McGrath, in the matter of HWE Civil Pty Limited (Subject to Deed of Company Arrangement) (ACN 106 551 302) [2005] FCA 1883

McGrath, in the matter of HWE Civil Pty Limited (Subject to Deed of Company Arrangement) (ACN 106 551 302) [2005] FCA 1883

The court held that it is appropriate for administrators’ remuneration under a DOCA to be fixed by a committee of inspection as provided by the DOCA, following a process similar to that for court-appointed liquidators under s 473, and granted orders under s 447A Corporations Act accordingly.

Parties
First Plaintiff: Anthony Gregory McGrath; First Plaintiff: Scott Bradley Kershaw; First Plaintiff: Joseph David Hayes; First Plaintiff: Shaun Robert Fraser; Second Plaintiff: HWE Civil Pty Limited (Subject to Deed of Company Arrangement) (ACN 106 551 302); Second Plaintiff: Bulumba Pty Limited (ACN 008 060 240); Second Plaintiff: Capnorth Developments Pty Limited (ACN 009 640 251); Second Plaintiff: Castlemaine Wastewater Treatment Pty Limited (ACN 081 417 030); Second Plaintiff: HWE Finance Pty Limited; Second Plaintiff: HWE Land Pty Limited (ACN 009 593 668); Second Plaintiff: HWGL Services Pty Limited (ACN 009 614 788); Second Plaintiff: HWIO Pty Limited (ACN 009 615 436); Second Plaintiff: Inventive Pty Limited (ACN 072 445 179); Second Plaintiff: LSM Projects Pty Limited (ACN 009 639 310); Second Plaintiff: Northaust Auto Hire Pty Limited (ACN 106 580 134); Second Plaintiff: Simon Engineering (Australia) Holdings Pty Ltd (ACN 009 639 490); Second Plaintiff: Simon Engineering (Australia) Pty Limited (ACN 000 142 165); Second Plaintiff: Bridge Autos Pty Limited (ACN 000 117 000); Second Plaintiff: Dover Investments Pty Limited (ACN 009 625 816); Second Plaintiff: Castleton Pty Limited (ACN 009 637 914); Second Plaintiff: Eltin International Pty Limited (ACN 009 210 664); Second Plaintiff: Eltin Open Pitt Operations Pty Limited (ACN 009 211 456); Second Plaintiff: 008 918 278; Third Plaintiff: ACN 009 366 036 Pty Limited (Subject to Deed of Company Arrangement)
Jurisdiction
Australia
Judgment Date
22 December 2005
Procedural Posture
Corporations – Administration – Application for Orders / Judgment and Orders
Outcome
Orders granted as sought with additional requirement for notice to creditors.
Legal Topics
Administration, Deeds of Company Arrangement, Remuneration, Committees of Inspection
Corporations Law Administration Deeds of Company Arrangement Remuneration Committees of Inspection

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Parties

Anthony Gregory McGrath

First Plaintiff

Scott Bradley Kershaw

First Plaintiff

Joseph David Hayes

First Plaintiff

Shaun Robert Fraser

First Plaintiff

HWE Civil Pty Limited (Subject to Deed of Company Arrangement) (ACN 106 551 302)

Second Plaintiff

Bulumba Pty Limited (ACN 008 060 240)

Second Plaintiff

Capnorth Developments Pty Limited (ACN 009 640 251)

Second Plaintiff

Castlemaine Wastewater Treatment Pty Limited (ACN 081 417 030)

Second Plaintiff

HWE Finance Pty Limited

Second Plaintiff

HWE Land Pty Limited (ACN 009 593 668)

Second Plaintiff

HWGL Services Pty Limited (ACN 009 614 788)

Second Plaintiff

HWIO Pty Limited (ACN 009 615 436)

Second Plaintiff

Inventive Pty Limited (ACN 072 445 179)

Second Plaintiff

LSM Projects Pty Limited (ACN 009 639 310)

Second Plaintiff

Northaust Auto Hire Pty Limited (ACN 106 580 134)

Second Plaintiff

Simon Engineering (Australia) Holdings Pty Ltd (ACN 009 639 490)

Second Plaintiff

Simon Engineering (Australia) Pty Limited (ACN 000 142 165)

Second Plaintiff

Bridge Autos Pty Limited (ACN 000 117 000)

Second Plaintiff

Dover Investments Pty Limited (ACN 009 625 816)

Second Plaintiff

Castleton Pty Limited (ACN 009 637 914)

Second Plaintiff

Eltin International Pty Limited (ACN 009 210 664)

Second Plaintiff

Eltin Open Pitt Operations Pty Limited (ACN 009 211 456)

Second Plaintiff

008 918 278

Second Plaintiff

ACN 009 366 036 Pty Limited (Subject to Deed of Company Arrangement)

Third Plaintiff

Procedural Posture

Corporations – Administration – Application for Orders / Judgment and Orders

Legal Issues

  1. 1 Whether administrators' remuneration under each DOCA can be fixed by a committee of inspection provided for by each DOCA
  2. 2 Whether the process for fixing remuneration should mirror that for Court-appointed liquidators under s 473 Corporations Act
  3. 3 Whether court should authorise such an arrangement under s 447A Corporations Act

Ratio Decidendi

The court held that it is appropriate for administrators’ remuneration under a DOCA to be fixed by a committee of inspection as provided by the DOCA, following a process similar to that for court-appointed liquidators under s 473, and granted orders under s 447A Corporations Act accordingly.

Court Disposition

Orders granted as sought with additional requirement for notice to creditors.

Orders

  • Pt 5.3A of the Corporations Act to operate in relation to each of the second and third plaintiffs as if s 449E is modified as specified.
  • Relevant sections of the Act and Regulations applied with modifications as specified.