RE AUSCARE STAFFING AGENCY PTY LTD (ADMINISTRATOR APPOINTED) (ACN 135 506 357); EX PARTE TRIBUT as administrator of AUSCARE STAFFING AGENCY PTY LTD (ADMINISTRATOR APPOINTED) [2026] WASC 192

[2026] WASC 192 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : RE AUSCARE STAFFING AGENCY PTY LTD (ADMINISTRATOR APPOINTED) (ACN 135 506 357); EX PARTE TRIBUT as administrator of AUSCARE STAFFING AGENCY PTY LTD (ADMINISTRATOR APPOINTED) [2026] WASC 192 CORAM : STRK J HEARD : 15 MAY 2026 DELIVERED : 15 MAY 2026 FILE NO/S : COR 55 of 2026 MATTER : IN THE MATTER OF AUSCARE STAFFING AGENCY PTY LTD (ADMINISTRATOR APPOINTED) (ACN 135 506 357) EX PARTE MATHIEU TRIBUT AS ADMINISTRATOR OF AUSCARE STAFFING AGENCY PTY LTD (ADMINISTRATOR APPOINTED) Plaintiff Catchwords: Corporations - External administration - Application by administrator to extend convening period for second creditors' meeting - Turns on own facts -- 1 of 14 -- [2026] WASC 192 Page 2 Legislation: Corporations Act 2001 (Cth) s 439A, s 447A Result: Application granted Category: B Representation: Counsel: Plaintiff : Ms B Panov Solicitors: Plaintiff : Mendelawitz Morton Commercial Lawyers Cases referred to in decision: Australasian Memory Pty Ltd v Brien (2000) 200 CLR 270 Cameron Shaw and Richard Albarran in their Capacity as Joint and Several Administrators of Home Art Building Group Pty Ltd (Administrators Appointed) v Home Art Building Group Pty Ltd (Administrators Appointed) [2016] WASC 274 Re Daisytek Pty Ltd (administrators appointed) [2003] FCA 575; (2003) 45 ACSR 446 Re Foodora Australia Pty Ltd (Administrators Appointed) [2018] NSWSC 1426 Re Reid Group Pty Ltd (Administrators Appointed); Ex parte Kirman & Bauer [2017] WASC 219 Re Riviera Group Pty Ltd (Admins Apptd) (Recrs and Mgrs Apptd) [2009] NSWSC 585 -- 2 of 14 -- [2026] WASC 192 STRK J Page 3 STRK J: (This judgment was delivered extemporaneously and has been edited to include references, headings and to correct matters of grammar and expression.) Introduction 1 By an originating process dated 13 May 2026, the plaintiff seeks an order pursuant to s 439A of the Corporations Act 2001 (Cth) to extend the convening period of the second creditors' meeting of Auscare Staffing Agency Pty Ltd (administrator appointed) (Company). The extension is sought for a period up to and including 19 August 2026. 2 The plaintiff also seeks an order pursuant to s 447A(1) of the Corporations Act that the second creditors' meeting may be held at any time during the extended period or within the period of five business days thereafter, notwithstanding s 439A(2) of the Corporations Act. 3 On 13 May 2026 the plaintiff also filed a certificate of urgency certifying the application was of such an urgent nature that it was required to be listed and heard immediately. The basis for the urgency was that, unless the extension was granted, the convening period for the second meeting of creditors of the Company will end on or about 19 May 2026 pursuant to s 439A(5)(b)(1) of the Corporations Act. 4 In support of the application, counsel for the plaintiff read an affidavit of Mathieu Tribut, the plaintiff and administrator of the Company, filed on 14 May 2026. 5 I have also had the benefit of a written outline of submissions filed on 13 May 2026 as well as brief oral submissions from counsel who appeared for the plaintiff at the hearing on 15 May 2026. Factual background 6 Mathieu Tribut is a director of the Perth office at MacKay Goodwin, and a registered liquidator. Pursuant to s 436A of the Corporations Act and a resolution of the Company's directors, he was appointed as the administrator of the Company on 20 April 2026.1 1 Affidavit of M Tribut affirmed 14 May 2026, par 6. -- 3 of 14 -- [2026] WASC 192 STRK J Page 4 7 On 1 May 2026 the plaintiff convened and conducted the first meeting of creditors of the Company.2 The convening period in respect of the Company under s 439A(5) of the Corporations Act is due to expire on or about 19 May 2026. He has not convened the second meeting of creditors.3 8 In his affidavit filed in support of the application, the plaintiff deposed to his investigations and the steps taken by him in the administration to date.4 9 The plaintiff deposed that the Company has been operating in Western Australia for over 17 years and provides services within the health and community sectors including aged care and home support services, National Disability Insurance Scheme (NDIS) disability support services, community and veterans support services, healthcare staffing solutions and delivers nationally accredited courses in healthcare, individual support and first aid. The Company supports a significant number of vulnerable individuals and healthcare providers across Western Australia.5 10 As to its assets, the plaintiff deposed that the Company appears to have limited tangible assets other than the goodwill in the Company's business and significant related party loans recorded in the books and records of the Company, the recoverability of which is not known at this stage.6 11 The unsecured creditors of the Company (who mainly comprise of the Australian Taxation Office (ATO)) identified to date total approximately $2.9 million.7 12 The plaintiff is continuing to trade the Company's business during the voluntary administration period. The plaintiff deposed that the books and records of the Company show that the Company is trading profitably at this time.8 2 Affidavit of M Tribut affirmed 14 May 2026, par 10. 3 Affidavit of M Tribut affirmed 14 May 2026, par 13. 4 Affidavit of M Tribut affirmed 14 May 2026, pars 15 - 17 (investigations), par 18 (steps taken to date). 5 Affidavit of M Tribut affirmed 14 May 2026, par 20. 6 Affidavit of M Tribut affirmed 14 May 2026, par 22. 7 Affidavit of M Tribut affirmed 14 May 2026, par 29. 8 Affidavit of M Tribut affirmed 14 May 2026, par 32. -- 4 of 14 -- [2026] WASC 192 STRK J Page 5 13 Of significance, the plaintiff deposed to the making of various preliminary findings in relation to the affairs of the Company; and as to the tasks for which he requires further time.9 14 At this time, the plaintiff is also yet to receive a deed of company arrangement (DOCA) proposal from any person;10 and has engaged GMO WA Pty Ltd trading as Goodwin Mitchell O'Hehir & Associates (GMO) to market for sale and carry out an expression of interest campaign in respect of the Company's business and assets.11 An update as to the sale process was in the evidence before the Court. The statutory requirements 15 Section 439A of the Corporations Act requires the administrator of a company under administration to convene a meeting of the company's creditors within the convening period as fixed by subsection (5) or as extended under subsection (6). The meeting must be held within five business days before, or within five business days after, the end of the convening period by operation of s 439A(2). 16 Pursuant to r 75-225 of the Insolvency Practice Rules (Corporations) 2016 (Cth), the notice of the second meeting of creditors must be accompanied by first, a report to creditors of the company in relation to the business, property, affairs and financial circumstances of the company, and secondly, a statement expressing the administrator's opinion on, among other things, whether it would be in the interests of creditors for (a) any proposal for a deed of company arrangement made by interested parties to be executed by the company; (b) for the administration to end; or (c) for the company to be wound up. 17 Section 439A(6) of the Corporations Act provides that the Court may extend the convening period on an application made during or after the period referred to in s 439A(5)(a) or (b), as the case requires. If an application is made under subsection (6) after the period referred to in subsection (5)(a) or (b), as the case may be, the Court may only extend the convening period if the Court is satisfied that it would be in the best interests of the creditors if the convening period were extended in accordance with the application.12 Also, if made after the period referred to in subsection (5)(a) or (b), as the case may be, then in 9 Affidavit of M Tribut affirmed 14 May 2026, pars 30 and 31. 10 Affidavit of M Tribut affirmed 14 May 2026, par 33. 11 Affidavit of M Tribut affirmed 14 May 2026, par 18.2. 12 Corporations Act s 439A(7). -- 5 of 14 -- [2026] WASC 192 STRK J Page 6 making an order about the costs of the application, the Court must have regard to the matters prescribed in subsections (8)(a) to (c). Should an extension of time to convene the second creditors' meeting be granted? 18 Turning to the question of standing, the plaintiff was appointed as administrator of the Company by a resolution of the directors of the Company on 20 April 2026 pursuant to s 436A of the Corporations Act.13 The plaintiff has standing to bring this application as administrator of the Company under s 447A(4)(c). 19 I also note in the disposition of the application that the convening period for the second meeting of creditors of the Company ends on or about 19 May 2026 pursuant to s 439A(5)(b)(1) of the Corporations Act. This application was therefore made within the convening period in accordance with s 439A(6). 20 In considering whether to grant the extension sought, the Court is required to consider and take into account the objects and scheme of pt 5.3A of the Corporations Act, as set out in s 435A. 21 In determining the application, I had regard to the objects and scheme of pt 5.3A of the Corporations Act, and the Court's function as discernible from that part. I also had regard to and applied the following principles:14 (1) The short time frames are an element of the scheme of the [Corporations] Act, the purpose being that creditors should be fully informed about the company's position and have the opportunity to vote as soon as possible. (2) However, the prospects of a better return to creditors may outweigh the expectation and desirability of prompt resolution. The exercise of power under s 439A(6) involves a balancing of these considerations. (3) In considering an application for an extension, the court must take into account the detriment to third parties including the suspension of rights and remedies of secured creditors, lessors and others. 13 Affidavit of M Tribut affirmed 14 May 2026, par 6. 14 Re Reid Group Pty Ltd (Administrators Appointed); Ex parte Kirman & Bauer [2017] WASC 219 [4(1) - (5)] (Banks-Smith J), citing Cameron Shaw and Richard Albarran in their Capacity as Joint and Several Administrators of Home Art Building Group Pty Ltd (Administrators Appointed) v Home Art Building Group Pty Ltd (Administrators Appointed) [2016] WASC 274 [18] (Beech J). -- 6 of 14 -- [2026] WASC 192 STRK J Page 7 (4) An important question on such an application is whether an extension is necessary to enable the administrator to prepare reports and to come to the opinion required by s 439A(4) to inform creditors as to the appropriate choice between the options of a deed on company arrangement for the administration to end or for the company to be wound up. (5) Any extension should be for no longer than is necessary for an informed decision to be made as to whether to enter into a deed of company arrangement, wind-up the company or end the administration. 22 Taking into account all of the evidence read and the submissions made, the convening period should be extended. In the balance the following matters were weighed. 23 First, the reasons which ground this application for extension fall within recognised categories for relief. 24 The plaintiff deposed that it has not had sufficient time to fully complete his investigations into the financial affairs of the Company within the time stipulated in s 439A(5)(b) of the Corporations Act, and his investigations into the affairs of the Company are ongoing. 25 The requested extension was said to enable the administrator's pursuit of outstanding tasks as outlined in the plaintiff's submissions as follows:15 13.1. take all steps reasonably necessary to preserve the Company's NDIS registration and any other registrations, approvals, contracts or operational arrangements necessary for the continued trading of the business; 13.2. complete his investigations into the affairs of the Company, including his investigations into any potential claims against the directors, the creditors of the Company and any other voidable transactions; 13.3. complete the expression of interest campaign and secure offers for the sale of the Company's business and its assets; 13.4. negotiate and, if appropriate, formalise any transaction documentation associated with any sale or restructuring proposal; 13.5. provide sufficient time for one or both of the directors to put forward any DOCA proposal in respect of the Company; 15 Plaintiff's submissions filed 13 May 2026, par 13. -- 7 of 14 -- [2026] WASC 192 STRK J Page 8 13.6. properly consider and compare any DOCA proposal, sale proposal, restructure proposal, or liquidation scenario for the purpose of forming a view as to which outcome is likely to be in the best interests of creditors; 13.7. assess the likely return to creditors under sale and liquidation scenarios; and 13.8. fully inform himself of the Company's financial position and report on his findings in accordance with section 439A(4) of the [Corporations] Act. 26 Further, the proposed extension of approximately 90 days was said to enable the plaintiff to carry out a number of tasks and matters in addition to those reproduced at [25] above:16 14.1. properly conduct an expression of interest campaign to secure a buyer for the Company's business as a going concern at the best possible price and/or a DOCA proposal that will see a better return to creditors than a liquidation scenario; 14.2. complete his investigations into the affairs of the Company and its financial position; 14.3. finalise a report to creditors, prepare an estimate of the outcome for creditors and provide a recommendation to creditors as to the future of the Company in accordance with section 439A of the [Corporations] Act. (footnotes omitted) 27 Secondly, I had regard and gave weight to the considered judgment of the plaintiff, an experienced administrator with respect to the extension.17 28 On the evidence of Mr Tribut I was satisfied that the requested extension was intended to facilitate sensible and constructive actions directed to maximising the return for creditors. 29 Thirdly, as to creditors, there was no evidence of any material prejudice to creditors arising from the continuation of the administration during the proposed extension period. 30 Further, the plaintiff maintains that the proposed extension is in the best interests of creditors. In this regard, I noted that the plaintiff is not presently able to form a fully informed view as to the likely return 16 Plaintiff's submissions filed 13 May 2026, par 14. 17 Affidavit of M Tribut affirmed 14 May 2026, par 43. -- 8 of 14 -- [2026] WASC 192 STRK J Page 9 to creditors under a sale, DOCA or a liquidation scenario.18 That said, it was submitted that based on the information available to date, there is a real prospect that any meaningful return to creditors may depend upon a sale of the Company's business and/or a DOCA scenario. That is because the only real or substantial assets of the Company appear to be the goodwill in the Company's business and the related party claims, the recoverability of which is unknown at this stage.19 31 Fourthly, I considered the possible impact on third parties. The Court was informed that (to the best of counsel's knowledge) there was no known adverse impact to third parties. 32 As was observed on behalf of the plaintiff, if the Company is placed into liquidation, this would result in the Company's employees being terminated from their employment; the Company's clients, who are vulnerable members of society and who rely on the Company's services, being adversely affected; and health care providers who rely on the Company for staffing support also being adversely affected, creating a greater burden on the wider Western Australian health system.20 33 It was further noted that if there is no prospect of achieving a sale of the Company's business and/or a DOCA proposal, then the plaintiff would require sufficient time to transition vulnerable clients to new service providers.21 34 Fifthly, on 11 May 2026 the plaintiff issued a notice to all creditors of the Company advising of his intention to apply to the Court to extend the convening period of the Company to 19 August 2026 for the reasons set out in that notice.22 As was emphasised on behalf of the plaintiff in the submissions filed, as at the date of the plaintiff's affidavit, he had not received any objections from creditors of the Company in respect of the application.23 Counsel at the hearing confirmed that she was not aware of any such objection having been made prior to the hearing. 35 Sixthly, I took comfort from the proposed order which contemplates that the plaintiff (or his solicitors) shall give notice of the Court's orders by circular sent by email or by ordinary post within two 18 Plaintiff's submissions filed 13 May 2026, par 15. 19 Plaintiff's submissions filed 13 May 2026, par 16. 20 Plaintiff's submissions filed 13 May 2026, par 17. 21 Plaintiff's submissions filed 13 May 2026, par 18. 22 Plaintiff's submissions filed 13 May 2026, par 21. 23 Plaintiff's submissions filed 13 May 2026, par 22. -- 9 of 14 -- [2026] WASC 192 STRK J Page 10 days of the making of orders to all creditors of the Company. Further, in the minute filed the plaintiff promoted the making of an order granting liberty to any party claiming to be prejudiced by the making of the orders to apply to vacate or vary the orders on or before 14 days after receipt of notice. 36 On balance, I was satisfied that the evidentiary case for extension was present; that there was no evidence of material prejudice to those affected by the moratorium imposed by the administration; and that the administrator's estimate of time had a reasonable basis.24 Taking into account all of the evidence before me, and the submissions made, I was satisfied that the convening period should be extended. I considered that an extension in the circumstances deposed to would reach an appropriate balance between an expectation that the administration would be relatively speedy, that the administrator would expeditiously pursue an outcome for creditors, and the countervailing factor that undue speed should not be allowed to prejudice sensible and constructive actions directed to maximising the return for the creditors. 'Daisytek' order 37 The plaintiff also sought a Daisytek order under s 447A of the Corporations Act, being an order to the effect that the second creditors' meetings may be held at any time within the extended convening period or the period of five business days thereafter, notwithstanding the effect of s 439A(2) of the Corporations Act.25 38 I was prepared to make such an order (as had been proposed in the originating process and the minute of proposed orders), and in doing so was cognisant of the principles to be applied when exercising the power afforded by s 447A.26 39 Absent such an order, the plaintiff would have been obliged to hold the second meetings of creditors within the period prescribed by s 439A(2) of the Corporations Act by reference to the end of the extended convening period. The meetings could not be held prior to that period even if the plaintiff were ready to proceed, and I considered it to be convenient and desirable that he not be required to wait. 40 I accepted that s 447A(1) gave the Court sufficient power to make a Daisytek order as promoted on behalf of the administrator. It had a 24 Re Riviera Group Pty Ltd (Admins Apptd) (Recrs and Mgrs Apptd) [2009] NSWSC 585 [14] (Austin J). 25 Re Daisytek Pty Ltd (administrators appointed) [2003] FCA 575; (2003) 45 ACSR 446. 26 Re Foodora Australia Pty Ltd (Administrators Appointed) [2018] NSWSC 1426 [7]; Australasian Memory Pty Ltd v Brien (2000) 200 CLR 270. -- 10 of 14 -- [2026] WASC 192 STRK J Page 11 clear nexus with how pt 5.3A was to operate with respect to the companies in administration. Further, as a matter of discretion, I considered it appropriate that the administrator be enabled to convene the meetings to be held on a date prior to the extended convening period if this was thought to be desirable, rather than being compelled to wait, which I also considered to be in the interests of the creditors. Costs 41 The plaintiff sought an order that the costs of and incidental to this application be the costs and expenses properly incurred in the administration of the Company. That was appropriate in the circumstances and I will make an order that such costs be so treated. Conclusion 42 For these reasons, I consider it to be in the best interests of the creditors of the Company if the convening period is extended in accordance with the application. Orders were made substantively in the form promoted on behalf of the plaintiff, save that I extended the period in proposed order 4 of the minute from 14 to 21 days. At the conclusion of the hearing of the application, orders were made in the form reproduced at sch A to these reasons. -- 11 of 14 -- [2026] WASC 192 STRK J Page 12 Sch A - Orders made on 15 May 2026 -- 12 of 14 -- [2026] WASC 192 STRK J Page 13 -- 13 of 14 -- [2026] WASC 192 STRK J Page 14 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. DS Associate to the Honourable Justice Strk 15 MAY 2026 -- 14 of 14 --