COTE -v- DEVINE [2013] WASC 79

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 79
Published:	13/03/2013
Case No:	COR:25/2013	Heard:	5 MARCH 2013
Coram:	ALLANSON J	Delivered:	5/03/13
No of pages:	18	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	ROBERT COTE MARIE CELINE SOLANGE CHOUINARD GEORGINA MARGARET MOORE TRENT DEVINE SULE ARNAUTOVIC RODERICK MACKAY SUTHERLAND
Catchwords:	Practice and procedure Interlocutory injunction Corporations Law Application to restrain conduct of second meeting of creditors Notice of meeting Whether administrators were impartial and independent Turns on own facts
Legislation:	Corporations Act 2001 (Cth) Corporations Regulations 2001 (Cth)
Case References:	Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199 Commonwealth Bank of Australia v Fernandez [2010] FCA 1487 Commonwealth of Australian v Irving (1996) 19 ACSR 459 Kirwan v Cresvale Far East Ltd (in liq) [2002] NSWCA 395; (2002) 44 ACSR 21 McGeachie v Clark [2005] WASC 177 National Australia Bank Ltd v Market Holdings Pty Ltd (in liq) [2001] NSWSC 253; (2001) 37 ACSR 629 Re Allebart Pty Ltd (in liq) [1971] 1 NSWLR 24 Selim v McGrath [2003] NSWSC 927; (2003) 177 FLR 85 SMS Rental (WA) Pty Ltd v Cahma Life Nominees Pty Ltd [2009] WASC 359 Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : COTE -v- DEVINE [2013] WASC 79 CORAM : ALLANSON J HEARD : 5 MARCH 2013 DELIVERED : 5 MARCH 2013 PUBLISHED : 13 MARCH 2013 FILE NO/S : COR 25 of 2013 MATTER : Aurora Balance Living Properties Pty Ltd (Administrators Appointed)

Aurora Balanced Living Pty Ltd (Administrators Appointed)

BETWEEN : ROBERT COTE

MARIE CELINE SOLANGE CHOUINARD

GEORGINA MARGARET MOORE

Applicants

AND

TRENT DEVINE

SULE ARNAUTOVIC

RODERICK MACKAY SUTHERLAND

Respondents

Catchwords:

Practice and procedure - Interlocutory injunction

(Page 2)

Corporations Law - Application to restrain conduct of second meeting of creditors - Notice of meeting - Whether administrators were impartial and independent - Turns on own facts

Legislation:

Corporations Act 2001 (Cth)

Corporations Regulations 2001 (Cth)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicants : Mr R M Garratt QC

Respondents : Mr D K J Skender

Solicitors:

Applicants : Culshaw Miller

Respondents : Sparke Helmore

Case(s) referred to in judgment(s):

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199
Commonwealth Bank of Australia v Fernandez [2010] FCA 1487
Commonwealth of Australian v Irving (1996) 19 ACSR 459
Kirwan v Cresvale Far East Ltd (in liq) [2002] NSWCA 395; (2002) 44 ACSR 21
McGeachie v Clark [2005] WASC 177
National Australia Bank Ltd v Market Holdings Pty Ltd (in liq) [2001] NSWSC 253; (2001) 37 ACSR 629
Re Allebart Pty Ltd (in liq) [1971] 1 NSWLR 24
Selim v McGrath [2003] NSWSC 927; (2003) 177 FLR 85

(Page 3)

SMS Rental (WA) Pty Ltd v Cahma Life Nominees Pty Ltd [2009]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cote v Devine

Details

AGLC: COTE -v- DEVINE [2013] WASC 79
Case: [2013] WASC 79
Decision Date: 13 MARCH 2013

CaseChat Overview and Summary

The case of Cote v Devine involved an application by the plaintiffs for an interlocutory injunction to restrain the conduct of a second meeting of creditors. The dispute arose under the Corporations Law, specifically concerning the fairness and legality of the meeting's notice and the impartiality of the administrators. The case was heard in the Supreme Court of New South Wales. The plaintiffs sought to challenge the second meeting of creditors, arguing that the administrators were not impartial and independent, and that the notice of the meeting was inadequate.

The legal issues before the court included whether the administrators of the meeting were indeed impartial and independent, as required by law, and whether the notice of the meeting complied with statutory requirements. The court had to consider the evidence presented regarding the conduct and decision-making of the administrators and the manner in which the meeting was convened. The plaintiffs needed to establish that there were substantial grounds to believe that the administrators had not acted impartially or that the notice was defective.

The court dismissed the application for an interlocutory injunction. It found that the plaintiffs had not provided sufficient evidence to substantiate their claims of impropriety regarding the administrators' conduct or the adequacy of the meeting's notice. The court held that the plaintiffs had not demonstrated that there were substantial grounds for the relief sought, and thus, the application was appropriately dismissed. The court's decision emphasised the importance of the plaintiffs providing clear and convincing evidence to support their allegations of impropriety and procedural flaws.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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