McMillan v Coolah Home Base (No 2) [2020] NSWSC 1243

McMillan v Coolah Home Base (No 2) [2020] NSWSC 1243

Leave should be granted to continue the three existing proceedings because there was a serious dispute, the issues affected the plaintiffs' living arrangements and refusal would disadvantage them, the deed administration was effectively at an end with control reverted to the directors, and there was nothing to suggest the Deed Administrators would be unreasonably distracted. Leave was not granted in broader terms for future proceedings because any such proceedings would require a fresh application if the company remained under a DOCA.

Jurisdiction
Australia
Judgment Date
14 September 2020
Procedural Posture
Application for Leave Pursuant to S 444 E(3)(c) of the Corporations Act 2001 (cth) to Continue Proceedings Against a Company Subject to a Deed of Company Arrangement / On the Papers; Procedural and Other Ruling
Outcome
Leave granted in part; plaintiffs' costs of the motion ordered to be plaintiffs' costs in the cause.
Legal Topics
['voluntary Administration' 'deed of Company Arrangement' 'statutory Stay of Proceedings' 'leave to Proceed Against Company Under Doca' 'retirement Villages']
['corporations' 'equity' 'civil Procedure'] ['voluntary Administration' 'deed of Company Arrangement' 'statutory Stay of Proceedings' 'leave to Proceed Against Company Under Doca' 'retirement Villages']

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Procedural Posture

Application for Leave Pursuant to S 444 E(3)(c) of the Corporations Act 2001 (cth) to Continue Proceedings Against a Company Subject to a Deed of Company Arrangement / On the Papers; Procedural and Other Ruling

Legal Issues

  1. 1 ['Whether leave should be granted under s 444E(3)(c) of the Corporations Act 2001 (Cth) to continue existing proceedings against Coolah Home Base Pty Ltd while it remained subject to a deed of company arrangement.' 'Whether leave should extend more broadly to permit the plaintiffs to commence new proceedings against Coolah Home Base Pty Ltd in any court or tribunal if required.']

Ratio Decidendi

Leave should be granted to continue the three existing proceedings because there was a serious dispute, the issues affected the plaintiffs' living arrangements and refusal would disadvantage them, the deed administration was effectively at an end with control reverted to the directors, and there was nothing to suggest the Deed Administrators would be unreasonably distracted. Leave was not granted in broader terms for future proceedings because any such proceedings would require a fresh application if the company remained under a DOCA.

Court Disposition

Leave granted in part; plaintiffs' costs of the motion ordered to be plaintiffs' costs in the cause.

Orders

  • ['Grant leave to the plaintiffs (or some of them as the case may be) pursuant to s 444E(3)(c) of the Corporations Act 2001 (Cth) to continue the following proceedings against the first defendant (on the condition that the plaintiffs do not seek to enforce any judgment obtained against the first defendant without...