In the matter of Supervac Australia Pty Ltd ACN 050 097 222 Supervac Australia Pty Ltd & Anor v Australasian Memory Pty Ltd In the matter of Australian Gold Pty Ltd ACN 066 196 272 Australian Gold Pty Ltd & Anor v Australasian Memory Pty Ltd [1997] FCA 534

In the matter of Supervac Australia Pty Ltd ACN 050 097 222 Supervac Australia Pty Ltd & Anor v Australasian Memory Pty Ltd In the matter of Australian Gold Pty Ltd ACN 066 196 272 Australian Gold Pty Ltd & Anor v Australasian Memory Pty Ltd [1997] FCA 534

Because the ordinary meaning of subs 439A(2) requires the creditors' meeting to be held within 5 business days after the end of the convening period, and because allowing a meeting before that time would be inconsistent with the statutory duties and investigations contemplated by Part 5.3A, the meeting held on 3 March 1997 before the convening period ended on 10 March 1997 was not convened in accordance with subs 439A(2).

Jurisdiction
Australia
Judgment Date
06 June 1997
Procedural Posture
Applications Concerning Creditors' Statutory Demands / Reasons for Judgment on Separate Decision of a Common Issue Under O 29 R 2 of the Federal Court Rules
Outcome
The separate question was answered No: the meeting of creditors held on 3 March 1997 was not convened in accordance with subs 439A(2) of the Corporations Law.
Legal Topics
["creditors' Statutory Demands" 'voluntary Administration' 'meeting of Creditors' 'convening Period' 'statutory Construction']
['corporations Law' 'insolvency Law'] ["creditors' Statutory Demands" 'voluntary Administration' 'meeting of Creditors' 'convening Period' 'statutory Construction']

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Procedural Posture

Applications Concerning Creditors' Statutory Demands / Reasons for Judgment on Separate Decision of a Common Issue Under O 29 R 2 of the Federal Court Rules

Legal Issues

  1. 1 ['Whether the meeting of creditors of the respondent held on 3 March 1997 was convened in accordance with subs 439A(2) of the Corporations Law.' "Whether the purported creditors' meeting and resolutions were invalid and of no effect." "Whether the respondent's joint liquidators or representatives had authority to issue or support the creditors' statutory demands if the voluntary administration ended on 10 March 1997."]

Ratio Decidendi

Because the ordinary meaning of subs 439A(2) requires the creditors' meeting to be held within 5 business days after the end of the convening period, and because allowing a meeting before that time would be inconsistent with the statutory duties and investigations contemplated by Part 5.3A, the meeting held on 3 March 1997 before the convening period ended on 10 March 1997 was not convened in accordance with subs 439A(2).

Court Disposition

The separate question was answered No: the meeting of creditors held on 3 March 1997 was not convened in accordance with subs 439A(2) of the Corporations Law.

Orders

  • ['In each case, an order was considered appropriate for the separate decision of the question: Was the meeting of the creditors of the respondent held on 3 March 1997 convened in accordance with subs 439A(2) of the Corporations Law?' 'The answer to the separate question was: No.']