Silvia v Fea Carbon Pty Ltd (ACN 009 505 195) (Administrators Appointed) (Receivers and Managers Appointed) [2010] FCA 515

Silvia v Fea Carbon Pty Ltd (ACN 009 505 195) (Administrators Appointed) (Receivers and Managers Appointed) [2010] FCA 515

The administrators are entitled to an extension of time until 31 May 2010 to serve notice under s 443B(3) and to avoid personal liability for rent, as the statutory grace period is insufficient given the volume and complexity of documents and lack of records. Mere service of a notice under s 443B(3) does not, without more, constitute repudiation of the lease.

Parties
First Plaintiff: Brian Silvia, Peter Krejci and Mathew Muldoon in their capacity as Administrators of FEA Carbon Pty Ltd (ACN 009 505 195) (Administrators Appointed) (Receivers and Managers Appointed), Forest Enterprises Australia Ltd (ACN 009 553 548) (Administrators Appointed) (Receivers and Managers Appointed), Tasmanian Plantation Pty Ltd (ACN 009 560 463) (Administrators Appointed) (Controllers Appointed) and FEA Plantations Ltd (ACN 055 969 429) (Administrators Appointed); Second Plaintiff: FEA Plantations Ltd (ACN 055 969 429) (Administrators Appointed); First Defendant: FEA Carbon Pty Ltd (ACN 009 505 195) (Administrators Appointed) (Receivers and Managers Appointed); Second Defendant: Forest Enterprises Australia Ltd (ACN 009 553 548) (Administrators Appointed) (Receivers and Managers Appointed); Third Defendant: Tasmanian Plantation Pty Ltd (ACN 009 560 463) (Controllers Appointed)
Jurisdiction
Australia
Judgment Date
30 April 2010
Procedural Posture
Corporations Matter / Application for Extension of Time During Administration
Outcome
Relief granted: extension of time for administrators to avoid liability and serve notice; costs awarded against plaintiffs.
Legal Topics
Voluntary Administration, Administrator's Liability for Rent, Extension of Time Under Corporations Act S 443 B, Effect of Notice Under S 443 B(3) on Lease Repudiation
Corporations Voluntary Administration Administrator's Liability for Rent Extension of Time Under Corporations Act S 443 B Effect of Notice Under S 443 B(3) on Lease Repudiation

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Parties

Brian Silvia, Peter Krejci and Mathew Muldoon in their capacity as Administrators of FEA Carbon Pty Ltd (ACN 009 505 195) (Administrators Appointed) (Receivers and Managers Appointed), Forest Enterprises Australia Ltd (ACN 009 553 548) (Administrators Appointed) (Receivers and Managers Appointed), Tasmanian Plantation Pty Ltd (ACN 009 560 463) (Administrators Appointed) (Controllers Appointed) and FEA Plantations Ltd (ACN 055 969 429) (Administrators Appointed)

First Plaintiff

FEA Plantations Ltd (ACN 055 969 429) (Administrators Appointed)

Second Plaintiff

FEA Carbon Pty Ltd (ACN 009 505 195) (Administrators Appointed) (Receivers and Managers Appointed)

First Defendant

Forest Enterprises Australia Ltd (ACN 009 553 548) (Administrators Appointed) (Receivers and Managers Appointed)

Second Defendant

Tasmanian Plantation Pty Ltd (ACN 009 560 463) (Controllers Appointed)

Third Defendant

Procedural Posture

Corporations Matter / Application for Extension of Time During Administration

Legal Issues

  1. 1 Whether an extension of time for administrators' liability for rent and for service of notice under s 443B(3) should be granted
  2. 2 Whether mere service of notice under s 443B(3) constitutes repudiation of lease

Ratio Decidendi

The administrators are entitled to an extension of time until 31 May 2010 to serve notice under s 443B(3) and to avoid personal liability for rent, as the statutory grace period is insufficient given the volume and complexity of documents and lack of records. Mere service of a notice under s 443B(3) does not, without more, constitute repudiation of the lease.

Court Disposition

Relief granted: extension of time for administrators to avoid liability and serve notice; costs awarded against plaintiffs.

Orders

  • Amend title to substitute 'Brian Silvia' for 'Brian Silva'.
  • Part 5.3A of the Corporations Act 2001 (Cth) to operate in relation to Forest Enterprises Australia Ltd and FEA Plantations Ltd as if s 443B(2)(a) applies after 31 May 2010.