Allban & Sons Pty Ltd (Administrator Appointed)

HIS HONOUR : This is an application made by a company in administration under s 447A, alternatively s 1322, of the Corporations Act 2001 (Cth) (“the CA”). The order asked for is in effect a dispensation with the requirement of s 439A(3)(b) of the CA to cause a second creditors’ meeting of a company in administration to be advertised. It seems to me that I shall not need to resort to the provisions of s 1322; this is an order that can be made under the principles discussed in Australasian Memory Pty Ltd v Brien (2000) 200 CLR 270.

The facts in this case are that the administrator has made a report, the company is hopelessly insolvent and has been so since well back into 2001. The administrator’s recommendation is that it be resolved that the company be placed in liquidation. If that resolution is not passed at this meeting, there is still a winding up application outstanding. Unfortunately, however, in the meantime the administration would come to an end and the control of the company pass back to a sole director who is himself an insolvent under administration. The only disadvantage of the dispensation sought is that the advertisement will not have been published in the usual course. However, about 15 creditors of the company were present at the first creditors’ meeting and a larger number of the creditors of the company have been circulated with the administrator’s report and notice of this meeting.

Under the circumstances it seems to me that, although some other interested person might attend as a result of an advertisement, there has been substantial notification of the meeting to interested persons. I could, of course, extend the time within which the meeting might be convened, so that it could be adjourned and an advertisement published. However, in the circumstances I have set out, there seems little point in this and it would cause further monies to be expended to that little point.

In the circumstances, at approximately 2.30 pm today, I have made the order which was sought, the meeting having been notified to commence at 2 pm.