Modscape Holdings Pty Ltd v Caspaney, in the matter of ACN 122 909 040 Pty Ltd (in liq) (formerly Modscape Pty Ltd) [2019] FCA 2137

Modscape Holdings Pty Ltd v Caspaney, in the matter of ACN 122 909 040 Pty Ltd (in liq) (formerly Modscape Pty Ltd) [2019] FCA 2137

Paragraph 4 of the Primary Judge's Orders was not inconsistent with r 75-85(2) of the Insolvency Practice Rules (Corporations) 2016. Rule 75-85(2) gives each creditor one opportunity to vote, while r 75-115 provides for voting by both number and value where a poll is demanded. The order allowing creditors other than RSAM Investment Trust to vote in number and in proportion to the amounts recorded in the Liquidator's report reflected that statutory voting mechanism. There was therefore no basis to vary the orders under r 39.05 and the Primary Judge's Orders were not attended by sufficient doubt to warrant leave to appeal.

Jurisdiction
Australia
Judgment Date
16 December 2019
Procedural Posture
Application to Vary Interlocutory Orders and Application for Leave to Appeal From Interlocutory Orders in a Corporate Insolvency Proceeding / Commercial and Corporations Duty Judge Hearing; Applications Dismissed
Outcome
The Liquidator's interlocutory application to vary the Primary Judge's Orders and application for leave to appeal were dismissed; the proposed intervener's application for leave to intervene was refused; the Liquidator was ordered to pay the Relevant Creditors' costs.
Legal Topics
['variation of Interlocutory Orders' 'leave to Appeal From Interlocutory Decision' 'creditor Meetings in Liquidation' 'voting Entitlement and Voting Value at Meetings of Creditors' 'external Administrator Convening Meeting of Creditors']
['practice and Procedure' 'corporations and Corporate Insolvency' 'insolvency'] ['variation of Interlocutory Orders' 'leave to Appeal From Interlocutory Decision' 'creditor Meetings in Liquidation' 'voting Entitlement and Voting Value at Meetings of Creditors' 'external Administrator Convening Meeting of Creditors']

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Procedural Posture

Application to Vary Interlocutory Orders and Application for Leave to Appeal From Interlocutory Orders in a Corporate Insolvency Proceeding / Commercial and Corporations Duty Judge Hearing; Applications Dismissed

Legal Issues

  1. 1 ["Whether paragraph 4 of the Primary Judge's Orders should be varied under r 39.05 of the Federal Court Rules 2011 (Cth)." "Whether the Primary Judge's Orders were inconsistent with r 75-85(2) of the Insolvency Practice Rules (Corporations) 2016 (Cth)." 'Whether the interlocutory decision was attended by sufficient doubt to warrant reconsideration by the Full Court for the purpose of leave to appeal.' 'Whether substantial injustice would result if leave to appeal were refused, supposing the decision to be wrong.']

Ratio Decidendi

Paragraph 4 of the Primary Judge's Orders was not inconsistent with r 75-85(2) of the Insolvency Practice Rules (Corporations) 2016. Rule 75-85(2) gives each creditor one opportunity to vote, while r 75-115 provides for voting by both number and value where a poll is demanded. The order allowing creditors other than RSAM Investment Trust to vote in number and in proportion to the amounts recorded in the Liquidator's report reflected that statutory voting mechanism. There was therefore no basis to vary the orders under r 39.05 and the Primary Judge's Orders were not attended by sufficient doubt to warrant leave to appeal.

Court Disposition

The Liquidator's interlocutory application to vary the Primary Judge's Orders and application for leave to appeal were dismissed; the proposed intervener's application for leave to intervene was refused; the Liquidator was ordered to pay the Relevant Creditors' costs.

Orders

  • ["VID 753 of 2019: The defendant's interlocutory application dated 13 December 2019 is dismissed." "VID 753 of 2019: The defendant pay the plaintiffs' costs of and incidental to that application." 'VID 1354 of 2019: The application for leave to appeal is dismissed.' "VID 1354 of 2019: The applicant pay the...