Yates, in the matter of G Retail Ltd (Administrator Appointed) [2006] FCA 370

Yates, in the matter of G Retail Ltd (Administrator Appointed) [2006] FCA 370

The written notices posted to creditors no later than 27 February 2006 were given at least five business days before the 6 March 2006 meeting because notice under s 439A(3)(a) is given when put in the post. Although the newspaper publication requirement in s 439A(3)(b) was not strictly complied with, the defect was procedural, the administrators acted honestly, it was just and equitable to make curative orders, and no substantial injustice had been or was likely to be caused. Orders under s 1322(4) and s 447A were therefore appropriate.

Jurisdiction
Australia
Judgment Date
23 March 2006
Procedural Posture
Application by Administrators for Orders Under S 1322(4) and S 447 A(1) of the Corporations Act 2001 (cth) / First Instance Application; Orders Made on 23 March 2006
Outcome
Application granted; curative and modifying orders made.
Legal Topics
['voluntary Administration' 'second Meeting of Creditors' 'notice to Creditors' 'publication of Notice' 'curative Orders' 'operation of Part 5.3 a of the Corporations Act 2001 (cth)']
['corporations Law' 'insolvency Law'] ['voluntary Administration' 'second Meeting of Creditors' 'notice to Creditors' 'publication of Notice' 'curative Orders' 'operation of Part 5.3 a of the Corporations Act 2001 (cth)']

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Procedural Posture

Application by Administrators for Orders Under S 1322(4) and S 447 A(1) of the Corporations Act 2001 (cth) / First Instance Application; Orders Made on 23 March 2006

Legal Issues

  1. 1 ['Whether written notice of the second meeting of creditors was given at least five business days before the meeting for the purposes of s 439A(3)(a) of the Corporations Act 2001 (Cth).' 'Whether the failure to publish notice of the meeting in a national newspaper at least five business days before the meeting invalidated the meeting.' 'Whether orders should be made under s 1322(4) and s 447A of the Corporations Act 2001 (Cth) to cure or address defects in notice.']

Ratio Decidendi

The written notices posted to creditors no later than 27 February 2006 were given at least five business days before the 6 March 2006 meeting because notice under s 439A(3)(a) is given when put in the post. Although the newspaper publication requirement in s 439A(3)(b) was not strictly complied with, the defect was procedural, the administrators acted honestly, it was just and equitable to make curative orders, and no substantial injustice had been or was likely to be caused. Orders under s 1322(4) and s 447A were therefore appropriate.

Court Disposition

Application granted; curative and modifying orders made.

Orders

  • ['An order be made under s 1322(4) of the Corporations Act 2001 (Cth), to the effect that the meeting of creditors of each of the companies held on 6 March 2006 was not invalid by reason of any defect in the giving of notice in respect of the meetings in accordance with s 439A(3) of the Act.' 'An order be made under...