Graham v GT Capital Partners - [2023] WASC 163

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   GRAHAM -v- GT CAPITAL PARTNERS [2023] WASC 163
CORAM:   HILL J
HEARD:   15 MAY 2023
DELIVERED          :   15 MAY 2023
PUBLISHED           :   19 MAY 2023
FILE NO/S:   COR 73 of 2023
BETWEEN:   COLIN JAMES GRAHAM
Plaintiff

AND

GT CAPITAL PARTNERS
First Defendant

SIMON GUY THEOBALD AND ROBERT SCOTT DITRICH AS DEED ADMINISTRATORS OF GT CAPITAL PARTNERS PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT)
Second Defendant

ANTHONY JOHN DALE
Third Defendant

BRUCE JOHN FIELDING
Fourth Defendant

M2 ASSETS PTY LTD
Interested Party

Catchwords:

Corporations - Insolvency - Deed of company arrangement - Application for interlocutory application to prevent effectuation of deed of company arrangement - Whether serious question to be tried that deed of company arrangement should be terminated - Balance of convenience - Effect of delay - Injunction refused

Legislation:

Corporations Act 2001 (Cth), s 436B, s 447A, s 445D, s 445G, s 446AA, sch 2, s 90-15

Result:

Plaintiff's application for injunction refused

Category: B

Representation:

Counsel:

Plaintiff	:	In Person
First Defendant	:	F F Xue
Second Defendant	:	J Black
Third Defendant	:	F F Xue
Fourth Defendant	:	F F Xue
Interested Party	:	W C J Zappia

Solicitors:

Plaintiff	:	In Person
First Defendant	:	CX Law
Second Defendant	:	Norton Rose Fulbright
Third Defendant	:	CX Law
Fourth Defendant	:	CX Law
Interested Party	:	McNally & Co

Cases referred to in decision:

Britax Childcare Pty Ltd v Infa Products Pty Ltd [2016] FCA 848; (2016) 115 ACSR 322
Fleet Broadband Holdings Pty Ltd v Paradox Digital Pty Ltd [2005] WASC 261; (2005) 228 ALR 598
Habrok (Dalgaranga) Proprietary Limited v Gascoyne Resources Limited [2020] FCA 1395
Hamilton v National Australia Bank Ltd (1996) 66 FCR 12
Jaddcal Pty Ltd v Minson [2011] WASC 28
Lam Soon Australia Pty Ltd (Administrators Appointed) v Molit (No 55) Pty Ltd [1996] FCA 899; (1996) 70 FCR 34; 22 ACSR 169
Shafston Avenue Construction Pty Ltd v McCann [2019] FCA 1426; (2019) 138 ACSR 299
Traivelog Pty Ltd v Electro Metals Technologies Ltd (Subject to a Deed of Company Arrangement) [2015] QSC 27

HILL J:

(This judgment was delivered extemporaneously and has been edited from the transcript.)

On 15 May 2023, the plaintiff filed an originating process and an interlocutory process against GT Capital Partners Pty Ltd (subject to Deed of Company Arrangement) (GT Capital), the deed administrators of GT Capital, Mr Anthony Dale and Mr Bruce Fielding. In his originating process, the plaintiff seeks orders under s 445D, s 445G, s 447A and s 446AA of the Corporations Act 2001 (Cth) (Act), further and alternatively s 90-15 and s 90-20 of the Insolvency Practice Schedule (Corporations) Schedule 2 to the Act terminating a deed of company arrangement (DOCA) entered into on 15 February 2023 and seeks orders that GT Capital Partners be wound up.
The interlocutory process seeks orders extending the effectuation date of the DOCA until these proceedings…

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.

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Details

Case: [2023] WASC 163
Decision Date

CaseChat Overview and Summary

Colin James Graham filed an originating process and an interlocutory process against GT Capital Partners, its deed administrators, Mr Anthony Dale, Mr Bruce Fielding, and M2 Assets. The plaintiff sought to terminate a deed of company arrangement (DOCA) entered into by GT Capital on 15 February 2023 and sought orders that GT Capital be wound up. The interlocutory process sought to extend the effectuation date of the DOCA and to restrain the deed administrators from implementing it. The plaintiff's application was heard on an urgent basis on 15 May 2023, the date the DOCA was to effectuate. The plaintiff contended that the DOCA was unfairly discriminatory, contrary to public interest, and offended commercial morality. The plaintiff also raised additional matters during the course of the hearing. The application was opposed by all defendants, and M2 was given leave to be heard. The court had to decide whether the plaintiff had raised a serious question to be tried and, if so, whether the balance of convenience favoured the grant of an injunction. The court found that the plaintiff had not raised a sufficient basis to conclude that the information provided to creditors was misleading or that the reports were materially misleading. The court also found that the balance of convenience did not favour the grant of an injunction due to the significant delay between the date the DOCA was signed and the date the plaintiff commenced these proceedings. The plaintiff's interlocutory application was dismissed.

No orders were made as the interlocutory application was dismissed.

Orders