Mighty River International v Hughes

Judgment (3 paragraphs)

[1]

Pursuant to s 439A(6) of the Corporations Act 2001 (Cth) (Act) the convening period within which the First Plaintiffs must convene the second meeting of creditors of the Second to Tenth Plaintiffs (Companies) under s 439A of the Act (Second Meeting) be extended to 14 May 2025.
Pursuant to s 447A(1) of the Act, Part 5.3A of the Act is to operate such that the Second Meeting may be held at any time during, or within five business days after the end of the convening period as extended by Order 1 above notwithstanding the provisions of s 439A(2) of the Act.
The First Plaintiffs, within seven business days of the making these orders, are to take all reasonable steps to give notice of the orders to the creditors of the Companies by means of a circular: (a) to be sent by email transmission to creditors for whom the First Plaintiffs have a current email address; or (b) to be sent by ordinary post to creditors for whom the First Plaintiffs have only a postal address.
Pursuant to s 447A(1) of the Act, Part 5.3A of the Act is to operate such that the requirement on the First Plaintiffs to issue notices under ss 75-225(1) and 75-15 of the Insolvency Practice Rules (Corporations) 2016 (Cth) (IPR) be modified such that notice of the Second Meeting will be validly given to any creditors by, not less than five business days prior to the date of the proposed meeting: (a) giving such notice electronically by email sent to the email address of any creditor (including persons claiming to be creditors) of the Companies for whom or which the First Plaintiffs hold an email address; (b) sending such notice to the postal address or facsimile number, or otherwise as provided for by the Act or the IPR, to any creditors not being a creditor referred to in sub-paragraph (a); and (c) causing such notice to be published in The Insolvency Notices website located at: .

SHARIFF J: 1 This was an application brought by the joint and several administrators of Procuret Holding Pty Ltd (Administrators) and eight other related entities to which the Administrators were appointed on 16 January 2025 (Companies). 2 Pursuant to sub-ss 439A(1), (2) and (5) of the Corporations Act 2001 (Cth) (Act), the Administrators were required to convene second meetings of creditors of the Companies by 14 February 2025 and to hold such meetings by no later than 21 February 2025. The Administrators sought orders pursuant to s 439A(6) of the Act to extend the convening periods for the second creditors' meetings for a period of three months to 14 May 2025, and ancillary and consequential orders (including a "Daiseytek" order: see Re Daisytek Australia Pty Ltd (Administrators Appointed) [2003] FCA 575; (2003) 45 ACSR 446 at [10]-[14] (Lindgren J)). In support of the application, the Administrators read an affidavit of Andrew James McEvoy (one of the Administrators) sworn 11 February 2025 (McEvoy Affidavit). 3 The principal reason for the application was to allow sufficient time for the Administrators to facilitate and conclude a sale process which is presently on foot. It was submitted that granting the present application would maximise the chances of a positive outcome for creditors through this sale process. 4 I recently set out the principles relevant to an application of this kind in Colley, Re PF Group Holdings Pty Ltd (Admins Apptd) [2024] FCA 792 at [25]-[27] (citing, inter alia, the High Court in Mighty River International v Hughes [2018] HCA 38; (2018) 265 CLR 480 at [72]-[73] (Nettle and Gordon JJ)). It is unnecessary to repeat those principles here. 5 In the present case, I was satisfied that the application should be allowed and made orders reflecting that position on 12 February 2025. My reasons for so ordering are as follows. 6 First, the evidence before me indicated that within a week of their appointment, the Administrators published an advertisement seeking expressions of interest (EOIs) for a proposed sale of the business. By Friday 7 February 2025, the Administrators had received EOIs from 19 parties, seven of whom then executed NDAs and paid non-refundable deposits to access the virtual data room and commence due diligence. Having received those EOIs, the Administrators have now put in place an indicative timetable to advance the sale process. 7 Second, I have received evidence from an experienced insolvency practitioner, Mr McEvoy, that the EOIs that have been received to date from third parties are of substance and, if further discussions are permitted to take place, may result in a better outcome for creditors. 8 Third, the known creditors of the Companies had been notified of and did not object to the application. The Companies' primary secured creditor is aware of and consented to the application. 9 Fourth, the evidence indicates that the Administrators will not be in a position to make a comprehensive and complete recommendation to creditors as to the future of the Companies in the absence of the sale process completing. Allowing the extension will enable the Administrators to fulfill their role in making the necessary recommendations. 10 Balancing all of these considerations, I was satisfied that the application should be granted and ordered accordingly. I was also satisfied that the ancillary and consequential orders sought were appropriate and made these orders. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Shariff.

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