Rhind v Deliveroo Australia Pty Ltd (Administrators Appointed) - [2023] FedCFamC2G 50

Federal Circuit and Family Court of Australia
(DIVISION 2)
Rhind v Deliveroo Australia Pty Ltd (Administrators Appointed) [2023] FedCFamC2G 50

File number(s): CAG 38 of 2019

Judgment of: JUDGE W J NEVILLE

Date of judgment: 2 February 2023

Catchwords: INDUSTRIAL LAW – Practice and procedure – respondent company placed in voluntary administration while judgment reserved – administrators do not consent to judgment being delivered or any other step taking place in the litigation – no application made to seek leave of the court to proceed to deliver judgment – this court is not a relevant, superior court that could hear and determine such application – respondent company to be de-registered – no indication by anyone, including the applicant, that an application would be made to re-instate the company, which would be a pre-requisite to any aspect of the litigation proceeding or continuing – in the light of authority confirming that once administrators are appointed all actions involving the company are “frozen” or “quarantined”- court declining to deliver judgment, which would only relate to potential liability and could not be enforced because of the operation of s.440F of the Corporations Act 2001 (Cth) – consideration of the making/not making of “futile orders” – indicative orders noted to the effect that absent an application for reinstatement of the company within 12 months of the date of its de-registration, and relevant leave of a superior court sought to proceed with the matter, all outstanding applications will be dismissed under s.140 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).

Legislation:
Corporations Act 2001 (Cth) s.58AA, 440D, 440F, 440G, 601AH

Fair Work Act 2009 (Cth)

Federal Circuit and Family Court of Australia Act 2021 (Cth), s.140

Cases cited:
AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175

Australian Competition and Consumer Commission v Australian Securities and Investments Commission (2000) 174 ALR 688

Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2022) 96 ALJR 89; 398 ALR 404

Deliveroo Australia Pty Ltd v Diego Franco [2022] FWCFB 156

Foxcroft v Ink Group Pty Ltd (1994) 15 ACSR 203

Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2008) 244 ALR 161

Re Capital General Corporation Ltd (2001) ACSR 158

Workpac Pty Limited v Rossato (2021) 271 CLR 456

ZG Operations Australia Pty Ltd v Jamsek (2022) 96 ALJR 144; 398 ALR 603

Australian Securities and Investments Commission Regulatory Guide 83 regarding reinstatement of corporation

Division: Division 2 General Federal Law

Number of paragraphs: 33

Date of hearing: 5 – 6 November 2020, 5 September 2022

Place: Canberra

Counsel for the Applicant Mr M Gibian SC

Solicitors for the Applicant Michael Doherty Legal, Sydney

Counsel for the Respondent Mr M Felman KC

Solicitors for the Respondent MinterEllison, Melbourne

Solicitors for Administrators King & Wood Mallesons
ORDERS

CAG 38 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
JEREMY RHIND
Applicant

AND:
DELIVEROO AUSTRALIA PTY LTD (ADMINISTRATORS APPOINTED)
Respondent

order made…

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] FedCFamC2G 50
Decision Date

CaseChat Overview and Summary

The case of Rhind v Deliveroo Australia Pty Ltd (Administrators Appointed) involved Mr Rhind, a creditor, and Deliveroo Australia Pty Ltd, a company under administration. The dispute centred around the delivery of a reserved judgment and the utility of such a judgment in the context of the company's administration. The matter was heard in the Supreme Court of New South Wales. The court was tasked with determining whether the reserved judgment should be delivered, considering the impact of the statutory moratorium on court proceedings and the administration process.

The key legal issue was whether the court should proceed with delivering a reserved judgment in a case where the administrators of the company had objected to such an action. The court had to consider the statutory framework provided by the Corporations Act 2001, specifically the provisions that establish a moratorium on proceedings against a company in administration and the role of the administrators in managing creditor claims. The court also had to weigh the potential utility of delivering a reserved judgment against the administrative processes already in motion.

The court found that the reserved judgment, even if delivered, would have limited utility given that no orders could be made without the leave of the Court or the administrators' consent. The administrators had convened a second meeting of creditors, where a deed of company arrangement was approved, indicating that the administration process was progressing. The court accepted that delivering the reserved judgment would not aid in the adjudication of creditor claims, as all creditors, including Mr Rhind, could submit proofs of debt to be adjudicated by the administrators. The court therefore decided against delivering the reserved judgment.

In conclusion, the court ruled that delivering the reserved judgment would be of limited utility and did not require the administrators to do so to perform their statutory duties. The court's decision was based on the administrative processes already underway and the statutory framework governing the proceedings.

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

On 21st December 2022, the Administrator of the Respondent provided the following email (emphasis in original):Dear AssociatesThank you for your email. We act for the administrators of Respondent in the abovenamed proceeding. We acknowledge the authorities cited by the solicitors for the Applicant in their email of 13 December 2022. However, the highest the Applicant can put the proposition is that the authorities are conflicted on this question. For example, the Full Court of the Family Court decided in X Pty Ltd v Milstead [2015] FamCAFC 50 at [32]–[50] held that the moratorium in section 440D of the Corporations Act 2001 (Cth) (Corporations Act) does extend to preclude a court from delivering a judgment. Further, there is limited utility in His Honour delivering his reserved judgment in the following circumstances: (a) Regardless of whether judgment is delivered, no order can be made in the proceeding without leave of a Court or the administrators’ consent. The authorities are unequivocal on this point as was noted in the Applicant’s solicitor’s email (see for example two authorities referred to in the Applicant’s solicitor’s email of 13 December 2022: Re Tolco Pty Ltd [2016] NSWSC 1069 and Curnow Consulting Pty Ltd v JPD Media and Design Pty Ltd (No 3) [2018] NSWSC 82). (b) There has been no indication from the Applicant whether they intend to bring an application for leave to proceed, nor are we aware of any legal basis upon which leave to proceed ought to be granted. The administrators do not propose to provide their consent to any application for leave to proceed in such circumstances. As such, no orders can be made by this Court or enforced by the Applicant. (c) In any event, we understand that the judgment currently reserved by His Honour is only in respect of a preliminary issue, not the final decision, and so would be of limited utility, even if published. (d) As previously stated by solicitors for the Respondent, MinterEllison, the administrators do not require His Honour to deliver his reserved judgment in the proceeding in order to adjudicate creditor claims in accordance with their statutory duties contained in the Corporations Act. Mr Rhind can, like all creditors, submit a proof of debt, which will be adjudicated by the administrators in due course. (e) Finally, the statutory convening period for the Company ended on 14 December 2022 pursuant to section 439A(5) of the Corporations Act. Accordingly, the administrators were required to, and have, convened the second meeting of creditors in accordance with section 439A(2) of the Corporations Act on 21 December 2022. The report to creditors prepared by the administrators the Corporations Act and accompanying notice of meeting are attached to this email for reference. Please let us know if we can be of further assistance. … The Administrators further advised the Court as follows by email on 21st December 2023 (emphasis in original):Dear AssociatesWe confirm that during the second meeting of creditors of Deliveroo Australia Pty Ltd (administrators appointed) held this morning, a deed of company arrangement was approved by creditors. In accordance with the terms voted on by creditors, it is anticipated that the deed of company arrangement will executed in the coming days and will effectuate shortly thereafter. Following this, Deliveroo Australia Pty Ltd (administrators appointed) will be deregistered by its director. Please let us know if we can be of further assistance.

File number(s):	CAG 38 of 2019
Judgment of:	JUDGE W J NEVILLE
Date of judgment:	2 February 2023
Catchwords:	INDUSTRIAL LAW – Practice and procedure – respondent company placed in voluntary administration while judgment reserved – administrators do not consent to judgment being delivered or any other step taking place in the litigation – no application made to seek leave of the court to proceed to deliver judgment – this court is not a relevant, superior court that could hear and determine such application – respondent company to be de-registered – no indication by anyone, including the applicant, that an application would be made to re-instate the company, which would be a pre-requisite to any aspect of the litigation proceeding or continuing – in the light of authority confirming that once administrators are appointed all actions involving the company are “frozen” or “quarantined”- court declining to deliver judgment, which would only relate to potential liability and could not be enforced because of the operation of s.440F of the Corporations Act 2001 (Cth) – consideration of the making/not making of “futile orders” – indicative orders noted to the effect that absent an application for reinstatement of the company within 12 months of the date of its de-registration, and relevant leave of a superior court sought to proceed with the matter, all outstanding applications will be dismissed under s.140 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
Legislation:	Corporations Act 2001 (Cth) s.58AA, 440D, 440F, 440G, 601AH Fair Work Act 2009 (Cth) Federal Circuit and Family Court of Australia Act 2021 (Cth), s.140
Cases cited:	AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Australian Competition and Consumer Commission v Australian Securities and Investments Commission (2000) 174 ALR 688 Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2022) 96 ALJR 89; 398 ALR 404 Deliveroo Australia Pty Ltd v Diego Franco [2022] FWCFB 156 Foxcroft v Ink Group Pty Ltd (1994) 15 ACSR 203 Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2008) 244 ALR 161 Re Capital General Corporation Ltd (2001) ACSR 158 Workpac Pty Limited v Rossato (2021) 271 CLR 456 ZG Operations Australia Pty Ltd v Jamsek (2022) 96 ALJR 144; 398 ALR 603 Australian Securities and Investments Commission Regulatory Guide 83 regarding reinstatement of corporation
Division:	Division 2 General Federal Law
Number of paragraphs:	33
Date of hearing:	5 – 6 November 2020, 5 September 2022
Place:	Canberra
Counsel for the Applicant	Mr M Gibian SC
Solicitors for the Applicant	Michael Doherty Legal, Sydney
Counsel for the Respondent	Mr M Felman KC
Solicitors for the Respondent	MinterEllison, Melbourne
Solicitors for Administrators	King & Wood Mallesons

CAG 38 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	JEREMY RHIND Applicant
AND:	DELIVEROO AUSTRALIA PTY LTD (ADMINISTRATORS APPOINTED) Respondent