RE BAYVIEW HEALTH - MATILDA BAY PHARMACY PTY LTD (ADMINISTRATORS APPOINTED) AND BAYVIEW HEALTH NORTH SHORE PHARMACY PTY LTD (ADMINISTRATORS APPOINTED); EX PARTE ANDREW MICHAEL SMITH AND ROBERT ALLAN JACOBS [2025] WASC 404 (30 September 2025)

(a) a meeting may be adjourned from 'time to time and from place to place', by resolution or by the person presiding at the meeting (r 75‑140(1)); and

(b) a meeting convened under s 439A 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 (r 75‑140(3)).

1. On 15 August 2025, the Administrators issued a supplementary report to creditors and gave notice that the second meeting of creditors would be reconvened at 2.00 pm tomorrow, 22 August 2025. The plaintiffs now seek to postpone at the second meeting of creditors of the Companies until 2.00 pm on 4 September 2025.
2. In support of the application, the plaintiffs rely on three affidavits of Mr Smith, filed 21 August 2025, as well as an affidavit of service of Eimear McNamara, filed 21 August 2025.
3. I have also had the benefit of written submissions from the plaintiffs, as well as oral submissions from counsel who appeared before me this morning on behalf of the plaintiffs, as well as the interested party.
4. The plaintiffs filed a certificate of urgency certifying that the application was of such an urgent nature that it was required to be listed 'at the next available opportunity' and, on that basis, it was listed before me at midday today.
5. I am satisfied from the evidence before me, namely the affidavit of Ms McNamara, that the interlocutory process has been served on shareholders, directors, and creditors of the Companies.
6. The application was initially opposed by Mr McGregor and Ms Godfrey, two of the directors of the third and fourth plaintiffs, who filed an affidavit of Stephen James Kikiros on 21 August 2025. In the course of submissions, this position was amended. Given the exchanges that took place with counsel who appeared on behalf of Mr McGregor and Ms Godfrey, the application is no longer opposed.

Should the orders sought in the interlocutory process be made?

1. Section 447A of the Act gives the court power to make orders that modify the maximum period prescribed by r 75‑140(3) for the adjournment of a meeting of creditors convened under s 439A.[1] The modification can be made even where the relevant meeting has already been held.[2]
2. In exercising the broad discretion conferred by s 447A(1), the court has regard to all of the circumstances of the case that have been brought to the court's attention by the applicant for relief and by those who have an interest in the matter and who may be affected by the granting of relief.[3]
3. While the court's power under s 447A is broad, it is not unlimited.[4] The power vested in the court by s 447A is a statutory power that can only be exercised for the purpose for which it has been granted. For this reason, any order that is made under s 447A must have a nexus with the objects of pt 5.3A of the Act and how pt 5.3A is to operate in relation to a particular company.[5]
4. Where the court is persuaded that the prospects of a better outcome for creditors will be improved by a potentially longer period of administration, ordinarily, the court will grant an extension.[6]
5. In the circumstances of this matter, I am satisfied on the basis of the evidence before the court and taking account of the submissions made by counsel, that it is appropriate to make orders postponing the creditors meetings for eight business days.
6. Mr Smith's evidence, which I accept, is that the administrators have received two competing deed of company arrangement (DOCA) proposals in respect of the Companies. The second proposal was only received yesterday, 20 August 2025. The administrators' preliminary review of the second DOCA proposal is that it may be comparable or superior to the first proposal.[7]
7. In these circumstances, the administrators seek to postpone the Creditors' Meetings to enable a report to creditors to be prepared on the competing DOCA proposals that contains a considered recommendation to creditors. If deemed appropriate, this will enable the creditors to vote on the proposal recommended by the administrators at the postponed Creditors' Meetings.[8]
8. Having regard to all of the circumstances of this case, I am satisfied that the orders sought by the plaintiffs give creditors the best prospect of a return and that the purpose for which the modification of the Insolvency Practice Rules is sought is consistent with the objects of pt 5.3A of the Act. In this regard, I particularly take note of the submissions made by Mr Zappia, who appeared on behalf of the plaintiffs of the public interest issue that is raised, including whether there is funding to consider courses of action against the related parties.

1. On this basis, it is my view that it is appropriate to make orders broadly in terms of the plaintiffs' interlocutory process, save in respect of order 5, which I consider should be reduced to the shorter period of two business days.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Bailey, in the matter of Megacrane Holdings Pty Ltd (admin appt) [2022] FCA 733; see, eg, Georges, in the matter of Vical NSW Pty Ltd (admin appt) [2018] FCA 1974 [25] ‑ [27].

[2] Griffiths, in the matter of Armorgalv (Aust) Pty Ltd (admin appt) [2023] FCA 752; Bailey, in the matter of Megacrane Holdings Pty Ltd (admin appt); Robert Michael Kirman and Robert Conry Bauer in their capacity as joint and several voluntary administrators of Tiger Resources Ltd (admin appt) [2021] WASC 93.

[3] Calabretta v Redpen Developments Pty Ltd (in liq) [2010] FCA 81; (2010) 183 FCR 47 [37].

[4] Correa v Whittingham [2013] NSWCA 263; (2013) 278 FLR 310 [2] ‑ [8], [97] ‑ [105], [304], citing Honest Remark Pty Ltd v Allstate Explorations NL [2006] NSWSC 735; (2006) 234 ALR 765 and Re New Tel Ltd [2004] FCA 1154; (2004) 210 ALR 270 [3].

[5] Honest Remark Pty Ltd v Allstate Explorations NL [66].

[6] See ABC Learning Centres Ltd, in the matter of ABC Learning Centres Ltd; application by Walker (No 5) [2008] FCA 1947 [8], albeit in the context of an application to extend the time for convening the meeting under s 439A.

[7] Third affidavit of Andrew Micheal Smith filed 21 August 2025 [24] - [25]; Second affidavit of Andrew Micheal Smith filed 21 August 2025 [9] - [12].

[8] Second affidavit of Andrew Micheal Smith filed 21 August 2025 [13].