C & M ROOFING PTY LTD (ACN 137 883 473)	First Appellant
COHALAN & MITCHELL PTY LTD (ACN 168 857 805)	Second Appellant
and
COHALAN & MITCHELL ROOFING PTY LTD (IN LIQUIDATION) (ACN 081 599 528)	First Respondent
STEPHEN JOHN MICHELL (IN HIS CAPACITY AS LIQUIDATOR OF COHALAN & MITCHELL ROOFING PTY LTD (IN LIQUIDATION) (ACN 081 599 528))	Second Respondent

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JUDGE:	Sifris J
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	1 May 2020
CASE MAY BE CITED AS:	In the matter of Cohalan & Mitchell Roofing (in liquidation) (ACN 081 599 528)
MEDIUM NEUTRAL CITATION:	[2020] VSC 222

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CORPORATIONS – Winding up – Application for extension of time for filing voidable transaction proceedings – Change of Liquidator – Extension of time not granted – Consideration of delay in appropriate cases to include the entire period of delay and not only the period from when liquidator appointed – Unreasonable delay on behalf of Liquidator – Corporations Act 2001 (Cth) s 588FF(3)(b) – Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher (2015) 254 CLR 489, applied – BP Australia Ltd v Brown & Ors [2003] NSWCA 216, applied – Sub nom, Brown (2003) 58 NSWLR 322 – Re Clarecastle Pty Ltd (in liq) (2011) 255 FLR 435 applied.

PRACTICE AND PROCEDURE – Appeal from Associate Justice – Appeal relating to the exercise of discretion – Supreme Court (Corporations) Rules 2013 (Vic) r 16.5 – Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550, applied – House v King (1936) 55 CLR 499, applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr M Galvin QC Mr J Kohn	Frenkel Partners
For the Respondents	Mr G Moffatt	Mills Oakley Lawyers

HIS HONOUR:

A Introduction

This is an appeal from a decision of an Associate Judge (Reasons)[1] relating to whether the respondents (plaintiffs) ought to have been granted an extension of time for commencing any voidable transaction proceedings against the appellants (defendants). In his Reasons, the Associate Judge made an order pursuant to s 588FF(3)(b) of the Corporations Act 2001 (Cth) (Act) extending the time for filing any voidable transaction proceedings against the appellants to 19 June 2020.
[1]In the matter of Cohalan & Mitchell Roofing Pty Ltd (in liquidation) (Supreme Court of Victoria, Efthim AsJ, 14 June 2019) (Reasons).

The appellants contend that the Associate Judge erred in making that order.

B Background[2]

[2]The background, much of which is uncontroversial, is adopted from the Reasons of the Associate Judge.

Cohalan & Mitchell Roofing Pty Ltd (ACN 081 599 528) (in liquidation) (the Company) conducted a residential roofing business from February 1998 to 1 January 2015. Doug Mitchell was the director, secretary and 50% shareholder of the Company. Russell Cohalan owned the other 50%. On 20 November 2015,…

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 Re Cohalan & Mitchell Roofing (in liq)

Details

AGLC: In the matter of Cohalan & Mitchell Roofing (in liquidation) (ACN 081 599 528) [2020] VSC 222
Case: [2020] VSC 222
Decision Date: 1 May 2020

CaseChat Overview and Summary

The case of Re Cohalan & Mitchell Roofing (in liq) involved an application for an extension of time to file proceedings concerning a voidable transaction. The matter was heard in the Federal Court of Australia, with an appeal from an Associate Justice's decision. The liquidator of the company sought to extend the time limits for bringing voidable transaction proceedings, but this was opposed by various creditors.

The primary legal issue before the court was whether the delay in bringing the proceedings was unreasonable, thereby warranting an extension of the statutory time limit. The court also had to consider the appropriate period of delay to assess reasonableness, and whether it should include the entire period of delay or only the period from when the liquidator was appointed. The court applied established principles from previous cases such as Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher and BP Australia Ltd v Brown, which set out the criteria for assessing unreasonable delay.

In deciding the application, the court found that the liquidator had unreasonably delayed in bringing the proceedings. The entire period of delay, including the period before the liquidator was appointed, was considered in determining the reasonableness of the delay. The court concluded that the delay was unreasonable and denied the application for an extension of time. The appeal from the Associate Justice's decision was also dismissed, as the court found no error in the exercise of discretion by the Associate Justice. The court's decision was consistent with established principles in cases such as Robinson Helicopter Company Inc v McDermott and House v King.

The final orders of the court were that the application for an extension of time to file voidable transaction proceedings was dismissed, and the appeal from the Associate Justice's decision was also dismissed. The liquidator was not granted the extension of time sought, and the statutory time limits for bringing the proceedings remained in effect.

Orders