Nardell Coal Corporation Pty Ltd [2003] NSWSC 860

Nardell Coal Corporation Pty Ltd [2003] NSWSC 860

Leave under s.436B(2) was appropriate because the liquidators were suitable to act as administrators and deed administrators: the former employment connection with Ferrier Hodgson had ceased about four years earlier, creditors had not opposed their continuing as administrators, they were not shown to be subject to excluding factors, and unconditional funding by Nardell Holdings did not itself compromise their independence. Orders under s.447A varying Part 5.3A were also justified because creditors had already been substantially informed through earlier meetings, including the s.439A meeting and the subsequent liquidation meeting, and the proposed single meeting in the new administration...

Jurisdiction
Australia
Judgment Date
19 September 2003
Procedural Posture
Corporations List Application Concerning Voluntary Administration and Liquidation / Application by Liquidators for Leave to Appoint Themselves as Voluntary Administrators and Deed Administrators, and for Orders Varying Part 5.3 a Meeting Requirements
Outcome
Leave granted for the liquidators to appoint themselves voluntary administrators and to be appointed administrators of any deed of company arrangement; Part 5.3A meeting requirements varied; costs ordered to be an expense in the liquidation.
Legal Topics
['voluntary Administration' 'deed of Company Arrangement' 'liquidators Appointing Themselves Administrators' 'independence of Administrators' "dispensing With Creditors' Meeting" 'variation of Part 5.3 A']
['corporations Law' 'insolvency'] ['voluntary Administration' 'deed of Company Arrangement' 'liquidators Appointing Themselves Administrators' 'independence of Administrators' "dispensing With Creditors' Meeting" 'variation of Part 5.3 A']

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Procedural Posture

Corporations List Application Concerning Voluntary Administration and Liquidation / Application by Liquidators for Leave to Appoint Themselves as Voluntary Administrators and Deed Administrators, and for Orders Varying Part 5.3 a Meeting Requirements

Legal Issues

  1. 1 ['Whether leave should be granted under s.436B(2) of the Corporations Act 2001 (Cth) for the liquidators to appoint themselves as voluntary administrators of the company.' 'Whether leave should be granted for the liquidators to be appointed administrators of any deed of company arrangement entered into by the company.' "Whether the funding of the proposed new administration by Nardell Holdings compromised the liquidators' independence or suitability." 'Whether the operation of Part 5.3A should be varied under s.447A to dispense with the first meeting of creditors under s.436E and allow the s.439A meeting to be convened at the earliest convenient date on the statutory notice.']

Ratio Decidendi

Leave under s.436B(2) was appropriate because the liquidators were suitable to act as administrators and deed administrators: the former employment connection with Ferrier Hodgson had ceased about four years earlier, creditors had not opposed their continuing as administrators, they were not shown to be subject to excluding factors, and unconditional funding by Nardell Holdings did not itself compromise their independence. Orders under s.447A varying Part 5.3A were also justified because creditors had already been substantially informed through earlier meetings, including the s.439A meeting and the subsequent liquidation meeting, and the proposed single meeting in the new administration...

Court Disposition

Leave granted for the liquidators to appoint themselves voluntary administrators and to be appointed administrators of any deed of company arrangement; Part 5.3A meeting requirements varied; costs ordered to be an expense in the liquidation.

Orders

  • ['Order, pursuant to s.436B(2) of the Corporations Act, that leave be granted for the second plaintiffs to appoint themselves as voluntary administrators of the first plaintiff.' 'Order, pursuant to s.436B(2) of the Corporations Act, that leave be granted for the second plaintiffs to be appointed as administrators...