Chamberlain v RG&H Investments Pty Limited, in the matter of Hardy Bros (Earthmoving) Pty Limited (in liq)

The case of Chamberlain v RG&H Investments Pty Limited, in the matter of Hardy Bros (Earthmoving) Pty Limited (in liq) was heard in the Supreme Court of New South Wales. The liquidator, Mr Chamberlain, sought approval for two agreements made with the Commissioner of Taxation (DCT) that were in breach of a statutory provision. The agreements, known as the First Indemnity and the Second Indemnity, were made without the necessary court or creditor approval as required by s 477(2B) of the Corporations Act 2001 (Cth). Mr Chamberlain argued that the delay in seeking approval was due to the DCT requesting a deferral while it reviewed funding agreements with liquidators, but the court found this explanation unsatisfactory.

The primary legal issue was whether Mr Chamberlain should be granted nunc pro tunc approval for entering into the agreements with the DCT. The court considered the statutory requirement for approval prior to entering into certain agreements and the consequences of Mr Chamberlain’s failure to comply. The court also examined Mr Chamberlain’s justification for his delay in seeking the required approval. The court noted that Mr Chamberlain had knowingly contravened the statutory requirement, and his explanation for the delay was inadequate. The court highlighted that Mr Chamberlain treated the DCT’s request as overriding the statutory mandate, despite being aware of his obligation to seek approval.

The court determined that there were too many uncertainties to confidently grant the relief sought by Mr Chamberlain. The explanations provided for the delay in seeking approval were insufficient, and the court was not convinced that granting approval nunc pro tunc would be just. The matter was adjourned to allow for further evidence to address the issue of delay. The court acknowledged that the directors, through their solicitors, did not object to the DCT being given priority to the extent of the claimed amount.

The court ordered that the proceeding be adjourned to Wednesday 4 November 2009, to allow for any further evidence concerning Mr Chamberlain’s delay in seeking approval to be filed and served.