Commissioner of Taxation v Iannuzzi (No 3)
[2024] FCA 45
•2 February 2024
FEDERAL COURT OF AUSTRALIA
Commissioner of Taxation v Iannuzzi (No 3) [2024] FCA 45
File number: NSD 1510 of 2017 Judgment of: MARKOVIC J Date of judgment: 2 February 2024 Catchwords: CORPORATIONS – applications to discharge or vary orders which reinstated the registration of deregistered companies pursuant to s 601AH(2) of the Corporations Act 2001 (Cth) – where order was made pursuant to s 601AH(3)(d) of the Corporations Act to disregard the period between the date of the relevant companies’ deregistration and the date of the order for the purpose of calculating the period ending three years after the relation-back day (Order 3) – where order was made granting the companies liberty to apply to vary or discharge Order 3 – where Order 3 was made by consent without notice – where the three year limitation period under s 588FF(3) of the Corporations Act had expired at the time Order 3 was made – whether the Court has power to make Order 3 other than by s 588FF(3) of the Corporations Act – whether Order 3 should be set aside as of right – whether s 601AH(3)(d) of the Corporations Act may be used to augment the reckoning of time for limitation purposes – whether s 601AH(3)(d) or alternatively s 536 (now repealed) of the Corporations Act empower the Court to make an order extending time (or suspending time) for the purposes of s 588FF(1) of the Corporations Act – applications granted Legislation: Corporations Act 2001 (Cth) ss 494, 536 (now repealed), 588FC, 588FDA, 588FF subs (1) and subs (3), 601AH subss (2), (3) and (5), 601AG, 1322, 1551, 1615 and 1617
Corporations Law (now repealed) s 459G and s 1322
Insolvency Practice Schedule (Corporations), being Sch 2 to the Corporations Act 2001 (Cth), s 90-10 and s 90-15
Corporations Regulations 2001 (Cth) r 10.25.01(1) and (2)
Limitation Act 1963 (NSW) s 63
Limitation of Actions Act 1974 (Qld) s 11
Workers’ Compensation Act 1990 (Qld) (now repealed) s 186
Uniform Civil Procedure Rules 2005 (NSW) r 36.16
Cases cited: Allianz Australia Insurance Ltd v Viksne (2021) 106 NSWLR 306
Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1
Bell Group Ltd (in liq) v Australian Securities and Investments Commission (2018) 358 ALR 624; [2018] FCA 884
BL & GY International Co Ltd v Hypec Electronics Pty Ltd (2010) 79 ACSR 558; [2010] NSWSC 959
BP Australia Ltd v Brown (2003) 58 NSWLR 322
Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44
Chalker v Clark [2008] VSCA 92
CGU Workers Compensation (NSW) Ltd v Rockwall Interiors Pty Ltd (2006) 201 FLR 296; [2006] NSWSC 690
Commissioner of Taxation v Iannuzzi (No 2) [2019] FCA 1818
Commissioner of Taxation v Iannuzzi [2018] FCA 1053
David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265
Del Borrello v Australian Securities and Investments Commission [2008] WASC 48
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89
Gordon v Tolcher (2006) 231 CLR 334
Grant Samuel Corporate Finance Pty Ltd v Fletcher (2015) 254 CLR 477
Hall v Poolman (2009) 75 NSWLR 99
JPMorgan Chase Bank, National Association v Fletcher (2014) 85 NSWLR 644
McMillan Investment Holdings Pty Ltd v Morgan (2023) 295 FCR 543
Miltonbrook Pty Ltd v Westbury Holdings Kiama Pty Ltd (2008) 71 NSWLR 262
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566
Morgan v Sydney Allen Manufacturing Pty Limited (in Liquidation) [2021] FCA 169
Pagnon v Workcover Queensland [2001] 2 Qd R 492
Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144
Project Blue Sky Inc and Australian Broadcasting Authority (1998) 194 CLR 355
Re Austral Bronze Co Pty Ltd (No 2) (2020) 149 ACSR 221; [2020] NSWSC 1633
Re Auzhair Supplies Pty Ltd (in liq) (2013) 92 ACSR 554; [2013] NSWSC 1
Re Bele & Co Pty Ltd [2017] NSWSC 1824
Re European Metal Recyclers Pty Ltd (in liq) (deregistered) [2018] NSWSC 946
Re Harule Pty Ltd; Ex parte Olita Super Readymixed Concrete Pty Ltd (in liq) (1994) 13 ACSR 500
Re Regional PlannersDevelopments Co Pty Ltd (2015) 110 ACSR 457; [2015] NSWSC 1996
Saba BrosTiling (ACT) Pty Ltd v Australian Securities and Investments Commission [2021] ACTSC 47
Smith v Australian Securities and Investments [2018] NSWSC 1695
Stork ICM Australia Pty Ltd v SFS 007.298.633 Pty Ltd (formerly Stork Food Systems Australasia Pty Ltd) (2010) 77 ACSR 517; [2010] FCA 53
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362
The Owners of the Ship “Shin Kobe Maru” v Empire Shipping Co Inc (1994) 181 CLR 404
Wallman v Milestone Enterprises Pty Ltd (2006) 205 FLR 68; [2006] WASC 260
White v Baycorp Advantage Business Information Services Ltd (2006) 200 FLR 125; [2006] NSWSC 441
Division: General Division Registry: New South Wales National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Number of paragraphs: 319 Date of hearing: 4-6 April 2023 Counsel for the Plaintiff/First Respondent: Mr LT Livingstone SC with Ms CT Ensor Solicitor for the Plaintiff/First Respondent: MinterEllison Counsel for the 20th – 22nd, 29th and 46th Respondents: Mr DR Pritchard SC with Mr AJ Macauley Solicitor for the 20th – 22nd, 29th and 46th Respondents: Kekatos Lawyers Counsel for the First and Third – Seventh Applicants: Mr S Golledge SC with Mr R Johnson Solicitor for the First and Third – Seventh Applicants: Shaba & Thomas Lawyers Counsel for the Second – 15th Respondents: Mr AJ McInerney SC with Mr F Tao Solicitor for the Second – 15th Respondents: Norton Rose Fulbright Australia Counsel for the Defendant/49th Respondent and 48th Respondent: Ms N Bailey Solicitor for the Defendant/49th Respondent and 48th Respondent: Johnson Winter & Slattery Counsel for the 18th and 19th Respondents: Mr SA Lees Solicitor for the 18th and 19th Respondents: Brown Wright Stein ORDERS
NSD 1510 of 2017 BETWEEN: COMMISSIONER OF TAXATION
Plaintiff
AND: MR DAVID NICHOLAS IANNUZZI
Defendant
IN THE INTERLOCUTORY APPLICATION: BETWEEN: RUNCITY PTY LTD ACN 164 920 432
First Applicant
CALABRO REAL ESTATE PTY LTD (IN LIQUIDATION) ACN 07 440 140
Second Applicant
INTERFREIGHT TRANSPORT PTY LTD ACN 165 673 085 (and others named in the Schedule)
Third Applicant
AND: COMMISSIONER OF TAXATION
First Respondent
RC GROUP AUSTRALIA PTY LTD (IN LIQUIDATION) ACN 164 000 462 (and others named in the Schedule)
Second Respondent
ORDER MADE BY:
MARKOVIC J
DATE OF ORDER:
2 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The parties are to confer on the form of orders to be made to give effect to these reasons.
2.Within 14 days of the date of publication of these reasons:
(a)if the parties can agree on the form of orders to be made, including, if agreement can be reached, on the question of costs or the manner in which any dispute as to costs is to be resolved, they are to provide to the Associate to Markovic J draft orders to be made in Chambers; or
(b)if the parties cannot agree on the form of orders to be made:
(i)each party is to provide to the Associate to Markovic J their proposed draft orders including on the question of costs, the manner in which any extant applications for costs are to be dealt with by the Court and for a timetable for the filing and service of affidavits and submissions, not exceeding eight pages in length, in support of and in response to any application for indemnity costs by any of the Applicants (as defined in these reasons); and
(ii)the proceeding will be listed for case management hearing on 23 February 2024 at 9.30 am AEDT to resolve the form of orders to be made.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MARKOVIC J:
On 25 August 2017 the plaintiff, the Commissioner of Taxation, commenced this proceeding seeking, among other things, an inquiry pursuant to s 536 of the Corporations Act 2001 (Cth) into the conduct of the defendant, David Nicholas Iannuzzi. At that time and leading up to the making of final orders in November 2019, the Commissioner and Mr Iannuzzi were the only parties to the proceeding. The conduct of the proceeding as between the Commissioner and Mr Iannuzzi is described below.
On 2 September 2019, after the trial judge, Stewart J, had reserved his judgment in relation to the relief sought by the Commissioner, the Court made orders by consent including relevantly that:
1.Pursuant to s 601AH(2) of the [Corporations Act] the Australian Securities and Investments Commission (ASIC) forthwith reinstate the registration of each of the following companies:
a)RC Group Aust Pty Limited (Deregistered) ACN 164 000 462;
b)Inter Management Group Pty Limited (Deregistered) ACN 105 115 759;
c)Co-ordinated Transport Solutions Pty Limited (Deregistered) ACN 110 905 774;
d)Diesel Dan Pty Limited (Deregistered) ACN 127 303 682;
e)Silverhills Haulage Australia Pty Limited (Deregistered) ACN 128 613 016;
f)ACN 133 636 414 Pty Limited (Deregistered) ACN 133 636 414;
g)Fara Logistics (Aust) Pty Limited (Deregistered) ACN 146 285 029;
h)Machinery Moves Australia Pty Limited (Deregistered) ACN 159 498 254; and
i)Brisbane Inner City Tilt Tray Services Pty Limited (Deregistered) ACN 159 968 840,
(jointly, the Companies).
2.Pursuant to s 601AH(3)(d) of the [Corporations Act], upon the reinstatement of the registration of the Companies, Ms Gayle Dickerson and Mr Stephen Vaughan be appointed as the joint and several liquidators of each of the Companies.
3.Pursuant to section 601AH(3)(d) of the [Corporations Act], when calculating the period ending three years after the relation-back day for any of the Companies, the period between the date of the deregistration of the relevant company and the date of these orders shall be disregarded.
4.Pursuant to section 601AH(3)(d) of the [Corporations Act], if proceedings are commenced by Ms Dickerson and Mr Vaughan as the joint and several liquidators of any of the Companies in reliance upon Order 3, Ms Dickerson and Mr Vaughan must cause a copy of these Orders to be served upon the defendant with the initiating process by which the proceedings are commenced and the defendant shall thereafter be at liberty to apply to this Court to vary or discharge Order 3 in relation to itself.
(Reinstatement Orders).
Since the Reinstatement Orders were made, Gayle Dickerson and Stephen Ernest Vaughan (Liquidators) in their capacity as joint and several liquidators of the Companies (as defined in the Reinstatement Orders) have, in reliance upon Order 3 of the Reinstatement Orders, commenced a number of proceedings in the Supreme Court of New South Wales. Upon doing so, in compliance with Order 4 of the Reinstatement Orders, they served a copy of those orders on the defendants to the proceedings.
Having done so, pursuant to the liberty granted by Order 4 of the Reinstatement Orders, four groups of defendants to the various proceedings commenced by the Liquidators in the Supreme Court have filed interlocutory applications in which they seek, in effect, that Order 3 of the Reinstatement Orders be discharged or, in the alternative, that it be varied so it does not operate in respect of claims made against the relevant defendants or, in the further alternative, that Order 3 be varied so that it does not operate as against the relevant defendants in relation to claims by any of the Companies as defined in Order 3 of the Reinstatement Orders or the Liquidators under Div 2 of Pt 5.7 of the Corporations Act.
Interlocutory applications seeking orders to that effect have been filed by:
(1)Runcity Pty Ltd, Calabro Real Estate Pty Ltd, Interfreight Transport Pty Ltd (Interfreight 2), Diesel Dan (NSW) Pty Ltd (Diesel Dan 2), John Tabuso, Mirjana Tabuso and Maurizio Ligori (Tabuso Application). Since the filing of the interlocutory application, a liquidator has been appointed to Calabro Real Estate. Accordingly, the orders sought are pressed only by the balance of the applicants to the interlocutory application who I will refer to collectively as the Tabuso Applicants;
(2)Katherine Khalil and Kito Investments Pty Ltd who I will refer to collectively as the Kito Applicants (Kito Application);
(3)Michael Borg, Borg Family Pty Ltd and 746 Greendale Road Greendale Pty Ltd who I will refer to collectively as the Borg Applicants (Borg Application); and
(4)Givana (Holdings) Pty Ltd and Givana Pty Ltd who I will refer to collectively as the Givana Applicants (Givana Application).
Although the Borg Applicants and the Givana Applicants have each filed an interlocutory application they are represented by the same solicitors and counsel and make the same submissions. I will refer to those applicants collectively as the Borg & Givana Applicants and to the four applicant groups collectively as the Applicants.
On 9 December 2022 the Commissioner filed an interlocutory application (Commissioner’s Application). That application only arises for consideration in the event that any of the Applicants are successful in having Order 3 of the Reinstatement Orders discharged or varied. In that event, the Commissioner seeks:
(1)an order pursuant to s 601AH(3)(d) of the Corporations Act to the effect that, when calculating the period ending three years after the relation-back day for any of the reinstated companies, the period between the date of the deregistration of the relevant company and 2 September 2019 be disregarded;
(2)in the alternative an order pursuant to s 536(1) of the Corporations Act (now repealed) to the effect that, when calculating the period ending three years after the relation-back day for any of the reinstated companies, the period between the date of the deregistration of the relevant company and 2 September 2019 be disregarded or, alternatively, an order to the same effect; and
(3)an order that if an order in the terms of [6(1)] and/or [6(2)] above is made, that order operate nunc pro tunc with effect from 2 September 2019.
BACKGROUND
Phoenix taskforce established
In 2014 a Phoenix Taskforce was established. The agencies involved in the taskforce included the Australian Taxation Office (ATO) and the Australian Securities and Investments Commission (ASIC) as well as other government agencies. As described by Michael Hughes, a partner of MinterEllison, the solicitors for the Commissioner, the aim of the inter-agency operation was to detect, deter and disrupt certain behaviours including phoenixing activity, incorrect tax refund claims, taxation irregularities and money laundering, by investigating, among other things: tax agents promoting and facilitating this behaviour; insolvency practitioners facilitating this behaviour; and companies and individuals profiting from this behaviour.
The ATO commences an investigation into Mr Iannuzzi
A focus of the Commissioner’s investigation was on potential phoenixing activity in which Mr Iannuzzi was involved arising from his relationship with Banq Accountants and Advisors Pty Limited (in liquidation) trading as Banq Accountants.
In 2015 the ATO commenced an investigation into Mr Iannuzzi’s conduct in his capacity as external administrator of various entities of which the Deputy Commissioner of Taxation was, or may be, a creditor.
According to a document titled “Agreed Statement of Facts” which was tendered by Mr Iannuzzi in this proceeding in the circumstances described at [24] and [26] below and treated as a statement of concessions:
(1)at all relevant times Mr Iannuzzi was the sole director of Veritas Advisory Services Pty Ltd which, among other things, carried on a business of providing insolvency related services;
(2)prior to his death on 16 June 2015 Murray Godfrey was also a director of Veritas Advisory;
(3)Mr Iannuzzi inherited the relationship with Banq Accountants from RMG Partners, Mr Godfrey’s former business;
(4)Banq Accountants was a referring entity to Mr Iannuzzi. It provided Mr Iannuzzi’s contact details to a director, debtor or creditor for the purpose of seeking specialist insolvency advice which may result in an appointment for Mr Iannuzzi; and
(5)Mr Iannuzzi received referrals from Banq Accountants to act as liquidator in a creditors’ voluntary liquidation for at least 28 companies.
The Liquidation and deregistration of RC Group and the Tabuso Group of companies
On 18 August 2014 RC Group Aust Pty Ltd was placed into liquidation and Messrs Iannuzzi and Godfrey were appointed as liquidators.
On 8 December 2014 the following companies were placed into liquidation:
(1)Inter Management Group Pty Ltd;
(2)Co-ordinated Transport Solutions Pty Ltd;
(3)Diesel Dan Pty Ltd (Diesel Dan 1);
(4)Silverhills Haulage Australia Pty Ltd;
(5)ACN 133 636 414 Pty Ltd (formerly known as Interfreight Transport Solutions Pty Ltd) (Interfreight 1);
(6)Fara Logistics (Aust) Pty Ltd;
(7)Machinery Moves Australia Pty Ltd; and
(8)Brisbane Inner City Tilt Tray Services Pty Ltd,
collectively Tabuso Group.
Messrs Iannuzzi and Godfrey were appointed as liquidators of each of the Tabuso Group companies.
RC Group and each of the Tabuso Group companies were deregistered on the dates set out below:
(1)RC Group on 27 December 2015;
(2)Machinery Moves on 29 May 2015;
(3)Silverhills Haulage and Inter Management on 29 December 2015;
(4)Co-Ordinated Transport, Diesel Dan 1, Fara Logistics and Brisbane Inner City Tilt Tray on 30 December 2015; and
(5)Interfreight 1 on 8 May 2016.
The Commissioner commences this proceeding against Mr Iannuzzi
It was agreed between the parties that the Commissioner first retained MinterEllison to act for him on 1 April 2016. Mr Hughes explains that he was retained to advise and act in connection with the Commissioner’s complaints and concerns about Mr Iannuzzi’s conduct.
As set out above, on 25 August 2017 the Commissioner commenced this proceeding against Mr Iannuzzi as defendant by filing an originating process. On 3 May 2019 the Commissioner filed an amended originating process, the amendments to which only affected Sch B to the originating process. In his amended originating process the Commissioner sought:
(1)interlocutory relief including, among other things:
(a)an order for an inquiry pursuant to s 90-10 of the Insolvency Practice Schedule (Corporations), being Sch 2 to the Corporations Act (IPS) or alternatively s 536(1) of the Corporations Act (now repealed) (Inquiry Application) into the external administration by Mr Ianuzzi of each of the companies listed in Sch A to the amended originating process; and
(b)orders pursuant to s 601AH of the Corporations Act directing ASIC to reinstate the registration of RC Group and to appoint Robyn Erskine as its liquidator; and
(2)final relief including, among other things:
(a)orders pursuant to s 90-50 of the IPS or alternatively s 536(1) of the Corporations Act (now repealed) that Mr Iannuzzi cease to be the liquidator of the companies listed in Pt 1 of Sch A to the amended originating process and that a person other than Mr Iannuzzi be appointed liquidator to each of those companies; and
(b)orders pursuant to s 90-15 of the IPS or alternatively s 536(1) of the Corporations Act (now repealed) that:
(i)Mr Iannuzzi’s name be removed from the register of liquidators maintained pursuant to the Corporations Act;
(ii)Mr Iannuzzi be restrained for a period of 10 years, or such other period as the Court thinks fit, from applying to be a registered liquidator under the Corporations Act; and
(iii)Mr Iannuzzi be restrained for a period of 10 years, or such other period as the Court thinks fit, from holding the office of trustee in bankruptcy, liquidator, provisional liquidator, voluntary administrator, administrator of a deed of company arrangement, or as a receiver or other controller of property of any corporation, as that term is defined in s 57A of the Corporations Act.
On 23 April 2018 Perram J heard the Inquiry Application. On 16 July 2018 his Honour made an order, among others, that the Inquiry Application be heard at the same time as the hearing of the Commissioner’s claims for final relief: see Commissioner of Taxation v Iannuzzi [2018] FCA 1053.
On 1 May 2019 Stewart J fixed the hearing of the Inquiry Application and any subsequent inquiry for three days commencing on 17 July 2019.
As part of their preparation for hearing the Commissioner and Mr Iannuzzi exchanged lists of affidavits and other documentary evidence on which they intended to rely as well as objections to each other’s evidence.
On 5 July 2019 Johnson Winter & Slattery (JWS), the solicitors for Mr Iannuzzi, sent an email to MinterEllison attaching a letter of the same date (5 July 2019 Letter) and draft orders. The 5 July 2019 Letter included (as written):
2Our client’s health has deteriorated. In those circumstances, and given the ongoing toll that the Proceeding is taking on our client, he is prepared to consent, without admission, to the orders sought in the Amended Originating Processed filed on 3 May 2019 (OP) as appropriately modified in the form enclosed with this letter.
3As to the modifications, we note that prayer 5 of the OP seeks compensation for each of the companies the subject of the Proceeding (Companies) for any loss sustained because of our client’s alleged breach of duty as a liquidator. Our client does not consider that your client has put evidence before the Court which would support an order of compensation in respect of any of the Companies. Further, the Court will not be able to quantify the alleged loss suffered by the individual Companies on the basis of the evidence before the Court. As such, our client would be willing to consent to orders that the registration of any of the Companies of your client’s choosing be reinstated and that a liquidator of your client’s choice be appointed to any of the Companies, who may then pursue compensation.
4While our client considers that the Court would be able to make the orders enclosed on the basis of the evidence currently before it, we understand that you may consider that an agreed statement of facts is required. Accordingly, we are in the process of preparing one and, to that end, we ask that you provide us with a word version of your client’s OP.
(Emphasis in original.)
On 9 July 2019 MinterEllison responded to the 5 July 2019 Letter. As to the suggestion made by Mr Iannuzzi that certain companies the subject of the proceeding be reinstated, that letter included:
Finally, our client welcomes your client’s offer to consent to orders reinstating Companies of our client’s choosing and to appoint new liquidators to these entities. However, and for the avoidance of any doubt, our client does not consider that such orders would obviate the need for any compensation to be paid by your client. As you and your client would be aware, the ability of any replacement liquidator to pursue compensation would no doubt be contingent upon our client expending further time and expense in dealing with, funding and indemnifying any replacement liquidator to pursue that claim, with which the Court is currently seized within these proceedings, and as to which our client will invite the Court to take a view concerning your client’s conduct, as a whole, over all of the liquidations which are the subject of these proceedings.
Thereafter the parties exchanged further correspondence including in relation to a preliminary hearing of the proceeding scheduled for 15 July 2019 at 2.15 pm for the purpose of addressing and determining objections to the tender of evidence.
On the morning of 15 July 2019 JWS communicated with the Court on behalf of the parties notifying it that Mr Iannuzzi had withdrawn his objections to the tender of the Commissioner’s evidence but requesting that the proceeding remain listed at 2.15 pm that afternoon to address other matters.
At 2.15 pm on 15 July 2019 the proceeding was listed before Stewart J. At that time the Commissioner handed up a document titled “Agreed Statement of Facts” which had been served by Mr Iannuzzi on the Commissioner but which was not agreed between the parties. As described by Mr Hughes, this document contained a statement of admissions made by Mr Iannuzzi for the purposes of the Court making certain orders sought by the Commissioner in the amended originating process.
On 16 July 2019, at the request of the Court, the parties each provided their written submissions in relation to relief. MinterEllison also provided the Court with draft orders to be made by consent.
The hearing before Stewart J
The Inquiry Application was listed for hearing commencing on 17 July 2019. At that hearing:
(1)the Agreed Statement of Facts was tendered and marked as an exhibit. While it was titled “Agreed Statement of Facts” it was not agreed to by the Commissioner and was, as set out above, treated as a statement of concessions or admissions made by Mr Iannuzzi for the purpose of the proposed orders;
(2)all of the documents referred to in the Agreed Statement of Facts were tendered;
(3)all of the documents referred to in the Commissioner’s submissions on relief which were not referred to in the Agreed Statement of Facts were tendered, save for a psychologist’s report served by Mr Iannuzzi on the Commissioner;
(4)a document titled “Admission made by the defendant relevant to paragraph 17 of the Commissioner’s submissions” was tendered; and
(5)at the commencement of the hearing senior counsel appearing for the Commissioner, Mr McLure SC, provided the Court with a revised form of the proposed draft consent orders which had been amended to include two additional proposed orders at paragraphs 5 and 6. The additional orders concerned reinstatement of the registration of certain companies (Draft Consent Orders).
The Agreed Statement of Facts was a detailed document which included a concession by Mr Iannuzzi that he had “in relation to each of the companies subject of the proceeding failed to exercise reasonable care and diligence in his conduct of the relevant liquidation or administration”: at [14]. Relevantly the companies included RC Group and the Tabuso Group.
In relation to RC Group the Agreed Statement of Facts included (omitting document identification numbers):
(1)by way of introduction that:
104.At all material times, RC Group was owned and controlled by George Khalil, brother of Fred Khalil.
105.On 18 August 2014, the members of RC Group resolved to wind up the company voluntarily and appoint Iannuzzi and Godfrey as joint and several liquidators.
(2)under the heading “Inadequate disclosure in [declaration of independence and relevant relationships and declaration of indemnities (DIRRI)]”:
107.On 25 August 2014, Iannuzzi circulated the First Report to Creditors in respect of RC Group, which amongst other things, annexed a DIRRI signed by Iannuzzi.
108.The DIRRI:
…
d)failed to disclose the Banq Referral Relationship in circumstances where the Company’s director was the brother of Fred Khalil of Banq; and
e)failed to disclose that Iannuzzi and Godfrey had received a number of referrals from Gino Cassaniti, an employee of RC Group, and director of Original Banq.
(3)under the heading “Investigations conducted by liquidators and inadequate disclosure to creditors” that:
(a)in about August 2014 the Commonwealth Bank of Australia (CBA) informed Veritas Advisory that RC Group held two accounts with it, details of which were provided, and that Messrs Iannuzzi and Godfrey:
failed in August 2014, or at any time before August 2016 to obtain the bank statements referred to in the preceding paragraph from the CBA. In failing to do so, Iannuzzi and Godfrey failed to identify or investigate transactions totalling more than $6 million, including more than $888,885.00 in cash withdrawals, which were possibly unfair preferences within the meaning of s 588FA of the Corporations Act and therefore possibly voidable transactions within the meaning of s 588FE of the Corporations Act made by RC Group to various entities within the period 6 months before the relation-back day …
(at [110]-[111]);
(b)on 1 September 2014 Mr Iannuzzi chaired the first meeting of creditors of RC Group during which two issues were raised, one concerning whether there were other companies of which the director had been a director which had been placed into liquidation and the other concerning why all business activity statements (BAS) for RC Group had been lodged at the same time, both of which Mr Iannuzzi said he would investigate: at [112];
(c)in his final report to creditors Mr Iannuzzi failed to disclose confirmation of the two bank accounts held by RC Group, failed to report to creditors in relation to companies of which the director had been a director and which had been placed into liquidation in the last seven years and failed to report on any investigations undertaken in relation to lodgement of the BAS at the same time: at [120]; and
(d)on 28 August 2015 the Deputy Commissioner sent a letter to Mr Iannuzzi advising him of his concerns with Mr Iannuzzi’s conduct of the liquidation of RC Group and on 10 September 2015 Mr Iannuzzi responded to that letter but, in doing so, failed to disclose correspondence which had passed between his office and the CBA: at [121]-[123].
In relation to the Tabuso Group the Agreed Statement of Facts included:
(1)that at all material times the companies in the Tabuso Group were owned by Mr and Mrs Tabuso or entities associated with them: at [173];
(2)under the heading “Conduct of liquidations” that:
(a)on 16 December 2014 Mr Iannuzzi approved the transfer of a phone line from Inter Management Group to Interfreight 2: at [177];
(b)a reasonably competent liquidator in Mr Iannuzzi’s position would reasonably have suspected the possibility that the persons in control of the Tabuso Group companies were involved in activity to deliberately liquidate the companies in the group and transfer the assets of the group to a new entity, in the circumstances set out relating to the phone line transfer: at [178];
(c)a reasonably competent liquidator in Mr Iannuzzi’s position would have suspected that some or all of the proofs of debt provided by Banq Accountants on behalf of Interfreight 2 and Diesel Dan 2 in relation to each of the Tabuso Group companies warranted further investigation in the circumstances there set out including that Interfreight 2 and Diesel Dan 2 had been registered on 5 September 2013, a date after the Tabuso Group companies had ceased trading: at [183];
(d)the proofs of debt submitted by Banq Accountants were admitted to proof by Mr Iannuzzi for the amounts stated, except that those lodged by Diesel Dan 2 were admitted as debts owing to Diesel Dan 1 and Mr Iannuzzi did not disclose to creditors any investigations which he undertook to establish the veracity of the proofs of debt: at [184];
(e)in his DIRRI attached to the first report to creditors Mr Iannuzzi failed to disclose his professional relationship with Banq Accountants and failed to provide an updated DIRRI to disclose that relationship: at [185]-[186], [190]; and
(f)in his final report to creditors Mr Iannuzzi failed to provide explanations for a number of matters as set out in the Agreed Statement of Facts: at [191]-[195].
In the course of the hearing on 17 July 2019 in considering paragraph 5 of the Draft Consent Orders, which concerned reinstatement of particular companies, the following exchange took place between the Court, Mr McLure SC and senior counsel for Mr Ianuzzi, Mr Pike SC (as his Honour then was):
His Honour: Yes. There was a point that I overlooked and that’s you were going to explain to me order 5.
Mr McLure:Yes. So at paragraph 6 of the originating process, the Commissioner seeks orders for compensation – it’s paragraph 5? All right. Sorry. Thank you. Your Honour can see that there is no order agreed for the compensation as part of this process. The alternative avenue to seek compensation is to have liquidators appointed to these companies, some of them have to be reregistered, and then for such newly appointed liquidator to pursue Mr Iannuzzi for compensation, or, for that matter, pursue anyone else for compensation.
What we are asking your Honour to do, by consent, is for that topic to be stood over until 30 August 2019 so that the Commissioner can give consideration to whether or not he would wish to fund that activity, bearing in mind there’s an issue about what would be the likely proceeds to be obtained from pursuing those actions, whether it be the ability of Mr Iannuzzi to satisfy a judgment or some other potential respondent, and we would also have to identify who an appropriate liquidator would be. And as to paragraph 6, we would urge your Honour to make that order to signify the court’s interest in ensuring that these kind of matters are brought to the attention of people who are involved, or agencies that are involved, in the regulation of insolvency practitioners.
His Honour: I’m not sure that I have schedule A to the amended originating process.
…
Mr McLure: Well, schedule A is the list of the companies and schedule B is the –
…
His Honour: But, now, is that relief – so the relief covered by paragraph 5 of the amended originating process is for compensation for the defendant – it’s that the defendant compensate each of the companies. Yes. In order for that to happen, the companies would have to be – those that have been deregistered would have to be reregistered.
Mr McLure:Yes. Yes.
His Honour: So, I mean, my question is really twofold, I suppose. One is: is the foreshadowed relief of your order 5, which is to say the reinstatement of the registration of the companies listed in schedule A, is that covered by the process in this case? And then, secondly, is it competent for me to make that order in this case or are there other parties that needed to have been notified or anything else to have occurred?
Mr McLure:There would certainly be some other procedural steps that would need to occur. For example, in terms of appointing new liquidators, we would need to obtain consents and so on. Would your Honour excuse me one moment. So there’s steps that we would need to take to make..
His Honour: But that would be revisited on – or visited on a future occasion.
Mr McLure:Yes.
His Honour: Yes.
Mr McLure:But in terms of power, that’s, we submit, plainly within both section 536 of the Corporations Act, in terms of making any order necessary to give effect to the objects of that provision. But we need not trouble your Honour with that issue today. We’re just asking your Honour to defer that issue until 30 August 2019, by which time we will have made some decisions, that is the Commissioner will have made some decisions about what, if anything, he wants to do about that.
His Honour: And does that – that deferral doesn’t depend on me having made a decision on paragraphs 1 to 4 and given reasons for it. So, in other words, I can make order 5 now.
Mr Pike:Yes.
Mr McLure:That’s right. And …
His Honour: And I shouldn’t wait, because it may be that my reasons, or, indeed, my orders, don’t come until after 30 August or - - -
Mr McLure:That’s right. I think Mr Pike will correct me, but I think we both agree that that’s an order your Honour could make by consent, without having been satisfied about the underlying material.
His Honour: It’s a case management order, really. Yes. Yes. Thank you, Mr McLure. Mr Pike.
Mr Pike:May it please the court, can I just then address, just briefly, before I come back to a few other matters, and hopefully I will be able to be brief, just the orders that my learned friend was just addressing. ...
In relation to order 5, as we understand what is contemplated by that is, rather than the Commissioner seeking compensation in these proceedings, as was originally proposed, what will occur is that the Commissioner will consider which of the companies he wishes to have reinstated, in other words and new liquidators appointed, that will occur as part of these proceedings and then the new liquidator, once appointed, will determine issues such as whether claims should be proceeded, including against my client or otherwise. So your Honour won’t need – once order 5 is made, and we would say your Honour can do that now, then once orders for reinstatement, such as they are necessary, are made at a future time, that will be done with any issue of compensation in these proceedings.
(Emphasis added.)
At the conclusion of the hearing Stewart J reserved judgment on the question of the relief sought in paragraphs 1 to 4 of the Draft Consent Orders and stood over the proceeding to 3 September 2019 for case management in relation to the making of orders for the reinstatement of registration of the companies contemplated by paragraphs 5 and 6 of the Draft Consent Orders.
Events leading up to and the making of the Reinstatement Orders
On 30 August 2019 MinterEllison sent a letter to JWS which included (as written):
As you will recall, on the last occasion his Honour noted that the listing on 3 September 2019 would be for case management in relation to the making of orders for the reinstatement of the registration of the companied listed in Schedule A of the Amended Originating Process unless the proposed orders were by consent and the parties were able to satisfy his Honour that the making of those orders was justified.
In light of his Honour’s comments, we are instructed to give notice to your client that our client intends to seek the reinstatement of RC Group and the Tabuso Group of Companies, and the appointment of Ms Gayle Dickerson of KPMG as liquidator of these entities upon reinstatement, in accordance with the enclosed draft short minutes of order.
Could you please confirm by 10 am on 2 September 2019 whether your client consents to these draft short minutes of order?
The Commissioner’s draft orders enclosed with MinterEllison’s letter sought reinstatement of the registration of the RC Group and the companies in the Tabuso Group, the appointment of Ms Dickerson as liquidator of the reinstated companies, that ASIC be provided with a copy of the orders and that there be liberty to apply on two days’ notice. The proposed draft orders did not seek any order to the effect of Order 3 of the Reinstatement Orders.
By email sent at 1.22 pm on 2 September 2019 MinterEllison sought an urgent response to its 30 August 2019 letter. JWS responded later that afternoon noting that its client was prepared to consent to the Commissioner’s proposed orders, that he was also prepared to consent to “the attached orders” and querying whether the Commissioner was prepared to consent to orders in the form of the “attached orders”. The “attached orders” amended the form of the Commissioner’s proposed orders and introduced for the first time proposed orders in the form of Orders 3 and 4 of the Reinstatement Orders.
By email sent at 4.02 pm on 2 September 2019 the Commissioner agreed to the orders in the form proposed by Mr Iannuzzi referred to in the preceding paragraph. In its email MinterEllison noted that there would be a joint appointment of Ms Dickerson and Mr Vaughan as liquidators, provided further amended orders reflecting that change and informed JWS that the Commissioner wished to provide the proposed orders to the Associate to Stewart J with submissions in the form attached. JWS consented to that course on Mr Iannuzzi’s behalf and provided a signed copy of the proposed orders by return email.
Later on 2 September 2019, prior to the making of the Reinstatement Orders, MinterEllison sent an email to the Associate to Stewart J, copying in JWS, attaching the Commissioner’s three page submission in support of the proposed orders. Those submissions addressed the requirements of s 601AH(2) of the Corporations Act, namely the Commissioner’s standing as a “person aggrieved” and the factors which the Court may take into account in considering whether it is just that the registration of a company be reinstated. The submissions focussed (at [5]) on Mr Iannuzzi stating that:
The Commissioner submits that the reinstatement of RC Group and each of the Tabuso Group companies is just in the following circumstances:
(a)Prior to RC Group and the Tabuso Group of companies being deregistered, the defendant was appointed as liquidator of each of these companies. In this regard, the Statement of admissions made by the defendant for the purposes of this proceeding and provided to the Court on 15 July 2019 (Statement of Admissions), contains a number of admissions concerning the defendant’s negligence in carrying out his duties as external administrator of these companies prior to their deregistration, including, by way of example, failing to investigate in excess of $6 million in potential uncommercial transactions in relation to RC Group, including more than $1.3 million in cash transactions.
(b)The reinstatement of the companies identified is necessary in order for any claims for compensation against the defendant to be pursued for the benefit of the creditors of these companies. For this purpose, the draft consent orders include orders providing for Ms Gayle Dickerson of KPMG, a registered liquidator, to be appointed as the liquidator of RC Group and each of the Tabuso Group of companies upon reinstatement.
(c)The defendant, as the person likely to be prejudiced by the reinstatement of the companies, has been notified of, and consents to, the orders for reinstatement of these companies.
(d)The public interest weighs in favour of reinstatement in circumstances where the new liquidator’s pursuit of any such claims against the defendant will not only potentially assist the creditors of the companies, but also assist in generally deterring other registered liquidators from engaging in misconduct.
(Emphasis in original.)
Mr Iannuzzi did not file or serve any written submissions in support of the proposed orders.
On 2 September 2019 by consent between the Commissioner and Mr Iannuzzi the Court made the Reinstatement Orders. On the evening of 2 September 2019 the Associate to Stewart J sent an email to the solicitors for the Commissioner and Mr Iannuzzi stating:
His Honour was satisfied that the Commissioner is a person aggrieved and that it is just that the Companies registration be reinstated and has accordingly made the attached orders in Chambers this afternoon. They will be available on the Commonwealth Courts Portal shortly. The case management tomorrow has been vacated and no attendance is required.
(Emphasis in original.)
Pursuant to the Reinstatement Orders, ASIC reinstated the registration of the RC Group and each of the companies in the Tabuso Group and Ms Dickerson and Mr Vaughan were appointed as the joint and several liquidators of each of those companies.
Final orders and reasons for judgment
On 7 November 2019 the Court made the following orders by consent:
(1)Mr Iannuzzi’s name be removed from the register of liquidators maintained pursuant to the Corporations Act;
(2)Mr Iannuzzi be restrained for a period of 10 years from applying to be a registered liquidator under the Corporations Act;
(3)Mr Iannuzzi be restrained for a period of 10 years from applying to be registered as a trustee in bankruptcy and from accepting appointment as liquidator, provisional liquidator, voluntary administrator, administrator of a deed of company arrangement, or as a receiver or other controller of property of any corporation, as that term is defined in s 57A of the Corporations Act; and
(4)Mr Iannuzzi pay the Commissioner’s costs of the proceeding as agreed or assessed.
See Commissioner of Taxation v Iannuzzi (No 2) [2019] FCA 1818.
In Iannuzzi (No 2) Stewart J made findings about Mr Iannuzzi’s conduct. By way of example in relation to RC Group and Mr Iannuzzi’s final report to creditors at [75]-[78] his Honour said:
75Mr Iannuzzi failed to report to creditors in relation to the names of the nine companies that had been placed into liquidation in the last seven years of which the director had also been a director. He also failed to report to creditors on any investigations and findings in relation to why all business activity statements for RC Group had been lodged at the same time and to set out what investigations he had made into the $100,000 proof of debt filed by George Khalil to ensure the claim was legitimate.
76On 28 August 2015, the Deputy Commissioner of Taxation sent a letter to Mr Iannuzzi raising some of the above failures in the report. On 10 September 2015, Mr Iannuzzi sent a letter in response advising that, amongst other things, the CBA had failed to advise of the bank accounts held by RC Group, despite the earlier correspondence from CBA confirming the existence of two accounts (see above at [67]).
77Although not admitted by Mr Iannuzzi, I find this to be a breach by him of his duties of diligence and candour. A liquidator acting with the requisite diligence and candour would have taken the necessary care to ensure that the correspondence to the Deputy Commissioner was accurate and would have advised of the bank accounts that he had been advised of by the CBA.
78Further, a candid liquidator presented with the information by the Deputy Commissioner would have made enquiries of his staff and CBA to investigate the matters raised and would have reported on these investigations to the Deputy Commissioner who was a major creditor.
In relation to Mr Iannuzzi’s conduct of the external administration of companies in the Tabuso Group at [125] his Honour concluded that:
Mr Iannuzzi admits that the matters in paragraphs [104]-[124] above reasonably suggest that he has failed to exercise reasonable care and diligence in the exercise of his powers and the discharge of his duties as external administrator of each of the companies in the Tabuso Group. Once again, in my judgement Mr Iannuzzi’s conduct in relation to these companies fell very substantially below the level that the law expects of a liquidator.
At [188]-[196] of Iannuzzi (No 2) under the heading “Mr Iannuzzi’s insight with regard to his conduct” Stewart J set out, in effect, a history of the proceeding, albeit through the prism of Mr Iannuzzi’s conduct of his defence, as follows:
188As indicated, this proceeding was commenced in August 2017. Annexed to the originating process was a schedule in the nature of a pleading setting out more than 90 pages of detailed factual averments on the basis of which it was said that the relief sought was justified. That schedule was subsequently amended, in May 2019, but for the most part the amendments merely added references to documents underpinning the averments and made very few substantive changes.
189The Commissioner also served affidavits and 10 volumes of documents that had been produced under subpoenas to third parties. However, the attitude taken by Mr Iannuzzi right up to the week of the final hearing, which is to say over a period of nearly two years, was to deny what was put against him and to raise obstacles to the Commissioner’s case.
190Mr Iannuzzi served a defence, in December 2017, in which certain averments that were subsequently admitted were denied, and which resisted even an inquiry into his conduct, never mind conclusions with regard to that conduct that might justify sanctions.
191Mr Iannuzzi served an affidavit, in March 2018, in which he either denied averments which he has subsequently admitted, or he sought to place an exculpatory gloss on averments in respect of which he now accepts that findings critical of his conduct should be made.
192Mr Iannuzzi also objected to the admissibility of most of the documents sought to be relied on by the Commissioner, which objection was rejected by Perram J. As indicated, Mr Iannuzzi then sought leave to appeal against that decision but that application was dismissed. Even thereafter, albeit on marginally different terms, Mr Iannuzzi continued to press the objection to the Commissioner’s evidence. Whereas the original objection that was rejected by Perram J was that the documents were not admissible at the stage of deciding whether there should be an inquiry, it was now contended that the documents were not admissible at the stage of determining whether any disciplinary orders should be made against Mr Iannuzzi.
193The hearing of the evidence objection was listed for 15 July 2019, two days before the hearing on the inquiry. Both sides of the case filed submissions, and I prepared for the hearing. Then, on the morning of the hearing on the objection, I was advised through my Associate that Mr Iannuzzi withdrew his objection but that the matter should still be called. When it was called, I was advised that Mr Iannuzzi was prepared to make the admissions contained in the so-called statement of agreed facts and that orders would likely be sought by consent.
194It was an admitted fact in the proceeding that as recently as 23 May 2019, that is to say only about seven weeks before the hearing, Mr Iannuzzi in a counselling session with a psychologist expressed some disbelief, frustration and significant feelings of injustice surrounding the matter. He said that he perceived he had been unfairly targeted by the Commissioner. Thus, at that late stage Mr Iannuzzi lacked an appreciation of the delinquency of his conduct.
195Notwithstanding that history of dogged opposition and resistance, at what might quite appropriately and without exaggeration be described as the eleventh hour, Mr Iannuzzi accepted much of the wrongdoing alleged against him. Senior counsel on his behalf candidly and rightly accepted that his new-found insight, coming when it did, was “belated” and that that counts against him and points in favour of a strong sanction. In that regard, Mr Iannuzzi was prepared to consent to very serious, “life-changing” consequences. Senior counsel accepted, without prompting, that Mr Iannuzzi’s conduct constituted “a very significant departure” from the standard expected of him.
196It goes without saying that Mr Iannuzzi’s conduct in defending the matter until very near the end has taken up a considerable amount of time and effort of the Court which is to the detriment of other litigants, and it has put the Commissioner to considerable effort and costs not all of which will be made good by the party/party costs order to which he has consented. These matters all count against him in so far as an appropriate penalty is concerned.
Supreme Court Proceedings
Voidable transaction proceedings
On 23 April 2021 RC Group and the Liquidators in their capacity as liquidators of RC Group commenced proceeding number 2021/115083 in the Supreme Court (RC Group Voidables Proceeding) against a number of defendants including, among others:
(1)Runcity, the first applicant in the Tabuso Application;
(2)Mrs Khalil, the first applicant in the Kito Application;
(3)Kito Investments, the second applicant in the Kito Application;
(4)Mr Borg, the first applicant in the Borg Application;
(5)Borg Family, the second applicant in the Borg Application;
(6)746 Greendale Road, the third applicant in the Borg Application;
(7)Givana (Holdings), the first applicant in the Givana Application; and
(8)Givana, the second applicant in the Givana Application.
On 1 April 2021 Interfreight 1 and the Liquidators in their capacity as liquidators of Interfreight 1 commenced proceeding number 2021/00091488 in the Supreme Court (Interfreight Proceeding) against a number of defendants including, among others:
(1)Interfreight 2, the third applicant in the Tabuso Application;
(2)Diesel Dan 2, the fourth applicant in the Tabuso Application; and
(3)Mrs Tabuso, the sixth applicant in the Tabuso Application.
On 9 August 2021 Silverhills Haulage, Co-ordinated Transport, Diesel Dan 1, Fara Logistics, Inter Management Group and the Liquidators in their capacity as liquidators of each of those companies commenced proceeding number 2021/00227002 in the Supreme Court (Silverhills Haulage Proceeding) against a number of defendants including, among others:
(1)Interfreight 2;
(2)Diesel Dan 2;
(3)Runcity;
(4)Mr Tabuso, the fifth applicant in the Tabuso Application;
(5)Mrs Tabuso; and
(6)Mr Ligori, the seventh applicant in the Tabuso Application.
As described by Mr Vaughan:
(1)in the RC Group Voidables Proceeding, the Interfreight Proceeding and the Silverhills Haulage Proceeding (collectively Supreme Court Proceedings) the Liquidators seek relief under s 588FF(1) of the Corporations Act for uncommercial transactions pursuant to s 588FC of that Act and unreasonable director-related transactions pursuant to s 588FDA of the Corporations Act (Statutory Claims). In each of the proceedings, the Liquidators rely upon the Reinstatement Orders in relation to those claims;
(2)for example, in the RC Group Voidables Proceeding at [79] to [83] of their statement of claim the plaintiffs contend that:
79 On 27 December 2015, RC Group was deregistered by ASIC.
80On 2 September 2019, in Federal Court of Australia Proceedings Number NSD1510/2017, Stewart J ordered that:
(a)ASIC reinstate RC Group as a company pursuant to section 601AH(2) of the Corporations Act;
(b)pursuant to section 601AH(3)(d) of the Corporations Act, when calculating the period ending three years after the relation-back day for RC Group, the period between the date of deregistration and the date of the order shall be disregarded;
(c)the Second Plaintiffs be appointed as the joint and several liquidators of RC Group.
81On or about 3 September 2019, RC Group was reinstated as a company by ASIC.
82By reason of the matters pleaded in paragraphs 74, 79, 80(b) and 81 above, for the purposes of calculating the period ending three year after the Relation-back Day, the period between 27 December 2015 and 2 September 2019, being a period of 1345 days, is to be disregarded.
83By reason of the matter pleaded in paragraphs 74, 79, 80(b) and 81 above, the period ending three years after the relation-back Day in respect of RC Group is 23 April 2021.
(3)in the RC Group Voidables Proceeding the Liquidators also seek accounts and equitable compensation for moneys had and received and money retained without lawful entitlement; and
(4)there remain 28 defendants to the RC Group Voidables Proceeding against whom the Liquidators claim relief totalling $11,577,157. The number of defendants has reduced because:
(a)since the commencement of the proceeding the Liquidators have settled their claims against nine of the 39 named defendants on confidential terms; and
(b)on 2 November 2022 AKA Civil Australia Pty Ltd (in liquidation) and AKA (NSW) Pty Ltd (in liquidation), the ninth and tenth defendants to the proceeding, were placed into liquidation.
Mr Vaughan also notes in relation to the transactions the subject of the Statutory Claims that:
(1)in the case of RC Group, they comprise electronic funds transfers or cash withdrawals, which, in turn, comprise a portion of the total of over $29 million which was withdrawn from the company’s accounts;
(2)in the case of the Interfreight Proceeding and Silverhills Haulage Proceeding, they comprise electronic funds transfers and the disposition of the assets of the plaintiff companies;
(3)the Liquidators have not been able to identify any or any material benefit to the plaintiff company that made the payment in each case;
(4)there was no or no adequate record that would explain the nature of the transaction or otherwise be expected to be retained in the books and records of RC Group or the companies in the Tabuso Group; and
(5)the Liquidators have not been able to identify any or any adequate consideration provided by the recipient to the plaintiff companies.
Negligence proceedings
Two further proceedings have been commenced:
(1)on 17 August 2020 RC Group and the Liquidators commenced proceeding number 2020/00239747 in the Supreme Court against Mr Iannuzzi, Maggie Chan in her capacity as the executrix of the estate of the late Mr Godfrey and Veritas Advisory as defendants (RC Group Negligence Proceeding); and
(2)on 7 December 2020 the Tabuso Group companies and the Liquidators commenced proceeding number 2020/00347646 in the Supreme Court against Mr Iannuzzi, Ms Chan in her capacity as the executrix of the estate of the late Mr Godfrey and Veritas Advisory as defendants (Tabuso Negligence Proceeding).
In the RC Group Negligence Proceeding and the Tabuso Negligence Proceeding (together Negligence Proceedings) the plaintiffs seek damages for breach by the defendants to those proceedings of ss 180, 181, 182 and 183 of the Corporations Act and of their general law duties. Mr Vaughan explains that those proceedings were commenced in circumstances where Mr Iannuzzi, by the Agreed Statement of Facts, admitted that he breached various duties owed to RC Group and to the Tabuso Group and where in Iannuzzi (No 2) at [220] the Court acknowledged that there were possible losses to creditors.
According to Mr Vaughan, the damages sought by the Liquidators in the Negligence Proceedings cannot be quantified until the Supreme Court Proceedings have concluded.
Consequences if the Reinstatement Orders are discharged or varied
Mr Vaughan understands that if the Reinstatement Orders are set aside or varied the Statutory Claims would be time barred by reason of s 588FF(3) of the Corporation Act and those claims, which are assets available to RC Group and the Tabuso Group companies, would be extinguished.
Mr Vaughan notes that the Liquidators have alternative causes of action on foot by which they seek to recover the value of the Statutory Claims, including the Negligence Proceedings and the alternative equitable causes of action pleaded in the RC Group Voidables Proceeding. However, the Liquidators consider that there are risks to their ability to recover the full value of the Statutory Claims by way of those alternative causes of action. In particular:
(1)Mr Vaughan believes that there is generally a better chance of recovery against a wide variety of defendants (many of whom, such as Mr and Mrs Tabuso, own real estate) than there would be in pursuing a smaller number of defendants, particularly the defendants to the Negligence Proceedings;
(2)the defendants to the Negligence Proceedings have pleaded in their respective defences that their liability is limited pursuant to the CPA Australia Professional Standards (Accountants) Scheme with the effect that damages are limited to $2 million; and
(3)Mr Vaughan understands that Mr Iannuzzi and Veritas Advisory, two of the three defendants to the Negligence Proceedings, have effectively said in correspondence that they are impecunious, the insurer has denied coverage and the Liquidators ought to expect no meaningful recovery from those proceedings.
The Applicants’ evidence
The following Applicants gave evidence in support of their respective applications:
(1)Mrs Khalil;
(2)Mr Borg;
(3)Mr Tabuso;
(4)Ms Tabuso; and
(5)Mr Ligori.
In addition:
(1)Christine Louise Perry, the solicitor for the Tabuso Applicants, gave evidence; and
(2)the Borg & Givana Applicants sought to rely on evidence given by Gino Robert Cassaniti.
Mr Cassaniti
Gino Robert Cassaniti is the sole director of Givana (Holdings) and Givana. Givana (Holdings) and Givana are respectively the fifteenth and thirty-eighth defendants in the RC Group Voidables Proceeding and on 22 December 2021 they filed their defence in that proceeding in which they contend that the claim was filed out of time and is statute barred.
Mr Cassaniti did not make himself available for cross-examination. On that basis, objection was successfully taken to most of his evidence. Accordingly, his evidence was limited to the following:
(1)at no time prior to the making of the Reinstatement Orders was Mr Cassaniti informed about this proceeding or that the Commissioner and Mr Iannuzzi intended to seek the Reinstatement Orders; and
(2)at no time prior to or after the making of the Reinstatement Orders until 7 October 2021 when Mr Cassaniti was served with the statement of claim dated 23 April 2021 commencing the RC Group Voidables Proceeding (RC Group Voidables Proceeding SOC) was he made aware of the allegations pleaded against him in that proceeding.
Mrs Khalil
Katherine Khalil is the sole director of Kito Investments which is the trustee of the Kito Investment Trust, a discretionary trust originally established for the benefit of Mrs Khalil and her former husband Faouzi (Fred) Khalil.
Mrs Khalil and Kito Investments are respectively the third and fourth defendants to the RC Group Voidables Proceeding.
Mrs Khalil deposes that:
(1)at no time prior to the making of the Reinstatement Orders was she informed about this proceeding or that the Commissioner and Mr Iannuzzi intended to seek the Reinstatement Orders;
(2)at no time prior to or after the making of the Reinstatement Orders until she was served with the RC Group Voidables Proceeding SOC on 7 October 2021 was she made aware of the allegations in that statement of claim;
(3)at no time prior to or after the Reinstatement Orders were made was she directed to preserve her records;
(4)given that more than nine years have passed since the events in dispute in the RC Group Voidables Proceeding, her memory of that time is not as good as it was and many of her records have been thrown away, lost or destroyed; and
(5)in November 2013 she moved house.
Between about July 2011 and December 2016 Mrs Khalil worked at Banq Accountants. Mr Khalil was a director of and also worked at Banq Accountants and both Mrs Khalil and Kito Investments were clients of Banq Accountants. During the period that Mrs Khalil worked at Banq Accountants she had three children with her former husband, in January 2012, November 2013 and March 2017, and after each birth she took at least one year off. Mrs Khalil explains that:
(1)some of the records and documents that are relevant to the allegations made against her and Kito Investments in the RC Group Voidables Proceeding were likely previously stored with Banq Accountants;
(2)Banq Accountants moved premises in January 2017 from a property located in Punchbowl to one located in Silverwater where it now trades as “Stratum Accountants”;
(3)she does not think that Banq Accountants still trades and she does not know where the records went;
(4)she has been informed by Mr Khalil that sometime before 2018 Mr Cassaniti took all of Banq Accountants’ records to a storage facility on Mr Tabuso’s farm and that rainwater got into the storage facility and destroyed the records stored there; and
(5)despite having attempted to do so by telephone, online and by attending the Bankstown branch, she has been unable to obtain banking records for the period 2011 to 2014 from the National Australia Bank (NAB), where she and Kito Investments banked. In cross-examination Mrs Khalil explained that the reason given to her by the NAB for not being in a position to provide banking records for that period was because they were more than seven years old.
On 16 February 2017 Mr and Mrs Khalil separated. On 23 June 2021 they agreed on consent orders for their property settlement and on 24 September 2021 orders were made. Mrs Khalil says that, had she been served with the RC Group Voidables Proceeding SOC or been given notice of the allegations made in the RC Group Voidables Proceeding, she probably would have settled with Mr Khalil on different terms based on advice from her lawyers. While she does not know what different orders she would have sought, she says that she would have obtained legal advice about that matter and any impact of the proceeding on her.
In cross-examination Mrs Khalil was taken to a document titled “Application for voluntary deregistration of a company” for Kito Investments dated 16 May 2022 (Kito Investments Deregistration Application). Despite the fact that Mrs Khalil is Kito Investments’ sole director, she said that she did not sign that document, she had not seen the document before it was shown to her in cross-examination and she could not recall discussing it with anyone in May 2022. The Kito Investments Deregistration Application was lodged by Stratum Accountants Pty Ltd. Mrs Khalil accepted that she had worked for Stratum Accountants since about 2019.
Mr Borg
Michael Borg is the sole director of Borg Family, the sixth defendant to the RC Group Voidables Proceeding, and from 1 December 20217 to 3 August 2022 was the sole director of 746 Greendale Road. He is also the fifth defendant in the RC Group Voidables Proceeding.
Mr Borg noted that in the RC Group Voidables Proceeding relief is sought against:
(1)him in relation to certain payments totalling $600,000 allegedly made between 17 June 2013 and 10 June 2014; and
(2)Borg Family in relation to certain payments totalling $70,000 allegedly made between 6 June 2014 and 1 July 2014.
Mr Borg, Borg Family and 746 Greendale Road have filed a defence in the RC Group Voidables Proceeding.
Mr Borg was not informed at any time prior to 2 September 2019, when the Reinstatement Orders were made, of the hearing of this proceeding before Stewart J or that the parties at the time intended to apply for the Reinstatement Orders.
At no time prior to or after the making of the Reinstatement Orders until he was served with the RC Group Voidables Proceeding SOC on or about 12 October 2021 was Mr Borg made aware of the allegations made in that statement of claim.
The sums claimed by the plaintiffs from Mr Borg and Borg Family arise out of a loan made by Mr Borg to RC Group at Mr Khalil’s request. Mr Borg says that it was a term of the loan that fixed interest of $70,000 would be paid and he directed that sum to be paid to Borg Family.
Mr Borg says that a decade has passed since he entered into the loan agreement with RC Group, he has changed accountants since that time as a result of a dispute he had with the accountants who were assisting him at the time of the loan agreement and, due to the passage of time, he has not retained a copy of the loan agreement and, because of the dispute, is unable to procure a copy from his former accountants. In summary Mr Borg says that, as a result of the passage of time and his dispute with his former accountants, it has been very difficult for him to locate the loan agreement.
The RC Group Voidables Proceeding continues to cause Mr Borg and his family both emotional and financial distress.
Mr Borg was cross-examined. He accepted that Borg Family and 746 Greendale Road used Banq Accountants as their accountants but ceased to do so in about 2016 to 2017.
Mr Borg was taken to the transcript of his examination carried out by the Liquidators on 6 October 2020 and directed to the following exchange:
Q:You haven’t produced any documents, pursuant to an order for production addressed to yourself, have you?
A: I don’t know.
Q: Well, have you or not?
A: Privilege. I don’t know.
Q:But you have got boxes of documents relating to your business records back at your home, is that correct?
A: I have got a few little things.
Q: Well, you said boxes earlier, didn’t you?
A: Well, I have given them whatever they have wanted if they have asked for it.
Mr Borg accepted that he has boxes of documents containing his business records, including in relation to Borg Family and 746 Greendale Road, at his home. He searched through those boxes but did not find “the paper he needed”, namely the loan agreement for the moneys that he loaned personally to RC Group.
Mr Borg was also directed to the following evidence which he gave during the course of the Liquidators’ examination on 6 October 2020:
Q:Are you, did you receive money from RC Group (Aust) Pty Ltd between 17 June 2013 and 9 June 2014?
A: Mate, I honestly, can’t remember. I would have to have a look.
Q: Did you or your company receive some $600,000 from RC Group (Aust)?
A: Mate, I - I doubt it. I doubt it.
Q:RC Group (Aust), as I've shown you through the invoices, is a labour hire company. What would RC Group (Aust) Pty Ltd be paying you or your company money?
A: Mate, I don't know. I would have to look at the bank statements. I don’t know.
Q: Well, before you can’t- - -?
A:I can’t remember. It was that long ago. I’ve had that much money in and out of my accounts. I can’t remember.
Mr Borg said that at the time he gave that evidence, 6 October 2020, it was truthful but it no longer is truthful. That is because he has received money from RC Group, namely the money relating to the loan agreement that he has not been able to locate. Mr Borg also said that is the nature of the defence he wishes to rely on in the RC Group Voidables Proceeding.
Mr Borg accepted that during the course of the Liquidators’ examination he was asked questions on this topic. When it was put to him that in responding to those questions he said nothing about a loan agreement he gave the following evidence:
Well, I didn’t know. Like I said, I’ve had millions of dollars go through my accounts. To be asked on the spot, I answered as I did, I – which I didn’t know, which now I know where it’s from or whatnot and what you’re going to ask me, so I’m answering your truthfully. Yes, I did receive it.
Mr Tabuso
John Tabuso is married to Mirjana Tabuso. He is the director of Diesel Dan 2 and Interfreight 2 and was the director of Calabro Real Estate from 8 June 1999 to 6 July 2013, at which time Mrs Tabuso became the sole director and shareholder of Calabro Real Estate.
Mr Tabuso is not educated. He has difficulty reading and understanding documents.
In the early 1990’s Mr Tabuso started a mechanical workshop, working on cars and trucks mostly for himself. His only formal qualification is a trade certificate in mechanical repairs. Over time, with experience, he has developed an understanding of engines.
In about 1998 Mr Tabuso started working as a truck driver and in about 1999 he started a trucking transport business with Jose Sanchez and commenced freight transport on an intra and interstate basis (Trucking Business). Mr Sanchez left the Trucking Business in about 2005.
The development of the Trucking Business
At first, the Trucking Business used contractors who drove their own trucks. However, over time, as it grew, the Trucking Business was able to purchase its own trucks and engage drivers who drove trucks for the various companies allocated to perform work.
In around 1999 Mr Tabuso’s accountant, Sam Cassaniti, recommended and implemented a structure whereby a series of separate companies were incorporated or transferred to him and trusts were established for two principal reasons: asset protection; and the reduction of the cost of workers’ compensation where administrative staff and truck drivers had different rates for workers’ compensation risk and calculation of premiums. One company, Calabro Real Estate, leased or bought the plant and equipment and any real estate and other companies rented the property or equipment from it. Calabro Real Estate had two trusts: one in which property was owned; and a second in which trucks and equipment were owned. As at the date Mr Tabuso swore his affidavit, Calabro Real Estate continued to trade in this capacity.
Interfreight (Aust) Pty Ltd, which was incorporated in about June 2003, was the main trading entity. It conducted the Trucking Business which at that time was mostly interstate freight transport. By about 2005 Calabro Real Estate owned around eight trucks and Interfreight (Aust) received purchase orders and rented premises and trucks from Calabro Real Estate to carry out the transport work.
On 30 August 2007 Diesel Dan 1 was incorporated on the advice of Mr Tabuso’s accountant, at the time Christian Fox. Diesel Dan 1 supplied fuel and tyres for, and carried out maintenance and repairs on, the trucks and related equipment such as forklifts and pickers.
Initially, the Trucking Business’ operations were located at 12 Ash Road, Prestons. In 2009 it moved to 395 Devonshire Road, Kemps Creek, into premises owned by Runchief Pty Ltd. Mr Tabuso worked seven days a week in the Trucking Business and by 2010 it had grown and owned between 15 to 18 trucks.
Over the years, the Trucking Business bought or “opened” several additional companies, which were “ownerdriver” companies including in about 2007 Silverhills Haulage, in about 2010 Fara Logistics and in about 2012 Machinery Moves and Brisbane Inner City Tilt Tray. The Trucking Business maintained these companies to keep their customer bases or to have differentiation in the market with a view to maximising work received from allocators and loading agents, who booked freight transport and who were generally unable to use a single freight company. Mr Tabuso explained that occasionally, on behalf of Interfreight (Aust), he would make a customer angry. That customer would then ring up, for example, Silverhills Haulage on its different number and engage it to carry the freight. However, it was always Interfreight (Aust), and later, Interfreight 1, that would perform the work.
By around 2009, Interfreight (Aust) employed about 15 full-time employees and used subcontractors, who were mostly truck drivers. Other employees included booking staff, loading staff, administrative and accounting staff and allocators who distributed the jobs. Some employees were employed in different companies or split their time between several companies which paid all or part of their wages. Most employees were employed by Interfreight (Aust). The costs of premises rental, insurance premiums, accounting fees and wages were spread across all entities, as invoiced or based on usage. Diesel Dan 1 would invoice Interfreight (Aust) or Calabro Real Estate, as appropriate, for fuel, repairs, service charges and tyres. The Trucking Business was carried out entirely within the group.
As set out in the preceding paragraph, most employees were employed by Interfreight (Aust). However, from time to time, employees would provide services to other companies and the relevant employee’s wages would be based on the entities for whom they were working. For example, Mr Ligori, a mechanic, primarily carried out tasks for Diesel Dan 1 in repairing and maintaining trucks. While his wages were generally paid by Interfreight (Aust), some were paid by Diesel Dan 1.
Mr Tabuso has engaged a number of accountants over the years for his personal affairs and for the Trucking Business. For the Trucking Business: from 2012 to 2016 he engaged Mr Khalil of Banq Accountants; and since 2016 he has engaged Andrew Dunstan of Strategic Accountants.
Mr Tabuso’s illness
In 2013 Mr Tabuso fell ill having suffered a heart attack. He underwent several surgeries and was in hospital for some time. Following this, he was required to lower his stress levels and not work as hard.
Mr Tabuso explained that while he was away from work and attending to his medical condition, the Trucking Business unravelled. There was no-one in the business with his knowledge to direct staff or to manage the intercompany payment obligations. Mr Tabuso returned to work on a part-time basis and was unable to manage the Trucking Business.
In about mid 2013, Mr Khalil advised Mr Tabuso that the Trucking Business needed to be “cleaned up” and that he should start new entities and phase out and wind down, over time, the “old companies”. Accordingly, Interfreight 2 and Diesel Dan 2 were incorporated and they began servicing the Trucking Business while the older entities were wound down. In cross-examination Mr Tabuso agreed that this occurred a little while after he was made a bankrupt in July 2013 and that until about 2017 the registered office of each of the newly incorporated companies was Banq Accountants.
Mr Tabuso explained that there were difficulties with the transition process, including, for example, that customers would often continue to pay Interfreight (Aust) or Interfreight 1 rather than the new company, Interfreight 2, which had performed the work. Where that occurred funds had to be remitted to Interfreight 2 but sometimes administrative staff would use those funds to pay intercompany expenses in order to save double movement of funds.
RC Group
At one point Vince Macri, Mr Tabuso’s solicitor, advised Mr Tabuso to use a payroll services company to employ all employees. Accordingly, in about 2013 or 2014 Mr Tabuso raised the engagement of a payroll services company with Mr Khalil. A few weeks later Mr Khalil informed Mr Tabuso, among other things, that he had “set [Mr Tabuso] up with [RC Group]”. Mr Khalil provided details about the process Mr Tabuso would need to undertake to enable RC Group to pay the Trucking Business’ employees.
Mr Tabuso says that had nothing to do with the business of RC Group other than engaging it to handle the Trucking Business’ payroll.
The Tabuso Group goes into liquidation
By the end of 2014, when the transition of the Trucking Business from the “old companies”, which included the Tabuso Group companies, to the newly incorporated companies was complete, Banq Accountants advised Mr Tabuso to put the “old companies” into liquidation. This occurred in December 2014 at which time Messrs Iannuzzi and Godfrey were appointed as liquidators of those companies.
The only debt owing to a creditor outside the Trucking Business of which Mr Tabuso was aware at the time of the liquidations was a debt of approximately $20,000 owed to the ATO by, he thinks, Silverhills Haulage. After the liquidations of the “old companies” Mr Tabuso attempted, without success, to pay the outstanding debt to the ATO, but there were penalties and other difficulties which he did not understand and the ATO refused to deal with him directly. Mr Tabuso assumed this had all been resolved through the liquidation process.
Mr Tabuso understands that in about December 2014 Messrs Iannuzzi and Godfrey in their capacity as the liquidators, through Banq Accountants, took all the books and records for each of the “old companies” including electronic accounting records.
Books and records
In about 2016 Mr Tabuso was in dispute with Banq Accountants over its fees. It was at that time that Mr Tabuso moved his accounting business from Banq Accountants to Mr Dunstan of Strategic Accountants. Mr Tabuso’s dispute with Banq Accountants continued for a long time. From about 2015 Mr Tabuso sought the Trucking Business’ accounting records from Banq Accountants but it claimed a lien over them and, as the fees dispute was never resolved, Banq Accountants refused to release any of the Trucking Business’ records.
By letter dated 25 March 2015 Mr Iannuzzi, in his capacity of liquidator of each of the Tabuso Group companies, sought from Mr Tabuso, in his capacity as a former director, the books and records in his possession for each of those companies. In cross-examination Mr Tabuso agreed to two propositions: first, that he did not produce any documents in response to that request because he said “the accountant had it all”; and secondly, that he did not respond to Mr Iannuzzi’s letter.
Mr Tabuso said that during the liquidation of the Tabuso Group companies he did not have access to a single document that related in any way to their financial affairs but that he asked Banq Accountants several times to provide the documents.
Mr Tabuso explained that most of the records for the Tabuso Group were hard copy but there were some computer files and that Banq Accountants also took those files. Mr Tabuso could not say whether the Tabuso Group maintained copies of the latter but said that he would not know how to keep such a file and that he did not even know how to turn on a computer.
Mr Tabuso understands that in order to comply with taxation, accounting and workers’ compensation obligations, Mr Dunstan had to work from bank statements. In about 2016 the Trucking Business purchased new computers and installed new accounting software which was used in connection with Diesel Dan 2 and Interfreight 2. However, it became apparent in cross-examination that it was possible in 2020, in response to orders for production issued by the Liquidators, to produce from computer records material dating back to 2014. I pause to observe that Mr Tabuso’s evidence on this topic is difficult to accept.
It is apparent that he simply ignored Mr Iannuzzi’s request for the provision of the books and records of the Tabuso Group companies. He attempts to explain that attitude by his evidence that he did not have access to any documents relating to those companies as they were with Banq Accountants. Assuming that to be the case, I do not accept that, if requested to do so, those accountants would not provide the material sought. The dispute with Banq Accountants did not, on Mr Tabuso’s evidence, arise until “about 2016” so that could not have been a reason for the failure to produce the material. In any event, as became apparent in cross-examination, computer records were held which enabled production of material from 2014.
The reinstatement of the registration of the Tabuso Group and subsequent events
Neither Mr Tabuso, Interfreight 2 or Diesel Dan 2 were given an opportunity to be heard in relation to the Reinstatement Orders.
In about September 2020 Mr Tabuso was served with a summons for public examination (Tabuso Summons) which he attended on 30 September 2020. The Tabuso Summons also required Mr Tabuso to produce the documents listed in the schedule to it. Mr Tabuso said that he undertook a thorough review of all books and records in his possession at that time and produced to the Court all records in his possession in answer to the Tabuso Summons. He was put to significant personal and legal expense in that process for which he was not reimbursed by the Liquidators.
At [123] his Honour expressed his agreement with Lindgren J’s observations that it was not possible to make an order under the equivalent of s 601AH(3)(d) of the Corporations Act to the effect that the reinstatement of the registration of a company only took effect from the date of the order but went on to observe that the ancillary orders sought had the retrospective effect provided for in subs (5).
At [136] of Bell Group McKerracher J said that there was no reason to limit the power in s 601AH(3)(d) of the Corporations Act in the manner contended for by the Commissioner and that there was nothing in the extrinsic materials to support a suggestion that there was a legislative intention to diminish or limit the purpose of the power. His Honour continued:
The power has always existed to achieve the primary purpose of treating a company upon reinstatement as though it had continued in existence from the date of deregistration, that is to say, the ‘as-you-were’ position.
At [137] McKerracher J addressed the Commissioner’s submission that any of the plaintiffs’ proposed orders would be inconsistent with the limited form of retrospectivity provided for by s 601AH(5) because they sought to restore beneficial ownership of the shares to the deregistered companies during the period of deregistration. His Honour said:
It is true that the adjective ‘limited’ has been used by the courts in relation to the retrospectivity described in the first sentence of s 601AH(5), but in my view, that retrospectivity underlies the whole purpose of reinstatement. Section 601AH(5) provides for a fictional deemed continuation of the company‘s corporate existence during the period of deregistration. There are no other automatic retrospective legal consequences, but that is why there is the facility within the Corporations Act to make both validating provisions and any other orders considered appropriate in the circumstances in conjunction with the reinstatement. Section 601AH(3)(d) clearly permits an ancillary order which has significant, not merely incidental, retrospective consequences.
There have been several cases in which a calculation of time order has been made, or where the jurisdiction to make such an order was accepted. As the Commissioner and the Liquidators submit those cases demonstrate that there is no inconsistency between s 601AH(5) and the making of such an order, where considered appropriate in the circumstances of the particular case. In order for the Applicants to succeed in their general contention that s 601AH(3)(d) cannot be used to “deny…the retrospective effect provided for in s 601AH(5)”, by treating the company as not in existence for the purposes of calculating the period in which a cause of action can be commenced by or against the company, I must find that those decisions are plainly wrong.
The decisions identified by the Applicants are: Re Harule Pty Ltd; Ex parte Olita Super Readymixed Concrete Pty Ltd (in liq) (1994) 13 ACSR 500; Re Regional Planners; Re Austral Bronze; Pagnon; and Del Borrello v Australian Securities and Investments Commission [2008] WASC 48.
One of the decisions referred to in the preceding paragraph, Pagnon, is a decision of an intermediate court of appeal in relation to Commonwealth legislation. I would not depart from a decision of an intermediate appellate court in another jurisdiction on the interpretation of Commonwealth legislation unless satisfied it was plainly wrong: see Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at [135]. In Pagnon the plaintiff had been employed by Croway Pty Ltd and in the course of his employment, prior to 19 June 1996, alleged that he injured his back. Croway was deregistered on 11 December 1998 and on 22 June 1999 Mr Pagnon gave notice to the defendant under s 186 of the Workers’ Compensation Act (now repealed) by the service of a draft claim to be filed in the District Court of Queensland which was filed on the following day.
The proceeding before the Queensland Court of Appeal was for leave to appeal from an answer given by the District Court of Queensland on the following question of law: whether s 11 of the Limitation of Actions Act 1974 (Qld), imposing a three year limitation on the bringing of an action in negligence for damages for personal injury, applied. The primary judge found that it did not. Section 186 of the Workers’ Compensation Act (now repealed) relevantly provided:
(1)If a worker suffers injury in respect of which compensation under this Act is payable in circumstances conferring a right of action for damages in respect of the injury against the worker’s employer who –
(a) has died; or
(b) being a corporation, has ceased to exist; or
(c) cannot be served with process;
a person who might have obtained judgment for damages against the employer in respect of the injury may recover by action against the board, as if the board were the employer, the sum that would have been payable by way of damages to that person by the board under section 183(1) had judgment been given against the employer.
…
(3)Subsection (1) does not confer on a person any right or advantage that the person would not have had if action had been brought or pursued against the employer of the worker who has suffered injury
In considering the application before the Court McPherson JA observed at [3] that there was a consistent line of authority in relation to statutory provisions like s 186 holding that they create a new cause of action that is not complete until all the requirements for bringing the action are complied with at which time the cause of action then accrues. At [7] his Honour concluded that the right conferred was a new right or cause of action against the substituted defendant subject to the unexpired duration of the limitation period fixed by s 11 of the Limitation of Actions Act. McPherson JA then turned to consider the effect of s 186(3) of the Workers’ Compensation Act observing, among other things, at [8] that:
A plaintiff who sues under s. 186(1) may still be liable to be defeated by a defence under s. 11 of the Limitation of Actions Act after the lapse of three years from the date on which the cause of action against the board accrued under s. 186(1). It is true that, if only because of the need to give notice under s. 186(2), the date of accrual of the statutory cause of action under s. 186(1) would invariably be later than that of the common law action; but that is an inevitable incident of creating or characterising it as a new cause of action. It is a consequence of imposing the additional requirement of notice under s. 186(1) rather than of anything in subs. (2) of s. 186. It is, moreover, in my opinion a right or advantage which, quite apart from s. 186, the plaintiff already enjoyed and enjoys in an action for damages against a corporate employer that has been dissolved.
McPherson JA set out his reasons for reaching that conclusion. In doing so his Honour considered the effect of dissolution of a company on time running under a limitation period. In that context his Honour considered the provisions of Pt 5A of the Corporations Law (which at the time was in force). At [14]-[15] his Honour relevantly said:
[14]The same policy is now manifest in the provisions of Part 5A of the Corporations Law, which took effect on or from 1 July 1998. On deregistration, as it is now called, a company ceases to exist: s. 601AD(1). However, under s. 601AH(1), ASIC may reinstate the registration of a company if satisfied that it ought not to have been deregistered. Section 601AH then proceeds:
….
When reinstated, the company is taken to have continued in existence as if it had not been deregistered: s. 601AH(5).
[15]It will be seen that the Court’s power to order reinstatement under s. 601AH(2) is predicated only on the need to be satisfied that it would be ‘‘just’’ to do so. That is the criterion which the courts have applied in the past in cases of this kind: see, for example, ... Furthermore, the power conferred by s. 601AH(3)(b) is now very wide, and extends to making ‘‘any other order’’ that the Court ‘‘considers appropriate’’. I would have no doubt that under this provision the court could, and in a case like the present would if asked to do so, exercise the power under s. 601AH(3)(b) to order that the time between dissolution of the company on 11 December 1998 and the expiration of the limitation period under s. 11 of the Limitation of Actions Act 1974 should not be counted against the plaintiff here. There is every reason why it would be ‘‘just’’ to adopt that course.
At [16] McPherson JA referred to s 601AG of the Corporations Law by way of reinforcing the conclusion his Honour had reached. Relevantly in that case the defendant to the action was an insurer.
Pagnon has been considered and applied on a number of occasions. In Re Regional Planners at [15]-[28] Brereton J undertook a detailed analysis of the relevant cases, including Pagnon, and was satisfied that there was jurisdiction under s 601AH(3)(d) to make an order which would have the effect of suspending the limitation period in respect of any action that the plaintiff might have against the company. There is nothing that the Applicants point to in that analysis that leads me to conclude that it or the decisions upon which it is based are plainly wrong.
I am not satisfied that there is any inconsistency, as contended by the Applicants, between the making of an order to suspend time for the purposes of a limitation period on reinstatement of a company and the statutory fiction in s 601AH(5) of the Corporations Act. As Brereton J found to be the case in Re Regional Planners, s 601AH(3)(d) empowers the Court in an appropriate case to make such an order. However, whether such an order should be made will be a matter for the Court’s discretion.
THE COMMISSIONER’S APPLICATION
As I have determined that an order should be made discharging Order 3 of the Reinstatement Orders, the Commissioner’s Application arises for determination. That application relies on s 601AH(3)(d) or, in the alternative, s 536 of the Corporations Act (now repealed).
I can deal briefly with the Commissioner’s Application insofar as it relies on s 601AH(3)(d) of the Corporations Act. An order cannot be made afresh under that section nunc pro tunc for the same reasons as I have concluded that Order 3 should be discharged, namely because s 588FF(3) of the Corporations Act is a jurisdictional gateway and provides for the only means by which the period in s 588FF(1) can be extended. Section 601AH(3)(d) does not empower the Court to make an order extending time (or suspending time) for the purposes of s 588FF(1).
I turn to consider former s 536 of the Corporations Act as an alternate source of power.
Section 536 was headed “Supervision of liquidators” and provided:
(1A) In this section:
liquidator includes a provisional liquidator.
(1) Where:
(a)it appears to the Court or to ASIC that a liquidator has not faithfully performed or is not faithfully performing his or her duties or has not observed or is not observing:
(i) a requirement of the Court; or
(ii) a requirement of this Act, of the regulations or of the rules; or
(b)a complaint is made to the Court or to ASIC by any person with respect to the conduct of a liquidator in connection with the performance of his or her duties;
the Court or ASIC, as the case may be, may inquire into the matter and, where the Court or ASIC so inquires, the Court may take such action as it thinks fit.
(2)ASIC may report to the Court any matter that in its opinion is a misfeasance, neglect or omission on the part of the liquidator and the Court may order the liquidator to make good any loss that the estate of the company has sustained thereby and may make such other order or orders as it thinks fit.
(3)The Court may at any time require a liquidator to answer any inquiry in relation to the winding up and may examine the liquidator or any other person on oath concerning the winding up and may direct an investigation to be made of the books of the liquidator.
The Commissioner’s submissions
The Commissioner submits, having regard to the relevant transitional provisions, that because this proceeding was commenced by originating process filed on 25 August 2017, repealed s 536 of the Corporations Act continues to apply. He submits that in order to determine the scope of the Court’s power under former s 536(1) of the Corporations Act it is necessary first to consider the process and purpose of an application under former s 536.
As to process, the Commissioner submits that an application under former s 536 involves a three step process: first, the Court determines whether an inquiry into the liquidator’s conduct is warranted. The applicant must establish something about the liquidator’s conduct constituting a sufficient basis for ordering an inquiry; secondly, if the Court orders an inquiry it is conducted in the nature of an adversarial proceeding and the Court must make a judgment in relation to the liquidator’s conduct; and thirdly, if the Court decides from the inquiry that the liquidator’s conduct was deficient, then the Court can make appropriate orders.
As to purpose, the Commissioner submits that the purpose of an inquiry under former s 536 is for the regulation, supervision, discipline and correction of liquidators in upholding the public interest in honest and efficient administration of liquidations. He says that the predominant factor is to consider what is needed by way of regulation, supervision, discipline and correction for the due administration of the winding up in the public interest and, given this, the action which the Court considers fit to take pursuant to s 536(1) of the Corporations Act necessarily depends upon the nature of the deficiency found at the enquiry stage, referring to BL & GY International Co Ltd v Hypec Electronics Pty Ltd (2010) 79 ACSR 558; [2010] NSWSC 959 at [45].
The Commissioner submits that former s 536 of the Corporations Act was directed to the supervision of liquidators by the Court and ASIC and, in that context, s 536(1) empowered the Court to “take such action as it thinks fit”. He contends that this broad power encompasses the ability for the Court to make any consequential orders necessary to remedy delinquent conduct of a liquidator, including where that liquidator has not faithfully performed his or her duties or not observed a requirement of the Corporations Act. The Commissioner submits that former s 536(1) supplies ample power for upholding Order 3 of the Reinstatement Orders in the present circumstances and that this is particularly so in circumstances where:
(1)the companies were deregistered prior to a competent liquidator undertaking necessary investigations in compliance with the Corporations Act;
(2)the companies were deregistered prior to a competent liquidator commencing proceedings in respect of viable claims or seeking, within time, an extension of time under s 588FF(3)(b) of the Corporations Act; and
(3)the causes of action now pursued were not statute barred at the time of deregistration.
The Commissioner submits that former s 536 does not expressly limit the persons against whom an order may be made or the types of orders which may be made. He contends that it is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words, referring to The Owners of the Ship “Shin Kobe Maru” v Empire Shipping Co Inc (1994) 181 CLR 404 at 421. The Commissioner submits accordingly that the omission of such qualifications supports the Court’s power under former s 536 extending to the making of declarations, orders or directions in favour of or against persons other than the relevant liquidator.
The Commissioner submits that the word “action” may be understood to encompass the full gamut of powers available to the Court such as the making of declarations, orders or directions and that it is consistent with an interpretation that the legislature intended to confer on the Court a full range of options subject to the Court’s own powers and what it “thinks fit”. The Commissioner submits that this interpretation is supported by former s 536(2) of the Corporations Act and that the other order or orders which the Court may make under the provision are unconstrained, other than by reference to the Court thinking the order fit.
The Commissioner also submits that former s 536 does not expressly limit the Court’s power except by what the Court “thinks fit” to give effect to the purpose of the section and the matters arising from the enquiry and that there is no reason to read down the breadth of the Court’s power subject to the express qualification of what the Court “thinks fit”.
The Commissioner submits that the effect of Order 3, or a nunc pro tunc order to the same effect, would ameliorate harm to the reinstated companies resulting from Mr Iannuzzi’s breaches of duty so as to preserve the companies’ otherwise statute barred potential claims under s 588FF(1) of the Corporations Act. Such an order would put those companies back to the position they would have been in, but for Mr Iannuzzi’s deregistration of them, and is analogous to a compensation order made in favour of an applicant against a liquidator. The Commissioner contends that both Order 3 of the Reinstatement Orders and a compensation order would, in practicable terms, help put the applicant or the relevant company back to its former position had the breach of duty or misfeasance not occurred.
The Commissioner submits that the practical effect of Order 3 would, to the extent possible, restore the proper conduct of the external administration of the companies and would ensure that potential claims which the companies may have against third parties are duly investigated and appropriately pursued for the benefit of creditors. He contends that in that sense former s 536 is sufficiently broad and flexible to support orders, such as Order 3, which seek to realise such an objective.
The Commissioner denies that the Court lacks power to make Order 3 pursuant to s 601AH(3)(d) of the Corporations Act but submits that if the Court decides otherwise the absence of a more appropriate remedy would weigh in favour of the Court exercising its discretion to make an order pursuant to former s 536(1).
For completeness I note that the Liquidators make no application. In their written submissions they sought to adopt the Commissioner’s submissions in relation to the availability of former s 536 of the Corporations Act as a source of power to make the orders sought. However, in oral submissions (at T 244) Mr McInerney SC, senior counsel for the Liquidators, informed the Court that it was not a matter for the Liquidators to make any submissions about the operation of former s 536. I will in the circumstances treat the Liquidators’ position on the Commissioner’s Application as neutral.
Consideration
Section 536 does not provide an alternate source of power.
It confers only broad or general powers which cannot be used to circumvent the jurisdictional requirement set out in s 588FF(3) of the Corporations Act. My reasons set out above apply equally here.
Further, in the event I am found to be wrong about the operation of s 588FF of the Corporations Act for the reasons that follow in my opinion former s 536 does not empower the Court to make an order in the form of Order 3 of the Reinstatement Orders.
There was no dispute that, despite its repeal with effect from 1 March 2017, s 536 continues to apply to this proceeding. That is because of the operation of s 1617 of the Corporations Act. The Commissioner submits and the Applicants accept that:
(1)with effect from 1 March 2017 s 536 was replaced by s 90-10 of the IPS;
(2)section 90-10 of the IPS applies in relation to an “ongoing external administration”, whether or not the matter to be reviewed occurred before, on or after the “commencement day”: see s 1615 of the Corporations Act. Pursuant to rr 10.25.01(1) and (2) of the Corporations Regulations 2001 (Cth) “commencement day” is defined to be 1 September 2017 and an “ongoing external administration” is defined to mean an external administration of a company that started before 1 September 2017 and ends after that day;
(3)the general rule set out in the preceding subparagraph is subject to s 1617 of the Corporations Act which relevantly provides that if a proceeding is brought under the “old Act” before the “commencement day” (as defined in r 10.25.01(1) of the Corporations Regulations) the “old Act” continues to apply to the proceeding despite the amendments and repeals made by Sch 2 to the Insolvency Law Reform Act 2016 (Cth) i.e. the IPS; and
(4)relevantly the “old Act” means the Corporations Act as in force immediately before 1 March 2017 (see s 1551 of the Corporations Act) and “proceedings” for the purpose of s 1617 of the Corporations Act is defined to include “civil and criminal proceedings, inquiries by the court, enforcement processes and any other processes”: see s 1617(4) of the Corporations Act.
However, that s 536 continues to apply to the proceeding is not sufficient. The question is whether it empowers the Court to make an order in terms of Order 3 of the Reinstatement Orders.
The Court’s jurisdiction to undertake an inquiry under former s 536 of the Corporations Act is supervisory with the Court performing a regulatory role.
Hall v Poolman (2009) 75 NSWLR 99 concerned the operation of repealed s 536. The applicants were the liquidators of companies in the Reynolds Wines Group, Messrs Hall and Carter. They sought leave to appeal from an order that there be an inquiry into their conduct pursuant to s 536 of the Corporations Act and, if leave was granted, they sought on appeal to set aside that order. The relevant conduct related to legal proceedings commenced and prosecuted by the liquidators with the assistance of a litigation funder.
Commencing at [52] the Court of Appeal (Spigelman CJ, Hodgson JA and Austin J) considered the interpretation of s 536. At [53]-[55] the Court of Appeal relevantly observed that:
53The court must bear in mind the place of s 536 in the regulatory system established under Australia’s corporations legislation when construing the section. It must be recognised that this section, together with the virtually identical provision applicable to controllers of the property of a corporation in s 423, is a broadly expressed supervisory jurisdiction over the conduct of persons in control of the affairs of a corporation, in circumstances where normal market forces and the exercise by shareholders of their rights to control are attenuated or non-existent. These powers are one part of a range of regulatory powers conferred on the court and/or ASIC to ensure the lawful, orderly and efficient conduct of the affairs of corporations during such a period. The detailed regulatory scheme found in the Corporations Act (Cth) manifests in this, as in so many other respects, the central significance of corporate conduct for the economic and social life of the nation.
54Powers that can be characterised in this way are not to be narrowly construed, nor confined by fine distinctions. Where a statute grants a power to a superior court to deploy as the circumstances of the case necessitate, it is a basic rule of statutory interpretation that the grant should not be narrowly construed or cut back unless there are very clear reasons for doing so: …
55Notwithstanding the plenary nature of the powers conferred by s 536, the case law has developed a number of principles bearing on the exercise of the court’s discretion to order an inquiry. It is pertinent to mention four matters in the present context, which we shall address under the headings:
•the “prima facie case” submission;
•the court’s supervisory role over the conduct of liquidators;
•the relevance of alternative remedies;
•the analogy with inquiries into the conduct of trustees in bankruptcy.
At [61]-[68] the Court of Appeal considered the second of those principles, namely the court’s supervisory role over the conduct of liquidators including at [61] and [66]-[67] that:
61The powers conferred by s 536 have a common element, namely that they are powers of a regulatory nature concerned with the supervision of liquidators of all kinds. The court has a long-established role in the supervision of court appointed liquidators, and s 536 confers a statutory supervisory jurisdiction in respect of liquidators of all kinds.
…
66It is pertinent to recognise that the powers conferred by s 536(1) are vested in both the court and the regulator, and therefore that the court is performing a regulatory role, in the sense that its function under s 536, like the function of ASIC under the section, is supervisory. …
67The court’s supervisory role is recognised in the frequently cited observations of McLelland J in Northbourne Developments (at 438), where his Honour said of the predecessor to s 536 that it “is concerned with aspects of the conduct of liquidators which are liable to attract sanctions or control for what might broadly be described as disciplinary reasons.” For subsequent applications of this approach, see, for example, Re Glowbind Pty Ltd (In Liq); Takchi v Parbery (at 217 [21]; 465 [21]), per Burchett AJ; Australian Securities and Investments Commission v Forestview Nominees Pty Ltd (Receivers and Managers Appointed) (2006) 236 ALR 652 at 656 [15]; 24 ACLC 1567 at 1570 [15]; Leslie v Hennessy (at 656 [4]); Australian Securities and Investments Commission v Edge (2007) 211 FLR 137 at 152 [48], per Dodds-Streeton J; Vink v Tuckwell, per Robson J.
In Hypec there were two applications before the Supreme Court in relation to orders that had previously been made for an inquiry to be undertaken pursuant to former s 536(1)(b) of the Corporations Act. By one of those applications the new liquidator of the company, Hypec Electronics Pty Ltd, sought to expand the description of the inquiry which had been previously ordered so as to include “an inquiry as to damages, as to the amount of loss incurred or suffered by [Hypec] by reason of misconduct of the former liquidator of [Hypec], David Patrick Watson”: at [8].
In considering the scope of s 536, Barrett J considered whether s 536(1) was capable of supporting an order for compensation by a derelict liquidator. After tracing the history of the provision and relevant authorities, his Honour concluded that it was, stating at [36] that:
In summary, s 536 appears capable of supporting a compensatory order where the court finds, upon inquiry, that an order of that kind is necessary to the effectuation of the section’s purpose; and, while the court’s power in that respect is not otherwise subject to limitation and a s 536 inquiry is not the occasion for trying an action for negligence or breach of duty, general law concepts will necessarily inform the decision whether such an order should be made and the basis on which it should be made.
Justice Barrett then considered the purpose of former s 536 of the Corporations Act observing first at [37] that:
While it may thus be open to the court, in a s 536(1) case, to order that loss to the estate be made good by the liquidator, the order the court makes in a particular instance will be determined by the whole of the circumstances. What the court “thinks fit”, in s 536(1) terms, will be judged according to what is best calculated to achieve the purpose for which s 536 exists.
Again, after surveying the relevant authorities at [41] his Honour said:
As the several judicial statements about s 536 make clear, the emphasis is on regulation, supervision, discipline and correction of liquidators in the interests of honest and efficient administration of the estates of companies subject to winding-up. The interest to be served is a public interest. The section is not concerned in any direct way with vindication of private rights. Rather and as Steytler J said in GIS Electrical Pty Ltd v Melsom (2002) 43 ACSR 481; 172 FLR 218; [2002] WASCA 302 at [49] echoing an observation of McLelland CJ in Eq in Northbourne Developments Pty Ltd v Reiby Chambers Pty Ltd (1989) 19 NSWLR 434 at 438; 1 ACSR 79 at 83, it “is concerned with aspects of the conduct of liquidators which are liable to attract sanctions or control for what might be broadly described as disciplinary reasons”. The preoccupation is, as I put it in Re Bauhaus Pyrmont Pty Ltd [2006] NSWSC 742 at [4], with “the broader question of due administration of the winding up in the public interest”.
Commencing at [42] Barrett J set out the process to be followed in undertaking a proceeding under former s 536 of the Corporations Act noting it involved three stages. His Honour described the third stage at [45]-[46] as follows:
[45]If, having heard the competing submissions at the second stage, the court decides that the liquidator’s conduct was in some way deficient, it embarks upon the third stage and decides whether or not to make an order. The nature of the order will depend on the nature of the deficiency found. As noted above, the orders at the court’s disposal include an order that the liquidator make good loss occasioned by the liquidator’s deficient conduct. The predominant consideration, however, is effectuation of the purpose for which s 536 exists and, therefore, what is needed by way of regulation, supervision, discipline and correction for the due administration of the winding-up in the public interest.
[46]The power of the court at the third stage is the power to “take such actions it thinks fit”. But that power is not exercisable unless and until the second stage as been completed by means of an inquiry. This is the effect of the statutory language: “and where the court … so inquires, the court may take such action as it thinks fit” [emphasis added]. The court cannot take substantive action except as a consequence of an inquiry. It follows that it is not open to the court, as a matter of jurisdiction, to make an order simply on the basis that relevant parties consent to the making of the order.
It is clear from the authorities that former s 536 of the Corporations Act confers a supervisory jurisdiction on the Court and that its purpose is to discipline, correct and supervise the conduct of liquidators. It is with regard to that purpose that the power in former s 536(1) to take such action as the Court sees fit must be construed. The Commissioner points to no authority which supports his construction of former s 536 as permitting an order that by reason of a liquidator’s dereliction of duty the Court can exclude days for the purpose of calculating a period in which an action vested in the office of liquidator can be commenced.
It would be odd, if not perverse, if former s 536 of the Corporations Act permitted the Court, after concluding that a liquidator had not faithfully performed his or her duties, to make an order in terms of Order 3 of the Reinstatement Orders or to the effect of that sought by the Commissioner in paragraph 2 of his application. Such an order does not have as its purpose the disciplining, correction or supervision of the delinquent liquidator or for the “due administration of the winding up”. The section is concerned with the conduct of liquidators which is liable to attract sanctions or control for broadly disciplinary reasons. Any action taken as a result or as the Court sees fit must reflect that purpose.
By contrast such an order if made would have the effect of reducing the delinquent liquidator’s liability for compensation or damages, which seems to run counter to the purpose of former s 536, and would require third parties to defend claims made after the expiry of the period in which to bring such a claim prescribed by s 588FF of the Corporations Act, again to the financial benefit of the wrongdoer.
CONCLUSION
The Applicants have been successful in their applications to have Order 3 of the Reinstatement Orders discharged. The Commissioner has been unsuccessful in the Commissioner’s Application. The Liquidators sought no relief but adopted the Commissioner’s submissions in opposition to the Applicants’ applications.
In the circumstances, costs would ordinarily follow the event with the Commissioner and the Liquidators paying the Applicants’ costs of the Applicants’ applications and the Commissioner paying the Applicants’ costs of the Commissioner’s Application.
However, given the variations in costs orders sought by the parties, including that the Kito Applicants and the Borg & Givana Applicants seek orders for indemnity costs from Mr Iannuzzi and the Commissioner, I indicated during the hearing that I would reserve on the question of costs.
I will make orders requiring the parties to confer and to provide within 14 days of the date of publication of these reasons:
(1)if they can agree on their form, draft orders which give effect to my reasons, including, if agreement can be reached, on the question of costs or the manner in which any dispute as to costs is to be resolved with an appropriate timetable for the filing and service of affidavits and submissions, not exceeding eight pages in length in each case; or
(2)if they cannot agree on their form:
(a)each party is to provide their proposed draft orders including on the question of costs, the manner in which any extant applications for costs are to be dealt with and for a timetable for the filing and service of affidavits and submissions, not exceeding eight pages in length, in support of and in response to any application for indemnity costs by any of the Applicants; and
(b)the proceeding will be listed for case management hearing on 23 February 2024 at 9.30 am to resolve the form of orders to be made.
To the extent there are any issues to be resolved in relation to the question of costs of the various applications, unless any party requests an oral hearing they will be dealt with on the papers.
I certify that the preceding three hundred and nineteen (319) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Markovic. Associate:
Dated: 2 February 2024
SCHEDULE OF PARTIES
No: NSD 1510 of 2017
Applicants
Fourth Applicant:
DIESEL DAN (NSW) PTY LTD ACN 165 673 101
Fifth Applicant:
JOHN TABUSO
Sixth Applicant:
MIRJANA TABUSO
Seventh Applicant:
MAURIZIO LIGORI
Respondents
Third Respondent:
GAYLE DICKERSON AND STEPHEN ERNST VAUGHAN IN THEIR CAPACITY AS THE JOINT AND SEVERAL LIQUIDATORS OF RC GROUP AUSTRALIA PTY LTD (IN LIQUIDATION) ACN 164 000 462
Fourth Respondent:
ACN 128 613 016 PTY LTD (IN LIQUIDATION) (FORMERLY KNOWN AS SILVERHILLS HAULAGE AUSTRALIA PTY LTD) ACN 128 613 016
Fifth Respondent:
GAYLE DICKERSON AND STEPHEN ERNST VAUGHAN IN THEIR CAPACITY AS THE JOINT AND SEVERAL LIQUIDATORS OF ACN 128 613 016 PTY LTD (IN LIQUIDATION) (FORMERLY KNOWN AS SILVERHILLS HAULAGE AUSTRALIA PTY LTD) ACN 128 613 016
Sixth Respondent:
ACN 110 905 774 PTY LTD (IN LIQUIDATION) (FORMERLY KNOWN AS CO-ORDINATED TRANSPORT SOLUTIONS PTY LTD) ACN 110 905 774
Seventh Respondent:
GAYLE DICKERSON AND STEPHEN ERNST VAUGHAN IN THEIR CAPACITY AS THE JOINT AND SEVERAL LIQUIDATORS OF ACN 110 905 774 PTY LTD (IN LIQUIDATION) (FORMERLY KNOWN AS CO-ORDINATED TRANSPORT SOLUTIONS PTY LTD) ACN 110 905 774
Eighth Respondent:
DIESEL DAN PTY LTD (IN LIQUIDATION) ACN 127 303 682
Ninth Respondent:
GAYLE DICKERSON AND STEPHEN ERNST VAUGHAN IN THEIR CAPACITY AS THE JOINT AND SEVERAL LIQUIDATORS OF DIESEL DAN PTY LTD (IN LIQUIDATION) ACN 127 303 682
10th Respondent:
ACN 146 285 029 PTY LTD (IN LIQUIDATION) (FORMERLY KNOWN AS FARA LOGISTICS (AUST) PTY LTD) ACN 146 285 029
11th Respondent:
GAYLE DICKERSON AND STEPHEN ERNST VAUGHAN IN THEIR CAPACITY AS THE JOINT AND SEVERAL LIQUIDATORS OF ACN 146 285 029 PTY LTD (IN LIQUIDATION) (FORMERLY KNOWN AS FARA LOGISTICS (AUST) PTY LTD) ACN 146 285 029
12th Respondent:
INTER MANAGEMENT GROUP PTY LTD (IN LIQUIDATION) ACN 105 115 759
13th Respondent:
GAYLE DICKERSON AND STEPHEN ERNST VAUGHAN IN THEIR CAPACITY AS THE JOINT AND SEVERAL LIQUIDATORS OF INTER MANAGEMENT GROUP PTY LTD (IN LIQUIDATION) ACN 105 115 759
14th Respondent:
ACN 133 636 414 PTY LTD (IN LIQUIDATION) (FORMERLY KNOWN AS ITS – INTERFREIGHT TRANSPORT SOLUTIONS PTY LTD)
15th Respondent:
GAYLE DICKERSON AND STEPHEN ERNST VAUGHAN IN THEIR CAPACITY AS THE JOINT AND SEVERAL LIQUIDATORS OR ACN 133 636 414 PTY LTD (IN LIQUIDATION) (FORMERLY KNOWN AS ITS – INTERFREIGHT TRANSPORT SOLUTIONS PTY LTD)
16th Respondent:
GEORGE KHALIL
17th Respondent:
FRED KHALIL
18th Respondent:
KATHERINE KHALIL
19th Respondent:
KITO INVESTMENTS PTY LIMITED
20th Respondent:
MICHAEL BORG
21st Respondent:
BORG FAMILY PTY LIMITED
22nd Respondent:
746 GREENDALE ROAD GREENDALE PTY LTD
23rd Respondent:
THE GREAT BROTHERS PTY LTD
24th Respondent:
AKA CIVIL AUSTRALIA PTY LTD (IN LIQUIDATION)
25th Respondent:
AKA (NSW) PTY LTD (IN LIQUIDATION)
26th Respondent:
MAGIC GLASS PTY LIMITED
27th Respondent:
LEVEL 33 PROPERTY GROUP PTY LIMITED
28th Respondent:
THE HADD GROUP PTY LIMITED
29th Respondent
GIVANA (HOLDINGS) PTY LIMITED
30th Respondent:
CANER DOGAN
31st Respondent:
BORN PTY LTD
32nd Respondent:
EASTBORN PTY LTD
33rd Respondent:
SONIA HADDAD
34th Respondent:
JONATHON COOPER
35th Respondent:
ACE GADIS
36th Respondent:
ANNIE CRABBIE
37th Respondent:
NIZAR HAIDAR
38th Respondent:
MIRVAT HAIDAR
39th Respondent:
MONICA ABBOUD
40th Respondent:
PASCKAL MITRY
41st Respondent:
VICTOR PACE
42nd Respondent:
CATHERINE PACE
43rd Respondent:
SLAVEN SURLA
44th Respondent:
MARIAN RAHME
45th Respondent:
PETER ABBOUD
46th Respondent
GIVANA PTY LTD
47th Respondent:
MAGGIE CHAN IN HER CAPACITY AS THE EXECUTRIX OF THE ESTATE OF THE LATE MURRAY RODERICK GODFREY
48th Respondent:
VERITAS ADVISORY PTY LTD
49th Respondent:
DAVID NICHOLAS IANNUZZI
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