SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2021 0053
S EAPCI 2021 0071
| DAVID DJORDJEVICH | Applicant |
| v | |
| RICHARD TRYGVE ROHRT (in his capacity as liquidator of ACN 091 518 302 PTY LTD (in liq) ACN 091 518 302) | Respondent |
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| JUDGES: | KENNEDY and WHELAN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 21 March 2022 |
| DATE OF JUDGMENT: | 10 May 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 84 |
| JUDGMENTS APPEALED FROM: | [2021] VSC 178 (Delany J) Djordjevich v Rohrt [No 2] (Unreported, Supreme Court of Victoria, Delany J, 3 June 2021) |
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CORPORATIONS – Insolvency – Application for investigation into liquidation – Court’s powers to order inquiry – Grounds for appellate intervention – Whether judge wrong to adopt ‘three-stage process’ under current provisions – Whether also wrong to consider public interest factors – Whether new matters raised on appeal – New matters without substance in any event – Corporations Act 2001 (Cth), sch 2, cls 90-5, 90-10, 90-15, 90-20, s 536 (repealed) – ASIC vWily (2019) 137 ACSR 1, BL & GY International Co Ltd v Hypec Electronics Pty Ltd (2010) 79 ACSR 558, Hall v Poolman (2009) 75 NSWLR 99, considered – House v The King (1936) 55 CLR 499, applied – Leave to appeal granted on grounds 3 and 4 only – Appeal dismissed.
COSTS – Order made that costs to follow event on standard basis up to 15 December 2020 and thereafter on an indemnity basis – Application seeking leave to appeal costs order – No reviewable error in costs decision – Leave to appeal costs order refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr JG Levine | Maciel Pizzorno & Co |
| For the Respondent | Mr S Maiden QC with Ms C Gobbo | Mills Oakley |
TABLE OF CONTENTS
Introduction
The relevant legislation: the current provisions and their predecessor
The procedure under section 536 of the Act
The new matters raised on the application for leave to appeal
Grounds for appellate intervention
Relevant authorities on the new provisions
Nature of the applicant’s application and the course the applicant adopted
Consideration of proposed grounds 3 and 4 and the new issues raised
The Pinnacle proceeding
The Reasons
Other proposed grounds of appeal
Consideration of remaining proposed grounds of appeal
Conclusion
Application for leave to appeal the costs order
KENNEDY JA
WHELAN JA:[1]
Introduction
[1]The President determined this to be a matter in which two Judges of Appeal constitute and may exercise all the jurisdiction and powers of the Court of Appeal pursuant to s 11(1A) of the Supreme Court Act 1986.
The applicant instituted this proceeding seeking an order that the Court conduct an investigation into the liquidation of a company, ACN 091 518 302 Pty Ltd, formerly named Pinnacle Investments Pty Ltd (‘Pinnacle’), as well as orders that the liquidator, Mr Rohrt (the respondent), cease being the liquidator of that company, and that the respondent pay compensation.
The respondent’s administration of Pinnacle is Pinnacle’s second liquidation. It was placed in liquidation for the…
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- AGLC
- Djordjevich v Rohrt [2022] VSCA 84
- Case
- [2022] VSCA 84
- Decision Date
CaseChat Overview and Summary
The legal issues before the court involved the interpretation of the relevant provisions of the Corporations Act 2001 (Cth), specifically sections 90-5, 90-10, 90-15, 90-20, and 536 (repealed). The court needed to determine whether the judge had erred in adopting a three-stage process for the investigation and whether they should have considered public interest factors. The court also considered whether the appeal had raised new matters that had no substance. Relevant case law included ASIC v Wily, BL & GY International Co Ltd v Hypec Electronics Pty Ltd, and House v The King.
The court held that the judge had not erred in adopting the three-stage process, as it was consistent with the current provisions of the Corporations Act. The court further held that the judge had not erred in considering public interest factors, as they were relevant to the decision-making process. The court also found that no new matters had been raised on appeal and that any new matters raised did not have any substance. Consequently, the appeal was dismissed. The court also considered the application for leave to appeal the costs order and found that there was no reviewable error in the costs decision. Therefore, the application for leave to appeal the costs order was refused, and costs were ordered to follow the event on a standard basis up to 15 December 2020, and thereafter on an indemnity basis.
Orders
Orders of the court
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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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