Edward Gem Pty Ltd, in the matter of ACN 005 973 688 Pty Ltd (ACN 005 973 688) (In liq) [2005] FCA 74

Edward Gem Pty Ltd, in the matter of ACN 005 973 688 Pty Ltd (ACN 005 973 688) (In liq) [2005] FCA 74

The Court had power under s 447A(1) to order that s 444B(2)(a) operate in relation to the company as if the 21-day period were 22 days, notwithstanding that the company had entered voluntary liquidation after failing to execute the Deed on time. The order operated prospectively, there was no evidence of accrued rights that would be adversely affected, and liquidation was not a discretionary bar. The extension meant the Deed was validly executed and the liquidation should be terminated to avoid doubt.

Jurisdiction
Australia
Judgment Date
16 February 2005
Procedural Posture
Application Under S 447 A(1) of the Corporations Act 2001 (cth) Concerning a Deed of Company Arrangement and Liquidation / Final Hearing and Orders
Outcome
Orders made extending the statutory time for execution of the Deed of Company Arrangement and terminating the liquidation; no costs order made.
Legal Topics
['voluntary Administration' 'deed of Company Arrangement' 'liquidation' 'court Power Under S 447 A' 'extension of Statutory Time for Execution of Deed']
['corporations Law' 'insolvency Law'] ['voluntary Administration' 'deed of Company Arrangement' 'liquidation' 'court Power Under S 447 A' 'extension of Statutory Time for Execution of Deed']

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Procedural Posture

Application Under S 447 A(1) of the Corporations Act 2001 (cth) Concerning a Deed of Company Arrangement and Liquidation / Final Hearing and Orders

Legal Issues

  1. 1 ['Whether the Court had power under s 447A(1) of the Corporations Act 2001 (Cth) to make an order altering the time within which the Deed of Company Arrangement was required to be executed after the company had gone into liquidation.' "Whether the company's liquidation constituted a discretionary obstacle to making an order under s 447A(1)."]

Ratio Decidendi

The Court had power under s 447A(1) to order that s 444B(2)(a) operate in relation to the company as if the 21-day period were 22 days, notwithstanding that the company had entered voluntary liquidation after failing to execute the Deed on time. The order operated prospectively, there was no evidence of accrued rights that would be adversely affected, and liquidation was not a discretionary bar. The extension meant the Deed was validly executed and the liquidation should be terminated to avoid doubt.

Court Disposition

Orders made extending the statutory time for execution of the Deed of Company Arrangement and terminating the liquidation; no costs order made.

Orders

  • ["Pursuant to s 447A(1) of the Corporations Act 2001 that s 444B(2)(a) of the Corporations Act 2001 (Cth) is to operate in relation to ACN 005 973 688 Pty Ltd as if the reference to '21 days' in the subsection was a reference to '22 days'." 'The liquidation of the company be terminated as from the making of this...