Shafston Avenue Construction Pty Ltd v McCann

Shafston Avenue Construction Pty Ltd and Rimfire Constructions Pty Ltd appealed against the decision of the primary judge to refuse their application to terminate a deed of company arrangement (DOCA) under section 445D(1) of the Corporations Act 2001 (Cth). The primary judge had found that there was not a likely prospect of the creditors of the company receiving a better outcome in the liquidation of the company. The appellants argued that the primary judge had erred in making certain factual findings and in the exercise of his discretion. The appeal also included a new point on appeal, which the appellants sought to rely on certain Australian cases to support the proposition that the requirement of reciprocity (for recognition of an Australian judgment in China) would be satisfied.

The court rejected each of the appellants’ grounds of appeal and dismissed the appeal. The court found that the primary judge had not erred in making factual findings or in the exercise of his discretion. The court also found that the new point on appeal amounted to a new point on appeal and that the appellants should not have leave to make the submission. The court ordered that the appeal be dismissed and that the appellants pay the respondents’ costs of the appeal. The court also gave the appellants a short period of time to file a submission if they wished to seek a different costs order in relation to the interlocutory application.

The court held that the primary judge had not erred in finding that there was not a likely prospect of the creditors of the company receiving a better outcome in the liquidation of the company. The court found that the administrators had recommended that it would be in creditors’ best interests for the company to execute a DOCA due to the risks highlighted in enforcing the Deed of Covenant along with the level of a return and timing under a DOCA. The court also held that the new point on appeal amounted to a new point on appeal and that the appellants should not have leave to make the submission.

The court ordered that the appeal be dismissed and that the appellants pay the respondents’ costs of the appeal. The court also gave the appellants a short period of time to file a submission if they wished to seek a different costs order in relation to the interlocutory application. The court found that the primary judge had not erred in making factual findings or in the exercise of his discretion and that the new point on appeal amounted to a new point on appeal and that the appellants should not have leave to make the submission.