In the matter of Creative Memories Australia Pty Ltd (Administrators Appointed) [2013] NSWSC 652

In the matter of Creative Memories Australia Pty Ltd (Administrators Appointed) [2013] NSWSC 652

Because there was at least doubt about whether the administrators' appointment was defective due to the absence of a locally resident director, and the evidence showed that the administration and continued trading arrangements made it appropriate to remove that doubt promptly, Pt 5.3A should operate so that the 30 April 2013 resolution appointing the applicants as joint and several administrators is valid notwithstanding the absence of a locally resident director.

Jurisdiction
Australia
Judgment Date
13 May 2013
Procedural Posture
Application Under S 447 A(1) of the Corporations Act 2001 (cth) Concerning Appointment of Administrators / Interlocutory Process Filed With Leave; Ex Tempore Judgment
Outcome
Order made under s 447A(1) declaring the appointment of the applicants as joint and several administrators valid.
Legal Topics
['voluntary Administration' 'validity of Appointment of Administrators' 'resident Director Requirement' 'court Power to Make Orders About Operation of Pt 5.3 A']
['corporations Law' 'insolvency Law'] ['voluntary Administration' 'validity of Appointment of Administrators' 'resident Director Requirement' 'court Power to Make Orders About Operation of Pt 5.3 A']

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Procedural Posture

Application Under S 447 A(1) of the Corporations Act 2001 (cth) Concerning Appointment of Administrators / Interlocutory Process Filed With Leave; Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether the appointment of the applicants as joint and several administrators under s 436A(1) was invalid or doubtful because the resolution appointing them was passed by two directors who did not ordinarily reside in Australia after the local director resigned.' 'Whether the Court should make an order under s 447A(1) of the Corporations Act 2001 (Cth) validating the appointment or dispelling doubt about it.']

Ratio Decidendi

Because there was at least doubt about whether the administrators' appointment was defective due to the absence of a locally resident director, and the evidence showed that the administration and continued trading arrangements made it appropriate to remove that doubt promptly, Pt 5.3A should operate so that the 30 April 2013 resolution appointing the applicants as joint and several administrators is valid notwithstanding the absence of a locally resident director.

Court Disposition

Order made under s 447A(1) declaring the appointment of the applicants as joint and several administrators valid.

Orders

  • ['Pursuant to s 447A(1) of the Corporations Act 2001 (Cth), Pt 5.3A of the Act is to operate in relation to Creative Memories Australia Pty Ltd (Administrators Appointed) ABN 760 801 791 93 to the effect that notwithstanding the absence of a locally resident director, the resolution of directors passed on 30 April...