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Djordjevich v Rohrt

Djordjevich v Rohrt

Case [2022] VSCA 84 10 May 2022

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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New matters without substance in any event – Corporations Act 2001 (Cth), sch 2, cls 90-5, 90-10, 90-15, 90-20, s 536 (repealed) – ASIC vWily (2019) 137 ACSR 1, BL & GY International Co Ltd v Hypec Electronics Pty Ltd (2010) 79 ACSR 558, Hall v Poolman (2009) 75 NSWLR 99, considered –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…

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 Djordjevich v Rohrt

Details

AGLC: Djordjevich v Rohrt [2022] VSCA 84
Case: [2022] VSCA 84
Decision Date: 10 May 2022

CaseChat Overview and Summary

The matter of Djordjevich v Rohrt before the court involved an application by Djordjevich for an investigation into the liquidation of a company. The application was initially heard by a judge of the Federal Court, who decided to follow a three-stage process and considered public interest factors in the decision. The decision was subsequently appealed, with the primary focus being on whether the judge had correctly applied the law in deciding to use a three-stage process and whether they should have considered public interest factors. Additional issues included whether new matters were raised on appeal and if they had any substance.

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