accept that this is an appropriate case for granting the relief that the administrators seek, and orders will be made accordingly. On the evidence before me, I accept that time will be needed to complete the negotiations to which Mr Mansfield has deposed. The administrators' assessment is that a better outcome is likely for the unsecured creditors if the sale in contemplation can be completed. I have no reason to doubt that expression of opinion. I also place considerable weight on the views of the creditors, who support the administration being extended to achieve a sale of the company's business and assets. 19 The evidence includes documents referred to in Mr Mansfield's affidavit as "Confidential Exhibit DM-2". The plaintiffs seek an order under s 37AF(1) of the Federal Court of Australia Act 1976 (Cth) that these documents not be published, disclosed, or accessed by any person until 19 November 2024, except pursuant to an order of the Court. The same order is sought in relation to the paragraph numbered "6" on pages 16 and 21 of Mr Karle's affidavit. 20 I am satisfied that this order is appropriate given that the documents and information in question contain valuations and other commercially sensitive information which, if disclosed, may adversely affect the ability of the administrators to obtain the best value for the company's business and assets for the benefit of the creditors. The order that the administrators seek is of limited duration and allows for the possibility that the Court can permit earlier disclosure on sufficient grounds being established.

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Judgment (5 paragraphs)

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