Colbran, in the matter of Balsub Pty Ltd (in liquidation)
[2023] FCA 1635
•19 December 2023
FEDERAL COURT OF AUSTRALIA
Colbran, in the matter of Balsub Pty Ltd (in liquidation) [2023] FCA 1635
File number(s): VID 517 of 2023 Judgment of: MCEVOY J Date of judgment: 19 December 2023 Catchwords: BANKRUPTCY AND INSOLVENCY – Application under s 90–15 of the Insolvency Practice Schedule (Corporations) contained in Schedule 2 of the Corporations Act 2001 (Cth) – Where there is no contradictor despite liquidator’s reasonable efforts – Where liquidator is justified and acting reasonably in proceeding on the basis that proceeds of cause of action under s 588M of the Corporations Act 2001 (Cth) are to applied in discharge of debts, claims or expenses irrespective of whether they were incurred by a company in its own right or in its capacity as trustee – Principle of pari passu or “equal sharing” in Australia and other comparable jurisdictions – Where liquidator is acting in accordance with the priorities prescribed by ss 556 and 555 of the Corporations Act 2001 (Cth) – Where it is appropriate for the court to make the directions sought – Where liquidator’s remuneration, costs and disbursements of application are to be paid from the assets of the company and the trust on an indemnity basis. Legislation: Corporations Act 2001 (Cth) ss 553, 555, 556, 560, 588M, 588R, 588T, 588Y, 596A, 596B; Sch 2, ss 90-15, 90-20; ss 447D, 479 and 511
Companies Code 1981 (Cth) s 556
Corporations Law 1991 (Cth) s 592
Corporate Law Reform Act 1992 (Cth) s 111
Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG
Companies Act 1993 (NZ) ss 135, 136
Insolvency Act 1986 (UK) s 214
Cases cited: Bastion v Gideon Investments Pty Ltd (in liq) (No 2) (2000) 35 ACSR 466; [2000] NSWSC 939; [2000] NSWSC 959 (No 2)
Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth (2019) 268 CLR 524; [2019] HCA 20
Commonwealth Bank of Australia v Friedrich (1991) 5 ACSR 115
Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113; [2003] NSWCA 91
Eden v Bignell [2007] NSWSC 1122
Elfic Ltd v Macks (2003) 2 Qd R 125; [2001] QCA 219
El-Saafin v Franek (No 2) [2018] VSC 683
Federal Commissioner of Taxation v ACN 154 520 199 Pty Ltd (in liq) [2017] FCA 444
Gusdote Pty Ltd v North Queensland Land Development Pty Ltd (No 4) [2012] FCA 759
In the matter of Dalma No 1 Pty Ltd (in Liquidation) (2013) 279 FLR 80; (2013) 95 ACSR 641; [2013] NSWSC 1335
Joiner (Liquidator), in the matter of CuDeco Limited (Receivers and Managers Appointed) (in liq) [2020] FCA 1661
Krejci, in the matter of Union Standard International Group Pty Ltd (Administrators Appointed) (No 2) [2020] FCA 1111
Lerinda Pty Ltd v Laertes Investments Pty Ltd as Trustee for Ap-Pack Deveney Unit Trust [2010] 2 Qd R 312
Lewis and Templeton v LG Electronics Australia Pty Ltd (No 2) (2016) 308 FLR 100; (2016) 111 ACSR 538; [2016] VSC 63
Lo v Nielsen & Moller Autoglass (NSW) Pty Ltd [2008] NSWSC 407; (2008) 26 ACLC 497
Mitchell Warren Ball (in his capacity as official liquidator of Wealthfarm Group Services) v Nicholas Quinn Sinclair [2015] NSWSC 2103
One T Development Pty Ltd v Krejci (in his capacity as liquidator of ENA Development Pty Ltd) [2023] NSWCA 120
Perrine v Carrello [2017] WASCA 151
Primespace Property Investment Ltd (in liq), Re [2018] NSWSC 919
Re 7 Steel Distribution Pty Ltd (in liq) (recs and mgrs apptd) [2013] NSWSC 669
Re ACN 167 984 045 Pty Ltd (in liq) [2021] VSC 652
Re Ansett Australia Ltd and Korda (2002) 115 FCR 409; 40 ACSR 433; [2002] FCA 90
Re Equiticorp Australia Ltd (in liq) [2020] NSWSC 143
Re G B Nathan & Co Pty Ltd (in liq) (1991) 24 NSWLR 674; (1991) 5 ACSR 673
Re Hawden Property Group Pty Ltd (ACN 003 528 345) (in liq) (2018) 125 ACSR 355; [2018] NSWSC 481
Re Movitor Pty Ltd (In Liquidation) (1996) 64 FCR 380; (1996) 136 ALR 643
Re MUTTON (in his capacity as liquidator of Balsub Pty Ltd (in liq) (ACN 109 715 853)) and Another (2020) 145 ACSR 342; [2020] FCA 741
Re One. Tel Ltd and Others (2014) 99 ACSR 247; [2014] NSWSC 457
Re Reidy (in their capacity as administrators of eCHOICE Ltd) (admins apptd) [2017] FCA 1582
Re S&D International Pty Ltd (in liq) (No 7) (2012) 92 ACSR 38; [2012] VSC 551
Re Sparks, IG Energy Holdings (Australia) Pty Ltd [2023] FCA 538
Re University Co-Operative Bookshop LTD (admins apptd) (No 2) (2020) 142 ACSR 607; [2020] NSWSC 97
Re Walley [2017] FCA 486
Re Woodhouse (in their capacities as joint and several liquidators of Forex Capital Trading Pty Ltd (in liq) (ACN 119 086 270)) (2022) 159 ACSR 669; [2022] FCA 600
Taylor v Rudaks (2007) 166 FCR 451; [2007] FCA 1962
Tolcher v National Australia Bank Ltd (2003) 174 FLR 251; (2003) 44 ACSR 727; (2003) 21 ACLC 587; [2003] NSWSC 207
Treloar Constructions (2017) 318 FLR 58; (2017) 120 ACSR 130; [2017] NSWCA 72
Brooks v Armstrong [2016] EWHC 2893; [2017] B.C.C. 99
BTI 2014 LLC v Sequana SA [2022] UKSC 25; [2023] B.C.C. 32
Madsen-Ries (as liquidators of Debut Homes Ltd (in Liq) v Cooper [2020] 1 NZLR 43
Re Continental Assurance Co of London Plc [2001] B.P.I.R. 862
Re Purpoint Ltd [1991] BCLC 491; [1991] B.C.C.
Re Ralls Builders Ltd (in Liq) [2016] EWHC 243 (Ch)
Re William C Leitch Brothers Ltd (No 2) [1933] Ch 261 (Ch)
Yan v Mainzeal Property and Construction Ltd (In Liq) [2019] NZHC 255; [2021] 3 NZLR 598; [2023] NZSC 113
Australian Law Reform Commission, General Insolvency Inquiry, Report No 45 (1988)
Division: General Division Registry: Victoria National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Number of paragraphs: 82 Date of last submission/s: 22 November 2023 Date of hearing: 10 November 2023 Counsel for the Plaintiffs: Ms Vicki Bell Solicitor for the Plaintiffs: Mills Oakley ORDERS
VID 517 of 2023 IN THE MATTER OF BALSUB PTY LTD (ACN 109 715 853) (IN LIQUIDATION)
JONATHAN KINGSLEY COLBRAN IN HIS CAPACITY AS LIQUIDATOR OF BALSUB PTY LTD (ACN 109 715 853)
First Plaintiff
BALSUB PTY LTD (ACN 109 715 853) (IN LIQUIDATION) IN ITS OWN RIGHT AND AS TRUSTEE FOR THE BALMS FAMILY TRUST (ABN 30 171 425 659)
Second Plaintiff
ORDER MADE BY:
MCEVOY J
DATE OF ORDER:
19 DECEMBER 2023
THE COURT ORDERS THAT:
1.Pursuant to s 90-15 of the Insolvency Practice Schedule (Corporations), being Schedule 2 to the Corporations Act 2001 (Cth), the first plaintiff (the Liquidator) is justified and acting reasonably in proceeding on the basis that proceeds of the Liquidator’s cause of action under s 588M of the Corporations Act are to be applied by the Liquidator in discharge of debts, claims, or expenses of the second plaintiff (the Company) (within the meaning of ss 553 or 556 of the Corporations Act):
(a)irrespective of whether such debts, claims, or expenses were incurred by the Company in its own right or in its capacity as trustee of the Balms Family Trust (Trust); and
(b)in accordance with the priorities prescribed by ss 556 and 555 of the Corporations Act.
2.The Liquidator’s remuneration, costs and disbursements (including legal costs) of this application be paid from the assets of the Company and Trust on an indemnity basis in accordance with s 556 of the Corporations Act.
3.Subject to order 4, the reasons for judgment delivered on 19 December 2023 be published with paragraphs 5, 26, 27, 28 and parts of paragraphs 42 and 49 redacted.
4.Unless the Court otherwise orders, the unredacted reasons be suppressed and not published other than to the plaintiffs and their legal representatives.
THE COURT NOTES THAT:
A.On 18 October 2023, the Court ordered, pursuant ss 37AF(1)(a) and (b)(iv) and 37AG(1)(a) and (c) of the Federal Court of Australia Act 1976 (Cth), the words in the plaintiffs’ outline of submissions dated 22 September 2023 identified in Annexure 1 to, and the annexure, be kept confidential and be prohibited from disclosure to any person other than the Court, the plaintiffs and their legal representatives.
B.The ground for orders 3 and 4 above is that they are necessary to prevent prejudice to the proper administration of justice.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MCEVOY J:
By originating process filed 11 July 2023, the plaintiffs seek a direction pursuant to s 90-15 of the Insolvency Practice Schedule (Corporations) (IPS) contained in Schedule 2 of the Corporations Act 2001 (Cth), that the first plaintiff (the Liquidator) is justified and acting reasonably in proceeding on the basis that the proceeds of his cause of action under s 588M(2) of the Corporations Act (the Proceeds) are to be applied in discharge of debts, claims, or expenses of the second plaintiff (the Company) (within the meaning of ss 553 or 556 of the Corporations Act):
(a)irrespective of whether such debts, claims, or expenses were incurred by the Company in its own right or in its capacity as trustee of the Balms Family Trust (the Trust); and
(b)in accordance with the priorities prescribed by ss 556 and 555 of the Corporations Act,
(the Proposed Direction).
The plaintiffs rely on two affidavits of Jonathon Kingsley Colbran (the Liquidator) affirmed on 7 July 2023, one of which was filed on an open basis and another in respect of which the Court has made a confidentiality order; and a service affidavit of Nikita Angelakis affirmed on 24 August 2023. The plaintiffs rely also on detailed written submissions dated 18 October 2023 and a further note dated 22 November 2023. I have drawn upon both these documents in the preparation of these reasons.
For the reasons that follow the plaintiffs will have the directions and orders sought in the originating process.
THE APPLICATION
The Proposed Direction raises the question of whether the proceeds of an insolvent trading claim ought to be treated as a trust asset in circumstances where the Company incurred liabilities both in its own capacity and as trustee. The Liquidator’s position is that the claim is an asset which ought to be made available to all creditors of that Company, irrespective of the capacity in which the Company incurred its debts.
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In substance the Liquidator’s submission is that s 588M(2) of the Corporations Act embodies a principle of pari passu or “equal sharing”. It is contended that the section was intentionally re-drawn to ensure that all creditors share equally in sums recovered by any action brought by a liquidator. To that end, s 588M(2) does not require the liquidator to differentiate between creditors whose debts arose before and after insolvency for the purposes of distributing the proceeds of an insolvent trading claim. Similarly, the Liquidator submits that the conclusion that the proceeds are payable to all creditors, irrespective of the capacity in which their debts were incurred, is consistent with both the text of the Corporations Act and the “equal sharing” principle that underpins s 588M, and the corporate insolvency regime more generally.
The Liquidator submits further that if trust creditors were to be treated differently, before paying any distribution from a liquidator’s claim it would be necessary to identify not only which debts were incurred by the company in a trustee capacity, but also which debts were incurred in that capacity whilst insolvent. The Liquidator asserts that this would not be practical and is not contemplated by s 588M.
The Liquidator says that despite his reasonable efforts he has not been able to elicit a contradictor to appear on the application. For reasons I will outline I accept, as the Liquidator submits, that the notice given to significant creditors and interested parties means that it is appropriate to grant the Proposed Direction in the absence of a contradictor.
FACTUAL BACKGROUND
The Company
The Company was incorporated on 24 June 2004. Since incorporation the sole director, shareholder, and secretary of the Company has been Mr Bradley Alastair Marks.
On 25 June 2004, the Trust was established pursuant to the Balms Family Trust Deed. Prior to its winding up, the Company operated both in its own capacity and as trustee. In particular, the Company:
(a)operated Subway restaurant franchises in Victoria in its capacity as trustee of the Trust (and through the ABN 30 171 425 659); and
(b)employed employees who worked at the various Subway restaurants in its own right (and through the ABN 77 109 715 853).
Appointment to the Company
On 26 July 2019, the Company was wound up on a petition brought by the Deputy Commissioner of Taxation and pursuant to an order of this court. Mr David Mutton was appointed as the Company’s liquidator at this time.
Mr Mutton identified that the Trust Deed contained an “ipso facto” clause disqualifying the Company from acting as trustee of the Trust upon its liquidation and formed the view that the Company had become bare trustee of any assets of the Trust.
Mr Mutton made an application to this court by originating process dated 3 February 2021, and on 1 June 2020 Anastassiou J made orders that, amongst other things, conferred power on the Company to deal with assets of the Trust: see Re MUTTON (in his capacity as liquidator of Balsub Pty Ltd (in liq) (ACN 109 715 853)) and Another (2020) 145 ACSR 342; [2020] FCA 741.
Mr Mutton retired as liquidator on 29 September 2021, on which date the Liquidator was appointed pursuant to an order made under s 473A of the Corporations Act in the Supreme Court of Victoria: Re ACN 167 984 045 Pty Ltd (in liq) [2021] VSC 652.
Creditors of the Company
The Liquidator is aware of unsecured debts or claims made against the Company totalling $3,917,410.02.10. At the time of affirming his affidavit, the Liquidator was aware of claims totalling $3,509,052.02, including a claim of the Marks Family Trust of $1,715,672. The trustee of the Marks Family Trust has since lodged a proof of debt for $2,124,030, increasing its claim by $408,358.
Mr Mutton and the Liquidator have assessed the capacity in which debts or claims were incurred by the Company, having formed the view that the Company had incurred those debts and claims in both its own right and in its capacity as trustee of the Trust.
The court made directions under s 90-15 of the IPS to clarify the capacity in which the debts of certain creditors were incurred: Re MUTTON at 351 [5]-[10]. Directions were made that Mr Mutton was justified in proceeding on the basis that:
(a) Balsub Pty Ltd carried on business in its capacity as trustee of the “BF Trust” (as defined in the reasons for judgment);
…
(c) Balsub’s creditors, other than its employees, the Deputy Commissioner of Taxation with respect to pay as you go withholding tax, Superannuation Guarantee Charge and associated interest and penalties, Marina Radiology and Telstra Corporation Limited, are creditors whose debts have been incurred by Balsub in its capacity as trustee of the BF Trust.
The Liquidator has estimated that there are claims against the Company (incurred in its own right) totalling $897,900.92. These claims comprise amounts payable for wages, superannuation contributions, leave of absence or retrenchment that are payable in priority to claims of other unsecured creditors pursuant to s 556(1)(e)-(h) of the Corporations Act.
The Commonwealth (as represented by the Department of Workplace Relations) received and paid claims made by employees of the Company pursuant to the Fair Entitlements Guarantee Scheme totalling $273,842.09.12. The Liquidator has proceeded on the basis that the Commonwealth:
(a)is subrogated to the position of employee creditors of the Company, pursuant to s 560 of the Corporations Act and by operation of the general law, and is therefore a creditor;
(b)enjoys the priority previously enjoyed by the employees of the Company, which arises pursuant to s 556(1)(e) to (h) of the Corporations Act; and
(c)has a claim against the Company in its own right, given that the claims of the Company’s employees were claims against the Company in its own right.
On 11 June 2020, the Commonwealth lodged a formal proof of debt or claim in the liquidation of the Company for the sum of $273,842.09.
The Liquidator has analysed whether the unsecured creditor claims of the Company are claims against the Company in its capacity as trustee of the Trust or in its own right. The position is summarised in the table below.
Creditor $ Company in Own Right Employees $624,058.83 Employees (Commonwealth / FEG Scheme) $273,842.09 Deputy Commissioner of Taxation $607,779.15 Telstra Corporation Limited $262.59 Marina Radiology $1,382.75 Total $1,507,325.41 Trustee Capacity Coca Cola Amatil $3,858.48 Cut Fresh Salads Pty Ltd $4,041.27 LD & D Australia Pty Limited $1,282.41 Marks Family Trust (Related Party) $2,124,030 National Estate Agents $2.00 Plastics for Industry Pty Ltd $1,570.90 Rentokil Initial Pty Ltd $169.13 Stuff That Works $1,288.33 Total $2,136,242.52
The Marks Family Trust is said to be the only “significant” creditor of the Company in its trustee capacity. It was listed as a creditor in Mr Marks’ Report on Company Activities and Property. The Liquidator believes the trustee of the Marks Family Trust is Carwellyn Pty Ltd, and that Ms Carolyn Marks and Mr Ian Marks are the current directors.
As explained at paragraph 15, Carwellyn has since lodged a formal proof of debt in the liquidation of the Company for the sum of $2,124,030.
The Insolvent Trading Claim
Neither the Liquidator, nor Mr Mutton, have identified material real or personal property of the Company which might be realised for the benefit of creditors. The Liquidator considers that the only material source of a potential recovery in the liquidation is a claim that he believes is available to the Company.
The Liquidator has conducted preliminary investigations as set out in the confidential affidavit of Mr Colbran affirmed 7 July 2023. He has formed a view that:
(a)the Company may be presumed to have been insolvent from 26 July 2012 pursuant to s 588E(4) of the Corporations Act and, based on the material he has reviewed, insolvent as a matter of fact from as early as 30 June 2015; and
(b)the Company may have a claim for insolvent trading against Mr Marks under s 588M(2) of the Corporations Act with a total quantum of up to $3,235,209.93 (the Claim).
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THE JURISDICTION TO MAKE DIRECTIONS
The statutory regime and relevant principles
Sections 90-15 and 90-20 of the IPS (rather than the former ss 511 or 479 of the Corporations Act) apply to the application because the originating process was filed after 1 September 2017: Primespace Property Investment Ltd (in liq), Re [2018] NSWSC 919, [17]-[18].
Section 90-15 confers two separate heads of power on the Court, being to:
(a)give judicial directions (as were made formerly under ss 479 and 511 of the Corporations Act), which provides comfort and relief from liability to a liquidator if the liquidator acts in accordance with a direction which turns out to be wrong: One T Development Pty Ltd v Krejci (in his capacity as liquidator of ENA Development Pty Ltd) [2023] NSWCA 120 at [40] and [42] (Ward P, Leeming JA and Mitchelmore JA); and
(b)make orders (which were not able to be made under ss 479 or 511 of the Corporations Act) that can affect rights and obligations, or conclusively determine controversies, that arise in relation to an external administration: see, for example, Re Hawden Property Group Pty Ltd (ACN 003 528 345) (in liq) (2018) 125 ACSR 355 at 357 [7]-[8] (Gleeson JA); Joiner (Liquidator), in the matter of CuDeco Limited (Receivers and Managers Appointed) (in liq) [2020] FCA 1661 at [93]-[97] (Banks-Smith J); Re Woodhouse (in their capacities as joint and several liquidators of Forex Capital Trading Pty Ltd (in liq) (ACN 119 086 270)) (2022) 159 ACSR 669 at [51] (Banks-Smith J).
The principles that were applicable to the giving of directions under former ss 447D(1), 479 and 511 of the Corporations Act are applicable to the giving of directions under ss 90-15 and 90-20: Re Walley [2017] FCA 486 at [41] (Gleeson J); Re Reidy (in their capacity as administrators of eCHOICE Ltd) (admins apptd) [2017] FCA 1582 at [27] (Yates J); El-Saafin v Franek (No 2) [2018] VSC 683 at [110] (Lyons J); Re University Co-Operative Bookshop LTD (admins apptd) (No 2) (2020) 142 ACSR 607 at [13]-[14] (Gleeson J); Re Equiticorp Australia Ltd (in liq) [2020] NSWSC 143 at [43] (Gleeson J).
That power may be exercised where it is just and beneficial to do so: see Federal Commissioner of Taxation v ACN 154 520 199 Pty Ltd (in liq) [2017] FCA 444 at [64] (Gleeson J), citing Gusdote Pty Ltd v North Queensland Land Development Pty Ltd (No 4) [2012] FCA 759 at [6]-[8] (Emmett J); Lo v Nielsen & Moller Autoglass (NSW) Pty Ltd [2008] NSWSC 407 at [29]-[31] (Barrett J). Alternatively, the power may be exercised where a liquidator’s decision to act in a particular way is likely to be contentious: Re One. Tel Ltd and Others (2014) 99 ACSR 247 at 256 [35] (Brereton J), citing Re Ansett Australia Ltd and Korda (2002) 115 FCR 409 at 428 [65] (Goldberg J), Re 7 Steel Distribution Pty Ltd (in liq) (recs and mgrs apptd) [2013] NSWSC 669 at [20] (Black J), and Re S&D International Pty Ltd (in liq) (No 7) (2012) 92 ACSR 38; [2012] VSC 551 at [58]-[59] (Robson J). Directions will not generally be granted in relation to a decision that is purely commercial, but may be granted where there is a “particular legal issue raised for consideration or attack on the propriety or reasonableness of the decision in respect of which the directions are sought”: Krejci, in the matter of Union Standard International Group Pty Ltd (Administrators Appointed) (No 2) [2020] FCA 1111 at [10] (Stewart J), citing Re Ansett at 428 [65] (Goldberg J).
Effect of a Direction
If a liquidator acts in accordance with a direction and has made full and fair disclosure of the material facts, the liquidator will be protected from claims by creditors or contributories in respect of an alleged breach of duty arising from the direction: Bastion v Gideon Investments Pty Ltd (in liq) (No 2) (2000) 35 ACSR 466 at [49] (Austin J).
The power to give directions under the relevant predecessor provisions had limitations, as McLelland J explained in Re G B Nathan & Co Pty Ltd (in liq) (1991) 24 NSWLR 674 at 679-680:
The historical antecedents of s 479(3), the terms of that subsection and the provisions of s 479 as a whole combine to lead to the conclusion that the only proper subject of a liquidator’s application for directions is the manner in which the liquidator should act in carrying out his functions as such, and that the only binding effect of, or arising from, a direction given in pursuance of such an application (other than rendering the liquidator liable to appropriate sanctions if a direction in mandatory or prohibitory form is disobeyed) is that the liquidator, if he has made full and fair disclosure to the court of the material facts, will be protected from liability for any alleged breach of duty as liquidator to a creditor or contributory or to the company in respect of anything done by him in accordance with the direction.
Modern Australian authority confirms the view that s 479(3) “does not enable the court to make binding orders in the nature of judgments’ and that the function of a liquidator’s application for directions “is to give him advice as to his proper course of action in the liquidation; it is not to determine the rights and liabilities arising from the company’s transactions before the liquidation”.
In ENA Development, the New South Wales Court of Appeal observed that s 90-15 is broader than its predecessors as it confers power to make orders that can determine rights and liabilities in an external administration (at [33]). However, such orders can only be made where necessary and proper parties are given an opportunity to be heard or joined: ENA Development at [35]; see also Re Hawden at [8] (Gleeson JA).
In ENA Development, the relevant direction concerned whether the liquidator would be justified in proceeding on the basis that company assets were not held on trust. The Court explained the effect of the direction made at [36] and [40]:
However, the orders from which this appeal has been brought do not determine any title to property. They merely confirm that, in advance of a determination of beneficial title to property in the company’s name, the liquidator would be justified in proceeding on the basis that the property was owned beneficially by the company and is available for the benefit of creditors. They are to that extent unusual, insofar as there will have been a hearing as to whether the liquidator would be justified in proceeding on a basis, and also a hearing which will determine finally whether that basis is correct. …
…
The effect of the orders is limited. They do not determine title to any property. Instead, they provide qualified comfort to the liquidator in the event that it turns out that he is wrong to proceed on the basis that the assets are assets held beneficially by the company being wound up. …
The Liquidator submits that this conclusion is consistent with the general principle that the function of a judicial direction is not to determine rights and liabilities: Re Sparks, IG Energy Holdings (Australia) Pty Ltd [2023] FCA 538, [24] (Halley J), citing Union Standard International at [7] (Stewart J). The Liquidator also submits that the the only binding effect that arises from a direction is protection of a liquidator from liability, citing Re G B Nathan at 679.
Absence of contradictor
Plainly it will often be desirable that there be a contradictor at the hearing of an application seeking approval to proceed in a manner that distinguishes between certain classes of creditors of a company.
Though preferable in an application such as this that there be a contradictor, the Liquidator submits that the absence of a contradictor is not generally regarded as an impediment to the determination of questions arising in a winding up: In the matter of Dalma No 1 Pty Ltd (in Liquidation) (2013) 279 FLR 80 at 83-84 [8] - [9] (Brereton J); Lewis and Templeton v LG Electronics Australia Pty Ltd (No 2) (2016) 308 FLR 100 at 114 [62] (Sifris J).
Both Dama and Lewis and Templeton were cited with approval in Re Sparks at [53] – [54], where Halley J summarised the principles as follows:
The absence of a contradictor, whilst undesirable, does not preclude a Court from determining an application of an administrator if all reasonable steps have been undertaken to obtain a contradictor or if the natural contradictor has elected against intervening: Re Jick Holdings Pty Ltd (in liq) (2009) 234 FLR 22; [2009] NSWSC 574 at [7] (White J); see Re Dalma No 1 Pty Ltd (in liq) (2013) 279 FLR 80; [2013] NSWSC 1335 at [9] (Brereton J); Hall v Poolman (2009) 75 NSWLR 99; [2009] NSWCA 64 at [7]-[8] (Spigelman CJ, Hodgson JA and Austin J).
Reasonable steps can include giving notice of the proceedings to persons with a potential interest in the outcome of the application, circulating a report to creditors of the company and inviting creditors to express an opinion on the application, including by appearing before the Court: Re Jick at [7] (White J); see also Lewis and Templeton and Another v LG Electronics Australia Pty Ltd and Others (No 2) (2016) 48 VR 450; [2016] VSC 63 at [63] (Sifris J)
THE LIQUIDATOR’S SUBMISSIONS
The Liquidator submits that the Proposed Direction is an appropriate exercise of the Court’s power under s 90-15 of the IPS for the following reasons.
First, it is said that there is a beneficial purpose that supports making the direction. The Company has been in liquidation for four years, and the Liquidator has identified no property that might be realised for the benefit of creditors, save for the Claim. The Liquidator’s evidence is that the only material asset of the Company (being the Claim) may have a value of more than $3 million, and the liquidation of the Company is assetless. The Liquidator does not have funding that enables him to prosecute the Claim. [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED]
Secondly, it is said that the Proposed Direction does not involve the Liquidator abdicating his responsibility to make commercial judgments in the liquidation, or to seek to have such a commercial judgment approved by the court. The Proposed Direction involves a question of law relating to the interpretation and application of the provisions of the Corporations Act, and in particular, how property that comes into the Liquidator’s hands may be distributed to creditors. It is uncontroversial that a liquidator may be ordered to compensate a company where the liquidator pays a claim of a creditor who was not entitled to receive such payment: see Thomson Reuters, Crutchfield’s Voluntary Administration (at Update 30) [35.90–15.10]. In these circumstances the Liquidator seeks protection from claims of breach of duty in the event the interpretation he has adopted of the Corporations Act is incorrect.
Thirdly, it is said that the Proposed Direction will not conclusively determine any entitlement of the Company’s creditors to the Proceeds in the winding up. Rather, it will merely protect the Liquidator from an assertion that he has breached his duties if he distributes the Proceeds in accordance with the Proposed Direction. If the Proceeds are recovered, a creditor may commence a proceeding seeking orders declaring their entitlement and compelling the Liquidator to distribute the Proceeds on a basis other than provided for in the Proposed Direction. In that regard the Liquidator will be required to comply with the provisions of the Corporations Regulations 2001 (Cth) that relate to giving notice prior to calling for proofs of debt or paying a dividend in the liquidation. In this regard it should be noted that the Liquidator has not yet called for formal proofs of debt.
Fourthly, while the Liquidator accepts a contradictor would be desirable, he submits that it is not fatal to the making of the Proposed Direction.
The Liquidator has given notice of the application to the Commonwealth, through the Australian Securities and Investments Commission, the Commissioner of Taxation, and the Department of Employment and Workplace Relations, none of which have sought to be heard.
The Liquidator has also given notice of the application to Carwellyn, which is the only significant creditor of the Company in its trustee capacity. Carwellyn is said to be the natural contradictor, whose interests may be affected by the Proposed Direction.
In this regard it is to be noted that the Liquidator’s solicitor engaged with Ms Carolyn Marks of Carwellyn on 22 August 2023. Ms Marks confirmed receipt of the application and stated that she would seek legal advice. While Carwellyn has lodged a fresh proof of debt in the liquidation, it has not taken any steps to be heard in relation to this application.
The Liquidator has not given notice of the application to other trust-creditors of the Company, being Cut Fresh Salads Pty Ltd, LD & D Australia Pty Limited, National Estate Agents, Plastics for Industry Pty Ltd, Rentokil Initial Pty Ltd, and Stuff That Works Pty Ltd. However, those creditors’ claims range between $2.00 and $4,041.27. The Liquidator submits that, given the small quantum of their claims, it is unlikely that they would take any part in the application at their own cost. In that regard, the Company has no assets save for the limited funding in the [REDACTED] [REDACTED] [RED which has been provided [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED]. The Liquidator does not have property that is available to fund a contradictor in the application.
The Liquidator submits that he has taken all reasonable steps to obtain a contradictor, and the natural contradictor, Carwellyn, has elected against intervening in the application. Consistently with the authorities he submits that the court can proceed in the absence of a contradictor: Re Sparks at [53] – [54] per Halley J.
DISTRIBUTION OF INSOVLENCT TRADING PROCEEDS
For the reasons that follow I accept, as the Liquidator submits, that any of the Proceeds ought to be distributed to all creditors without reference to the capacity in which the Company incurred the relevant liabilities.
The Principle of Equal Sharing
Underpinning s 588M(2) of the Corporations Act is a principle of “equal sharing” (pari passu). The section was re-enacted to ensure that all creditors share equally in the sums recovered through an action brought by a liquidator. The proceeds recovered by the liquidator are treated as “property of the company”: Re Movitor Pty Ltd (In Liquidation) (1996) 64 FCR 380 at 383 (Drummond J); Elfic Ltd v Macks (2003) 2 Qd R 125, 114 [98] (McMurdo P), [201]-[202] and [205] (Davies JA).
The Liquidator submits, and I accept, that the appropriate distribution of insolvent trading proceeds is understood through a process of statutory construction, as informed by the history of the section. The Liquidator’s submissions provided a detailed analysis of the insolvent trading prohibitions and their predecessors, which were introduced to prevent the abuse of limited liability conferred on corporations, and in particular, to protect creditors who transacted with corporations with minimal assets and paid-up capital. I accept that the modern provision has a long history, dating back to early last century, at which time the prohibition was directed to directors who carried on business with intent to defraud: see generally Australian Law Reform Commission, General Insolvency Inquiry, Report No 45 (1988) (Harmer Report) at 122 - 123 [277]-[278].
The direct predecessors to Part 5.7B of the Corporations Act are s 556(1) of the Companies Code 1981 (Cth) and s 592 of the Corporations Law 1991 (Cth), which applied to debts incurred prior to the commencement of Part 5.7B on 23 June 1993: Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113 at [55] (Spigelman CJ). Those sections provided that if a company incurred a debt, and immediately prior to it having been incurred there were reasonable grounds to expect that the company would not be able to pay its debts, then its directors and any persons who took part in the management of the company would be “jointly and severally liable for the payment of the debt”.
The liability did not arise from any “breach” or “default” by the defendant. Rather, the sections imposed a co-ordinate liability for debts of a company conditioned on the defendant having taken part in the management of the company, and an expectation of insolvency. In Commonwealth Bank of Australia v Friedrich (1991) 5 ACSR 115 Tadgell J (as his Honour then was) made the following observation at 192:
… The liability under s 556(1) does not arise on account of .. the performance of some act forbidden, or the omission of some act required, by s 556(1) or indeed any other provision of the Code. The only prerequisite to the defendant's liability under s 556(1) over which he has any necessary control is simply that he was a director or took part in the management of the company. This cannot by itself involved him in any default or breach of duty to the plaintiff. …
It is true that, upon the view I have taken of s 556(1), it presupposes that directors have obligations under the Code, and that they will be complied with, but the section does not impose any obligation on a director for breach of which or default by reference to which a claim may be made under the section by a creditor. The liability under the sub-section is simply a liability for the payment of a debt that was incurred by the company.
If those conditions were then satisfied the defendant would be liable to a creditor for “payment of the debt” incurred by the company to the plaintiff: Friedrich at 193 (Tadgell J). The capacity in which a trustee company incurred the debt would have been irrelevant. This was not an action available to a company or its liquidator, meaning no occasion arose to consider how its proceeds might be distributed amongst the body of creditors. The intention of the sections was to effect recovery of a specific debt incurred by a company whilst insolvent.
The Liquidator submits that this policy position was the focus of attention in the 1980s. Along with general consideration of national corporations legislation, the Australian Law Reform Commission conducted an inquiry pursuant to a broad reference relating to insolvency, which the Commission had received in 1983: see the discussion in Clark at [76] (Spigelman CJ). The Harmer Discussion Paper was published in August 1987, and the Harmer Report itself was tabled in the Federal Parliament on 13 December 1988.
The Liquidator submits that the Harmer Report explained the rationale behind what later became Part 5.7B of the Corporations Act. It stated the following by way of a guiding statement for proposed reforms at 125 [280]:
Need for reform. Despite the 1981 legislation, there is still a clear need for further reform. The responsibility of a director with regard to insolvent trading has not, thus far, been expressed as a positive duty owed to the company to prevent the company from engaging in that activity. Former and existing legislation has centred upon the incurring of a particular debt or debts and subjecting a director to notional joint responsibility for the debt or debts. This produces a series of isolated examinations of each instance of the incurring of a debt. Yet the real abuse is permitting the company to trade after a point where on an objectively considered basis, the company is unable to pay all its debts. The Commission therefore proposed in DP 32 (para 201) the abandonment of the existing s 556 and the enactment of a totally restructured provision which is clear, rational and readily enforceable in a manner which permits all creditors to share equally in the sums recovered. This would promote the principle of equal sharing in an insolvency.
(Emphasis added.)
The Liquidator explains that the Harmer Report proposed:
(a)the introduction of a duty to prevent the company from engaging in insolvent trading (at [283]), where that duty was owed to the company and liquidators would have primary responsibility as to whether an action should be brought (at 139 [313]);
(b)against the introduction of a provision that would entitle creditors to bring an action in their own name, on the basis that the Commission regarded “the principle of equal sharing as crucial” (at 139 [315]);
(c)that in order to preserve the action as “for the benefit of all creditors in a winding up”, an action should only be permitted where leave of the court had been granted and the action was conducted in the name of the company (at 139 [314]); and
(d)that any amounts received by the company “be applied for distribution in the winding up” only to a company’s unsecured creditors (at 141 [320]).
Commenting on the Harmer Report in Clark, Spigelman CJ said at [78] that the proposal had a “particular emphasis on creating a situation in which all creditors share equally in the sums recovered”. Similarly, in Taylor v Rudaks (2007) 166 FCR 451 at [23], Mansfield J described that proposal as one “intended to produce a legislative structure which enables all creditors to share equally in the sums recovered, so as to promote the principle of equality.”
The Harmer Report was followed by the Corporate Law Reform Bill 1992 (Cth) and Corporate Law Reform Act 1992 (Cth) (CLRA). Section 111 of the CLRA amended the Corporations Law to introduce Part 5.7B, entitled “Recovering Property or Compensation for the Benefit of Creditors of Insolvent Company”: see the discussion in Rudaks at [20]. The CLRA introduced ss 558G and 588M of the Corporations Act, amongst other sections.
On an application under s 588M of the Corporations Act in respect of a contravention of s 588G of that Act, the plaintiff must establish that:
(a)the company incurred a debt at a time when the defendant was a director;
(b)at the time the debt was incurred, the company was insolvent or became insolvent by reason of incurring the debt; and
(c)the director was aware that there were grounds to suspect insolvency, or that a reasonable person in a like position would have been so aware.
Where those matters are established, the liquidator is entitled, pursuant to s 588M, to recover as a debt due to the company an amount equal to the amount of loss or damage suffered by the creditor by reason of the company’s insolvency pursuant to s 588M of the Corporations Act: Mitchell Warren Ball (in his capacity as official liquidator of Wealthfarm Group Services) v Nicholas Quinn Sinclair [2015] NSWSC 2103 at [2] (Brereton J). Section 588M provides:
(1)This section applies where:
(a) a person (in this section called the director) has contravened subsection 588G(2) or (3) in relation to the incurring of a debt by a company; and
(b) the person (in this section called the creditor) to whom the debt is owed has suffered loss or damage in relation to the debt because of the company's insolvency; and
(c) the debt was wholly or partly unsecured when the loss or damage was suffered; and
(d) the company is being wound up;
…
(2) The company's liquidator may recover from the director, as a debt due to the company, an amount equal to the amount of the loss or damage.
(3) The creditor may, as provided in Subdivision B but not otherwise, recover from the director, as a debt due to the creditor, an amount equal to the amount of the loss or damage.
(4) Proceedings under this section may only be begun within 6 years after the beginning of the winding up.
Liquidators and creditors are given independent causes of action to sue a director under s 588M of the Corporations Act. A liquidator may sue to recover as a “debt due to the company”, and creditors may sue to recover as a “debt due to the creditor”. The Liquidator submits that Parliament did not adopt the recommendation of the Harmer Committee that creditors only be permitted to sue in the company’s name, and instead adopted a model whereby creditors are entitled to sue with a liquidator’s consent (s 588R Corporations Act) or where the liquidator fails or refuses to bring that proceeding and the Court grants leave (s 588T Corporations Act).
The Liquidator also noted in his submissions that Parliament did not explain the reason behind the departure from that recommendation in the Harmer Report. However, the Explanatory Memorandum to the Bill does explain the purpose of Part 5.7B as follows at [1106]:
The Harmer Report recommended that only the liquidator be able to bring proceedings against directors for insolvent trading. This was on the basis that the duties are owed to the company and therefore it is the company which should bring the action against the director for the breach of duty. Since the provisions only apply to a company on a winding up it is a liquidator who has the primary responsibility to determine if an action s to be brought. The Report concluded that the principle of equal sharing is crucial and therefore rejected the possibility that creditors have a right to bring an individual action against the director. Proposed provisions 588R to 588U do, however, allow a creditor an individual right of action in limited circumstances where a liquidator refuses to take action against the director on behalf of the company.
(Emphasis added.)
The Explanatory Memorandum apparently accepted that the principle of “equal sharing” underpinned the provisions of Part 5.7B. As noted above, ss 588M(2) and (3) direct the recovery of compensation to the “company” and “creditor” respectively, but a creditor will only be permitted to sue where a liquidator has consented or refused to sue. In Rudaks at [24], Mansfield J explained the effect of that structure as follows:
Paragraphs 1103 to 1106 of the Explanatory Memorandum to the Corporate Law Reform Bill specifically address the proposed s 588M. The text appears to assume that the liquidator will effect recovery of the loss and damage suffered by a creditor to whom a debt is owed by “action”, and explains why such “proceedings’ should generally be permitted only through the liquidator, so the creditor’s right to bring proceedings under s 588M(3) is curtailed: see s 588R — 588U. That was said to ensure the principle of equal sharing.
Similarly, in Perrine v Carrello [2017] WASCA 151 at [36], Martin CJ, Mitchell and Beech JJA explained the purpose of the recoveries under the section as follows:
… The recovery of compensation by a liquidator from a director for breach of s 588G is plainly for the benefit of unsecured creditors. That evidently reflects the view of the Harmer Report, that it is unsecured creditors who normally suffer the greatest loss as a result of a company’s insolvent trading. The legislative scheme is designed to promote equal sharing between creditors of all sums recovered.
In addition, the CLRA enacted s 588Y of the Corporations Act. That section has no application where a creditor brings the action. Section 588Y(1) provides that where “an amount is paid to a company” under s 588M(2), it “is not available to pay a secured debt of the company unless all the company's unsecured debts have been paid in full.” It has been said that section 588Y demonstrates an “express statement of a legislative intention” that any recoveries from proceedings commenced under s 588M(2) are not available in priority to secured creditors: see Tolcher v National Australia Bank Ltd (2003) 174 FLR 251 at [15] (Palmer J). Once paid to the company, the proceeds are shared amongst its unsecured creditors.
The Liquidator submits that the principle of equal sharing is fundamental to the modern right to recover amounts for insolvent trading. The predecessor legislation was concerned with the recovery of specific debts incurred by a company whilst insolvent. Part 5.7B departed from that legislative regime. It contains a model under which the liquidator distributes the proceeds of the action to all unsecured creditors of a company. It does not discriminate between those creditors whose debts were incurred whilst the company was insolvent or solvent. Nor should it discriminate between the capacity in which a company incurred its debts.
Application of the Equality Principle and why it ought to be preferred
The Liquidator submits that if it is accepted that the proceeds are “property of the company”, they fall subject to s 555 of the Corporations Act which enshrines the pari passu principle: see Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth (2019) 268 CLR 524 at [71] (Bell, Gageler and Nettle JJ).
In Lerinda Pty Ltd v Laertes Investments Pty Ltd as Trustee for Ap-Pack Deveney Unit Trust [2010] 2 Qd R 312, [11] McMurdo J noted that:
The starting point is that some reason should be demonstrated for departing from what McPherson J has described as:
“the general principle of equity that requires a distribution of company property in winding-up to proceed upon a footing of equality amongst all the creditors of equal degree”. [Quoting B H McPherson, The Insolvent Trading Trust in P D Finn, Essays in Equity, Law Book Company, Sydney, 1985 142, p 158]
In Spies v R [(2000) 201 CLR 603 at 636], Gaudron, McHugh, Gummow and Hayne JJ said…:
“To give some unsecured creditors remedies in insolvency which are denied to others would undermine the basic principle of pari passu participation by creditors.”
And as Owen J said in Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd [(1992) 8 WAR 42 at 54]:
“The property of an insolvent company is to be applied in satisfaction of liabilities equally, and the courts look askance at mechanisms which seek to reserve specific assets to settle particular liabilities.”
The Liquidator submits that the reasoning as to why proceeds of an insolvent trading claim ought to be distributed to all creditors on a pari passu basis may be demonstrated by consideration of the counterfactual. If the entirety of the proceeds (assuming full recovery of $3.7m) in this case were to be considered a trust asset, the trust creditors would be paid in full to the detriment of the non-trust creditors. A question would also arise as to whether the non-trust creditors or beneficiaries of the trust would receive the surplus.
The Liquidator submits that there is no basis in fact or law to prefer the trust creditors over non-trust creditors and that such treatment is contrary to the principles of equal sharing.
It is said to follow that if the proceeds were not to be distributed on a pari passu basis, it would be necessary for some sort of apportionment of the proceeds to occur. Any apportionment based on the total value of unsecured creditors (whether trust or non-trust) would be, in effect, a pari passu distribution. The only alternative would be to distribute based on the proportion of trust vs non-trust liabilities incurred whilst the company was insolvent. The Liquidator submits that such treatment is contrary to the present operation of s 588M and would require a rewriting of the statute against the policy propounded in the Harmer Report and Explanatory Memorandum by reverting the action to a right of recovery in respect of specific debts.
Claims under s 588M of the Corporations Act arise where a specific creditor has “suffered loss or damage in relation to the debt because of the company’s insolvency”. However, the Liquidator submits that the identification of a creditor’s “loss and damage” is merely the means adopted by the Corporations Act to quantify the insolvent trading claim. The Court has made clear that the “debt” recoverable by the liquidator under s 588M(2) is distinct from the “loss and damage” of a creditor (and therefore the debt that is owed by the company to its creditor): see Barret J’s observations in Eden v Bignell [2007] NSWSC 1122, [30]; and Treloar Constructions (2017) 318 FLR 58 at 69 [53] (Beazley P, Gleeson JA and Emerton AJA).
An amount ordered to be paid under s 588M(2) of the Corporations Act is payable to the company. That is because it is a “debt due to the company” (s 588M(2)) or “[a]n amount paid to a company” (s 588Y(1) and (2)). It then forms “property of the company”: see Re Movitor at 392-393; Elfic at [98] (McMurdo P), [201]-[202] and [205] (Davies JA). It is then to be distributed to all creditors rateably (after payment of priority expenses) pursuant to s 555 of the Corporations Act. It has never been the law that the proceeds are paid only to those creditors who suffered “loss and damage” within the meaning of s 588M(2). The proceeds are available to all creditors, consistent with the text used in ss 588M and 555 of the Corporations Act and the “equal sharing” principle that underpins it.
The position in other comparable jurisdictions
Following my request at the hearing the plaintiffs provided a supplementary submission to the court addressing whether there are authorities relevant the treatment of proceeds of insolvent trading claims (or analogous claims) as between trust and non-trust creditors in other comparable jurisdictions. Having regard to the plaintiff’s further submissions, I am satisfied that there is a dearth of authorities directly addressing this question in other relevant jurisdictions, although the following may be noted.
First, and most relevantly for present purposes, the Supreme Court of the United Kingdom has affirmed that proceeds received by a liquidator through the prosecution of wrongful trading under s 214 of the Insolvency Act 1986 (UK) (an analogous claim) are distributed amongst all creditors on a pari passu basis and in accordance with relevant statutory priorities: see BTI 2014 LLC v Sequana SA [2022] UKSC 25; [2023] B.C.C. 32 at 83 [192]; see also Re William C Leitch Brothers Ltd (No 2) [1933] Ch 261 (Ch) at 266 (Eve J); Brooks v Armstrong [2016] EWHC 2893; [2017] B.C.C. 99 at 130 [120(a)] (David Foxton QC, sitting as a deputy judge of the Chancery Division); Re Purpoint Ltd [1991] BCLC 491; [1991] B.C.C. 121 at 128-129. (Vinelott J); Re Continental Assurance Co of London Plc [2001] B.P.I.R. 862 at 864 (Park J); and Re Ralls Builders Ltd (in Liq) [2016] EWHC 243 (Ch) at 342-345 [235]-[241] (Snowden J).
Similarly, the Supreme Court of New Zealand has affirmed that proceeds received by a liquidator through the prosecution of “reckless trading” in ss 135 and 136 of the Companies Act 1993 (NZ) (an analogous claim) are distributed amongst all creditors on a pari passu basis and in accordance with relevant statutory priorities: see Madsen-Ries (as liquidators of Debut Homes Ltd (in Liq) v Cooper [2020] 1 NZLR 43 at 61 [40] and 89 [176] (Glazebrook J); see also Yan v Mainzeal Property and Construction Ltd (In Liq) [2019] NZHC 255 at [387] and [390] (Cooke J); [2021] 3 NZLR 598 at 655 [226] and 729 [522] (Goddard J); [2023] NZSC 113 at 655 [226], 728 [520], 729 [522] (Winkelmann CJ and William Young J).
I accept, as the plaintiffs submit, that the positions in the United Kingdom and New Zealand support their contention regarding the proper application of ss 588M(2) of the Corporations Act in this country.
DETERMINATION
For the reasons set out above I am satisfied that the Liquidator is justified and acting reasonably by proceeding on the basis that the Proceeds are available for distribution to all creditors of the Company in discharge of its debts, claims or expenses. The Court will make the Proposed Direction.
Turning finally to the Liquidator’s remuneration, costs and disbursements of this application, the Liquidator seeks an order that these expenses are to be paid from the assets of the Company and the Trust on an indemnity basis, in accordance with s 556 of the Corporations Act. I am satisfied that such an order is appropriate in all the circumstances.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McEvoy. Associate:
Dated: 19 December 2023
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