CCGF Holding Pty Ltd v Coegi Group Pty Ltd (No 3)
[2022] FCA 1288
•26 October 2022
FEDERAL COURT OF AUSTRALIA
CCGF Holding Pty Ltd v Coegi Group Pty Ltd (No 3) [2022] FCA 1288
File number: QUD 870 of 2018 Judgment of: RANGIAH J Date of judgment: 26 October 2022 Catchwords: PRACTICE AND PROCEDURE – Application for adjournment of trial shortly before the trial listed to commence – where adjournment sought in order to bring further causes of action against respondent – where no adequate explanation provided for the delay – application for adjournment dismissed Legislation: Corporations Act 2001 (Cth) ss 180-182, 588FDA
Federal Court of Australia Act1976 (Cth) s 37M
Cases cited: Zetta Jet Pte Ltd v The Ship “Dragon Pearl” [2018] FCA 878 Division: General Division Registry: Queensland National Practice Area: Commercial and Corporations Sub-area: Regulator and Consumer Protection Number of paragraphs: 12 Date of Interlocutory hearing: 26 October 2022 Counsel for the Applicant: Mr S Stuckey KC Solicitor for the Applicant: DSA Law Counsel for the Fifth Respondent: Mr P Somers Solicitor for the Fifth Respondent: Lander & Rogers Counsel for the First, Second, Third and Fourth Respondents: The First to Fourth Respondents did not appear ORDERS
QUD 870 of 2018 BETWEEN: CCGF HOLDING PTY LTD ACN 604 129 802
Applicant
AND: COEGI GROUP PTY LTD ACN 622 199 357
First Respondent
COEGI CONNECT PTY LTD ACN 622 200 337
Second Respondent
CONSOL GROUP APAC PTY LTD ACN 612 813 484 (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
RANGIAH J
DATE OF ORDER:
26 OCTOBER 2022
THE COURT ORDERS THAT:
1.The applicant’s application for an adjournment is dismissed.
2.The applicant pay the fifth respondent’s costs of the application for an adjournment.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(DELIVERED EX TEMPORE AND REVISED FROM TRANSCRIPT)RANGIAH J:
The trial of this proceeding has been listed for four days commencing on 31 October 2022. The applicant now seeks an adjournment of the trial for an unspecified period. The fifth respondent opposes any adjournment.
The applicant commenced the proceeding on 23 November 2018, alleging that it had been induced by misleading or deceptive representations to pay $500,000 for the purchase of shares in the first respondent. The applicant subsequently obtained default judgment against the first five respondents and ultimately discontinued proceedings against the sixth and seventh respondents.
The fifth respondent then applied for the default judgment against her to be set aside. On 4 November 2020, I made orders setting aside that default judgment. The proceeding has subsequently continued solely against the fifth respondent.
By Order of 7 July 2022, the matter was listed for trial. On 17 October 2022, the applicant notified the fifth respondent that it intended to apply for an adjournment of the trial. The application for adjournment was made orally to the Court on 18 October 2022. The fifth respondent is correct to describe the application for adjournment as having been made shortly before the trial.
As a result of the default judgments, the first, second and third respondents went into liquidation in 2019. The applicant’s solicitors wrote to the liquidators on 22 March 2022 seeking to have them take proceedings against the fifth respondent. There does not seem to have been any response by the liquidators. In August 2022, the applicant provided instructions to its solicitors to seek to acquire any rights of action of the liquidators against the fifth respondent.
The applicant has now negotiated an agreement with the liquidators to acquire those rights, subject to the approval of the creditors. The applicant seeks the adjournment of the trial in order to bring proceedings against the fifth respondent in respect of dealings by her husband (the fourth respondent), who was a director of the first, second and third respondents, with the $500,000 after it had been paid. The applicant proposes to allege that the money was unlawfully dissipated and applied in part for the benefit of the fifth respondent, and that the fifth respondent was a party to contraventions by the fourth respondent of at least ss 180-182 and 588FDA of the Corporations Act 2001 (Cth).
The applicant submits that it would benefit the efficient determination of the issues between the parties if the trial dates were vacated and the applicant were permitted to include the assigned claims so that both sets of allegations could be heard and determined at the same time. The applicant submits that there would only need to be a single trial and a single judgment rather than the expenditure of the resources of the Court and of the parties in conducting two trials which would entail duplication and wastage of resources. In particular, the applicant submits that issues of credit in the two sets of claims would overlap.
In considering the application for an adjournment, it is necessary to take into account the overarching purposes of the civil practice and procedure provisions described in s 37M of the Federal Court of Australia Act1976 (Cth).
In Zetta Jet Pte Ltd v The Ship “Dragon Pearl” [2018] FCA 878, Burley J observed, in the context of a late application for adjournment of a trial:
37As the High Court made clear in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 (AON), the types of matters that should be considered in the context of an adjournment application include: (a) the explanation for the adjournment; (b) the detriment to other parties; (c) the detriment to the court and other litigants, and; (d) the choices made by the parties as to the claims to be made and how they are to be framed. That, of course, is not an exhaustive list.
38In the current context it is also apposite to note that in the exercise of its discretion it is appropriate for the Court also to consider the position of other litigants and confidence in the judicial system generally: AON at [5] (French CJ) and [111] (Gummow, Hayne, Crennan, Kiefel and Bell JJ). It is for the plaintiffs to persuade the Court, on sufficient material, that an adjournment is appropriate. As the plurality in AON said at [103], [106], [107], if an application that would result in an adjournment is sought and no, or no sufficient explanation is given then the application should be refused. French CJ said (at [4]) that where an application is made “late in the day”, without adequate explanation and necessitating the vacation of a trial date, the applicant bears a heavy burden to show that the exercise of the Court’s discretion should be in its favour.
I am not satisfied that the applicant has provided an adequate explanation for its delay in seeking to include the proposed causes of action and in applying for an adjournment. The applicant has failed to provide any explanation for why it failed to seek to pursue any causes of action held by the liquidators of the first, second and third respondents between 2019 and March 2022. The applicant has failed to provide an adequate explanation for what it did between March and August 2022 to pursue its request that the liquidators bring proceedings against the fifth respondent and for why it did not attempt to acquire the causes of action prior to August 2022. It has not provided an adequate explanation for delays between August 2022 and 17 October 2022 in negotiating any agreement with the liquidators.
There is only a partial overlap between the subject matter of the proceedings as presently constituted and the additional causes of action proposed to be added by the applicant. I am not satisfied that there will be any substantial saving of the resources of the Court or of the parties by granting an adjournment. On the other hand, there will certainly be a wastage of resources of the Court and the parties if the trial dates were vacated.
I am not satisfied that the applicant has discharged the heavy burden of showing why the trial dates should be vacated at this late stage. The application for an adjournment will be refused.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah. Associate:
Dated: 3 November 2022
SCHEDULE OF PARTIES
QUD 870 of 2018 Respondents
Fourth Respondent:
GRAHAM HENRY GORDON
Fifth Respondent:
LINDA ANNE GORDON
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