Bernsteen Pty Ltd & Anor v Macks P. [1995] FCA 801

Bernsteen Pty Ltd & Anor v Macks P. [1995] FCA 801

Because the present application was made outside the 21-day period beginning on the day when the administrations commenced, s439A(6) did not empower the Court to grant a further extension of the convening period. The Court also had no power to vary the earlier orders to circumvent that statutory limitation, as there was no accidental slip or omission or mismatch between the orders and the Court's and applicant's intention when they were made. The applications therefore had to be dismissed.

Jurisdiction
Australia
Judgment Date
29 September 1995
Procedural Posture
Application to Vary Prior Orders or Alternatively Further Extend the Convening Period Under S439 a of the Corporations Law for Companies Under Administration / Urgent Notice of Motion After Earlier Orders Extending the Convening Period
Outcome
Applications dismissed.
Legal Topics
['part 5.3 a Administration' 'extension of Convening Period' 'court Power Under S439 A(6)' 'committee of Creditors Functions' 'variation of Orders']
['corporations Law' 'insolvency Law' 'civil Procedure'] ['part 5.3 a Administration' 'extension of Convening Period' 'court Power Under S439 A(6)' 'committee of Creditors Functions' 'variation of Orders']

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Procedural Posture

Application to Vary Prior Orders or Alternatively Further Extend the Convening Period Under S439 a of the Corporations Law for Companies Under Administration / Urgent Notice of Motion After Earlier Orders Extending the Convening Period

Legal Issues

  1. 1 ['Whether s439A(6) of the Corporations Law permitted extension of the convening period on an application made outside the period of 21 days beginning on the day when the administrations commenced.' 'Whether the Court could vary its earlier orders extending the convening period to avoid the time limit in s439A(6).' 'Whether, if power existed, discretion should be exercised to grant a further extension where the administrator had acted on requests or directions of the committee of creditors for further financial information and independent review.']

Ratio Decidendi

Because the present application was made outside the 21-day period beginning on the day when the administrations commenced, s439A(6) did not empower the Court to grant a further extension of the convening period. The Court also had no power to vary the earlier orders to circumvent that statutory limitation, as there was no accidental slip or omission or mismatch between the orders and the Court's and applicant's intention when they were made. The applications therefore had to be dismissed.

Court Disposition

Applications dismissed.

Orders

  • ['The applications made by the notice of motion of 29 September 1995 are dismissed.']