Supervac Australia Pty Ltd & Anor v Australasian Memory Pty Ltd Australian Gold Pty Ltd & Anor v Australasian Memory Pty Ltd [1997] FCA 704

Supervac Australia Pty Ltd & Anor v Australasian Memory Pty Ltd Australian Gold Pty Ltd & Anor v Australasian Memory Pty Ltd [1997] FCA 704

Leave to file the respondent's cross-claim in NG 3111 of 1997 was refused and the cross-claim was summarily dismissed because the proceeding and parties were inappropriate for the proposed regularisation of the respondent's affairs, the purported liquidators were not validly appointed and could not properly retain solicitors for the respondent, and the Court was not convinced that s 1322 was the proper route; any such application might more appropriately be brought by interested persons, potentially under s 447A, with the company as respondent and the Australian Securities Commission served or joined. The applications were disposed of by orders under s 459J rather than by the declarations...

Jurisdiction
Australia
Judgment Date
19 June 1997
Procedural Posture
Applications Under Section 459 G of the Corporations Law to Set Aside Statutory Demands, With Related Relief Concerning the Validity of a Div 5 of Pt 5.3 a Meeting / Ex Tempore Reasons for Judgment Disposing of Applications and Respondent's Cross Claim After Determination of a Separate Question
Outcome
The cross-claim was summarily dismissed; the applications were disposed of by orders under s 459J of the Corporations Law; declarations were not made.
Legal Topics
['statutory Demands' 'voluntary Administration' 'validity of Creditors Meeting' 'irregularities Under the Corporations Law' 'cross Claim Leave' 'costs']
['corporations Law' 'insolvency' 'civil Procedure'] ['statutory Demands' 'voluntary Administration' 'validity of Creditors Meeting' 'irregularities Under the Corporations Law' 'cross Claim Leave' 'costs']

Case Brief

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Procedural Posture

Applications Under Section 459 G of the Corporations Law to Set Aside Statutory Demands, With Related Relief Concerning the Validity of a Div 5 of Pt 5.3 a Meeting / Ex Tempore Reasons for Judgment Disposing of Applications and Respondent's Cross Claim After Determination of a Separate Question

Legal Issues

  1. 1 ['Whether the respondent should be granted leave nunc pro tunc to file a cross-claim under section 1322 of the Corporations Law in NG 3111 of 1997.' 'Whether the meeting of creditors of the respondent held on 3 March 1997 could be declared not invalid by reason of being held before the end of the convening period specified in s 439A(5).' 'Whether the applications should be disposed of by declarations concerning the meeting or by orders under s 459J of the Corporations Law.' "Whether the applicants' costs should be paid by the solicitor who purported to act for the respondent."]

Ratio Decidendi

Leave to file the respondent's cross-claim in NG 3111 of 1997 was refused and the cross-claim was summarily dismissed because the proceeding and parties were inappropriate for the proposed regularisation of the respondent's affairs, the purported liquidators were not validly appointed and could not properly retain solicitors for the respondent, and the Court was not convinced that s 1322 was the proper route; any such application might more appropriately be brought by interested persons, potentially under s 447A, with the company as respondent and the Australian Securities Commission served or joined. The applications were disposed of by orders under s 459J rather than by the declarations...

Court Disposition

The cross-claim was summarily dismissed; the applications were disposed of by orders under s 459J of the Corporations Law; declarations were not made.

Orders

  • ['The order made on 30 May 1997 was revoked.' 'Leave to file the cross-claim in NG 3111 of 1997 was refused.' 'The cross-claim in NG 3111 of 1997 was summarily dismissed.' 'Orders were made in terms of paragraph 1 of each application under s 459J of the Corporations Law.' "The applicants' costs of each application...