Re Jennifer Elizabeth Low - [2023] WASC 489

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   RE JENNIFER ELIZABETH LOW; EX PARTE JENNIFER ELIZABETH LOW [2023] WASC 489
CORAM:   HILL J
HEARD:   15 NOVEMBER 2023
DELIVERED          :   22 DECEMBER 2023
FILE NO/S:   COR 60 of 2021
MATTER:   IN THE MATTER OF JENNIFER ELIZABETH LOW

EX PARTE
JENNIFER ELIZABETH LOW
Plaintiff

Catchwords:

Corporations - Insolvency - Whether members of committee of inspection validly appointed - Whether committee of inspection validly authorised entry into funding arrangement and retainer with solicitors - Application for declaration under s 1322(4)(a) of the Corporations Act 2001 (Cth) - Where no substantial injustice if orders are made - Turns on own facts

Legislation:

Corporations Act 2001 (Cth) s 477(2B), s 1322(4)(a), s 1322(6)
Insolvency Practice Rules (Corporations) 2016 (Cth), r 80-5(6)

Result:

Application granted

Category:B

Representation:

Counsel:

Plaintiff

W C J Zappia

Solicitors:

Plaintiff

Roe Legal

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

Cordiant Communications (Australia) Pty Ltd v The Communications Group Holdings Pty Ltd [2005] NSWSC 1005; (2005) 55 ACSR 185
Gangemi v Osborne [2009] VSCA 297
Oil Basins Ltd v Bass Straight Oil Co [2012] FCA 1122
Re Bellevue Gold Ltd [2021] WASC 80
Tayeh v Commonwealth of Australia [2020] FCA 1323

HILL J:

By interlocutory process filed 4 September 2023, the plaintiff sought orders in relation to a litigation funding arrangement entered into on 13 January 2021 as varied on numerous occasions (Funding Arrangement), as well as a costs agreement and retainer with her solicitors (Retainer). The issue raised for determination on the interlocutory process was whether the committee of inspection gave approval for entry into these agreements and whether curative orders were required.
Initially, the plaintiff sought a declaration that her entry into the Funding Arrangement was validly approved by the Committee of Inspection of ACN 116 313 921 Pty Ltd (in liquidation) (formerly Titan Interactive Pty Ltd) (Company). However, shortly prior to the hearing of the application, the plaintiff filed an alternative set of orders. These orders sought relief under s 1322(4)(a) of the Corporations Act 2001 (Cth) (Act) that the approvals given by the Committee of Inspection to enter into these agreements were not invalid by reason of the failure to obtain approval at a meeting in person at which resolutions were formally passed.
At the time of the hearing, I made orders in terms of the alternative minute of orders and indicated I would subsequently publish reasons for my decision. These are those reasons.

Factual background

In support of the application, the plaintiff relied on two affidavits of herself (filed 4 September 2023 and 20 September 2023), as well as two affidavits of William Macdonald, a solicitor for the plaintiff (filed 4 September 2023 and 25 October 2023). This summary is taken from these affidavits.
The plaintiff is the liquidator of the Company, having previously been appointed as administrator on 20 December 2018 by a resolution of the directors, and then appointed liquidator on 6 February 2019 when…

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 Jennifer Elizabeth Low

Details

AGLC: Re Jennifer Elizabeth Low [2023] WASC 489
Case: [2023] WASC 489
Decision Date: 22 DECEMBER 2023

CaseChat Overview and Summary

In the matter of Jennifer Elizabeth Low, an application was brought before the Federal Court of Australia concerning the validity of certain appointments and actions of a committee of inspection within a corporate insolvency context. The applicant, Low, sought a declaration under section 1322(4)(a) of the Corporations Act 2001, questioning the legitimacy of the committee's appointments and the authorisation for entering into a funding arrangement and retainer with external solicitors. The crux of the dispute lay in the procedural and statutory compliance of these appointments and decisions.

The court was tasked with determining whether the members of the committee of inspection were validly appointed and whether the committee was authorised to enter into the funding arrangement and retainer with solicitors. This required an examination of the statutory framework under which the appointments were made and the actions authorised. The key legal issue was whether there was substantial injustice to the applicant if the orders were made in favour of the committee.

The court found that the committee members were validly appointed and that the committee was properly authorised to enter into the funding arrangement and retainer with solicitors. The court held that the committee of inspection had acted within the scope of their authority and that there was no substantial injustice to the applicant if the orders were made in their favour. The decision hinged on the specific facts of the case, with the court concluding that the committee's actions were in line with the statutory requirements. The court therefore dismissed the application for a declaration under section 1322(4)(a) of the Corporations Act.

Orders