Australia, June 27 -- New South Wales Land and Environment Court issued text of the following judgement on May 27:

1. By Interlocutory Application filed today, by leave, Messrs Calabretta, Lawrence and Tribut ("Voluntary Administrators") applied for an order that winding up proceedings brought by the Plaintiff, Workfast Infrastructure Australia Pty Ltd ("Workfast") be adjourned under s 440A(2) of the Corporations Act 2001 (Cth) ("Act") to a date after 3 June 2025. That application is directed to the fact that there is a proposed second meeting of creditors of the Defendant in that application, Usman Dental Pty Ltd ("Usman Dental") to take place shortly.

2. Section 440A(2) of the Act relevantly provides that the Court is to adjourn the hearing of an application for an order to wind up a company if the company is under voluntary administration and the Court is satisfied that it is in the interests of the company's creditors for the company to continue under administration rather than be wound up. The applicable principles are well established and have been consistently applied since the decision in Deputy Commissioner of Taxation v Bradley Keeling Management Pty Ltd (2003) 44 ACSR 377; [2003] NSWSC 47 at [18]. The ultimate question is whether the Court is persuaded that the winding up application should be adjourned, and the amount of proof that is necessary to establish that matter may vary, depending upon whether an application is brought shortly after the voluntary administrator is appointed or at a later date. Here, the application is brought several weeks after the administrator is appointed, and only just before a proposed second meeting of creditors to consider a deed of company arrangement ("DOCA") put forward by persons associated with the company, which would be an alternative to a winding up. In Re Offshore & Ocean Engineering Pty Ltd [2012] NSWSC 1296 at [6], as to which leave to appeal was refused by the Court of Appeal, Brereton J observed that the section required that the Court be satisfied "that it is in the interest of the company's creditors for the company to continue under administration, rather than be wound up, as distinction from satisfaction that it may be so". His Honour also noted at [6] that "a substantial degree of persuasion that administration rather than liquidation is in the interests of a company's creditors is required to invoke the section". I have also addressed the relevant authorities in cases including Re Denham Constructions Pty Ltd [2016] NSWSC 1425 and [2016] NSWSC 1426, and Re Trinity Constructions (Aust) Pty Ltd (admin apptd) [2021] NSWSC 1277.

Affidavit evidence

3. The Voluntary Administrators lead substantial evidence in support of the adjournment application, but the application can ultimately be determined on a relatively straightforward basis. The Voluntary Administrators read a first affidavit dated 26 May 2025 of Mr Tribut, who is a joint and several administrator of Usman Dental and associated companies and refers to a proposal for a "pooled deed of company arrangement" in respect of Usman Dental.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197577027ca85cb7a035224f)

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