Commonwealth Bank of Australia v The Law Debenture Trust Corporation Plc [No 4] - [2018] WASC 165

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   COMMONWEALTH BANK OF AUSTRALIA -v- THE LAW DEBENTURE TRUST CORPORATION PLC [No 4] [2018] WASC 165
CORAM:   PRITCHARD J
HEARD:   9 - 11 APRIL 2018, 1 MAY 2018
DELIVERED          :   1 JUNE 2018
FILE NO/S:   CIV 2061 of 1996
BETWEEN:   COMMONWEALTH BANK OF AUSTRALIA
First Plaintiff
NATIONAL AUSTRALIA BANK LTD
Second Plaintiff
SOCIETE GENERALE AUSTRALIA LTD
Third Plaintiff
STANDARD CHARTERED BANK AUSTRALIA LTD
Fourth Plaintiff
WESTPAC BANKING CORPORATION
Fifth Plaintiff
HONGKONGBANK OF AUSTRALIA LTD
Sixth Plaintiff
BANCO ESPIRITO SANTO E COMERCIAL DE LISBOA
BANK FUR GEMEINWIRTSCHAFT AG
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
CREDITANSTALT-BANKVEREIN
CREDIT LYONNAIS
DRESDNER BANK AG
BANQUE INDOSEUZ
Seventh Plaintiffs
LLOYDS BANK PLC
CAISEE NATIONALE DE CREDIT AGRICOLE
GENTRA LTD
KREDIETBANK NV
GULF BANK KSC
DG BANK DEUTSCHE GENOSSENSCHAFTBANK
Eighth Plaintiffs
SKOPBANK
Ninth Plaintiff
AND
THE LAW DEBENTURE TRUST CORPORATION PLC
First Defendant
INSURANCE COMMISSION OF WESTERN AUSTRALIA
Second Defendant
Bell Group NV (in liq)
Third Defendant
COMMONWEALTH OF AUSTRALIA
Fourth Defendant
AND
THE LAW DEBENTURE TRUST CORPORATION PLC
First named Plaintiff by counterclaim
INSURANCE COMMISSION OF WESTERN AUSTRALIA
Second named Plaintiff by counterclaim
AND
AUSTRALIAN CONSOLIDATED INVESTMENTS LTD
GODINE DEVELOPMENTS PTY LTD
BELL RESOURCES DEVELOPMENTS PTY LTD
First Defendants by counterclaim
LLOYDS BANK PLC as representative of Lloyds Bank plc, Banco Espirito Santo E Comercial De Lisboa, Bank Fur Gemeinwirtschaft AG, The Govenor and Company of the Bank of Scotland, Caisse Nationale De Credit Agricole, Ceditanstalt-Bankverein, Credit Lyonnais, Dresdner Bank AG, Kredietbank NV, Skopbank, DG Bank Deutsche Genossenschaftsbank, The Gulf Bank KSC, Gentra Ltd (formerly Royal Trust Bank) and Banque Indosuez
Second Defendant by counterclaim
WA GLENDINNING & ASSOCIATES PTY LTD
First named Third Defendant by counterclaim
WU INVESTMENTS PTY LTD
Second named Third Defendant by counterclaim
EXPECTATION PTY LTD
Third named Third Defendant by counterclaim
COMMONWEALTH OF AUSTRALIA as representative of Commonwealth of Australia, Western Interstate Pty Ltd (provisional liquidator appointed), Bell Publishing Group Pty Ltd (in liq), TBGL Enterprises Ltd (in liq), Belcap Enterprises Pty Ltd (in liq), WAON Investments Pty Ltd (in liq), Wigmores Tractors Pty (in liq), Wanstead Pty Ltd (in liq), Bell Bros Pty Ltd (in liq), W & J Investments Ltd (in liq), Maradolf Ltd (in liq), West Australian Newspapers Ltd, Wesavel Pty Ltd (formerly Western International Travel Pty Ltd), RS Linfoot Investments Pty Ltd (t/as Linfoot Cleaning Service), Rendezvous Hotels Management Pty Ltd (t/as Radisson Observation City Hotel), Corrs Chambers Wesgarth, Bennett & Co, Robinson Cox, Ernst & Young Registry Services Pty Ltd (formerly Registry Managers (Australia) Pty Ltd), Honeywell Ltd, Opera Foundation Australia, Telstra, Bell Group NV (in liq), JN Taylor Holdings Ltd (in liq) and Bond Corporation Pty Ltd
Fourth Defendant by counterclaim
WESTPAC BANKING CORPORATION as representative of Westpac Banking Corporation, Coopers & Lybrand, Parker & Parker and Mellesons Stephen Jacques
Fifth Defendant by counterclaim

FILE NO/S: CIV 1464 of 2000
BETWEEN: THE BELL GROUP LTD (in liq)
First Plaintiff
THE BELL GROUP LTD (in liq) as trustee for each of Dolfinne Pty Ltd (in liq), Industrial Securities Pty Ltd (in liq), Maranoa Transport Pty Ltd (in liq), Neoma Investments Pty Ltd (in liq)
Second Plaintiff
BELL GROUP FINANCE PTY LTD (in liq) (receiver and manager appointed)
Third Plaintiff
BELL GROUP (UK) HOLDINGS LTD (in liq) (in administrative receivership)
Fourth Plaintiff
BELL PUBLISHING GROUP PTY LTD (in liq)
Fifth Plaintiff
BELL GROUP NV (in liq)
Sixth Plaintiff
AMBASSADOR NOMINEES PTY LTD (in liq)
BELCAP ENTERPRISES PTY LTD (in liq)
BELL BROS PTY LTD (in liq)
BELL EQUITY MANAGEMENT LTD (in liq)
DOLFINNE PTY LTD (in liq)
GREAT WESTERN TRANSPORT PTY LTD (in liq)
HARLESDEN FINANCE PTY LTD (in liq)
INDUSTRIAL SECURITIES PTY LTD (in liq)
MARADOLF LTD (in liq)
MARANOA TRANSPORT PTY LTD (in liq)
WANSTEAD PTY LTD (in liq)
WESTERN TRANSPORT PTY LTD (in liq)
WIGMORES TRACTORS PTY LTD (in liq)
W&J INVESTMENTS LTD (in liq)
DOLFINNE SECURITIES PTY LTD (in liq)
NEOMA INVESTMENTS PTY LTD (in liq)
TBGL ENTERPRISES LTD (in liq)
WANSTEAD SECURITIES PTY LTD (in liq)
WAON INVESTMENTS PTY LTD (in liq)
WESTERN INTERSTATE PTY LTD (provisional liquidator appointed)
Seventh Plaintiffs
GEOFFREY FRANK TOTTERDELL in his capacity as liquidator (with ALJ Woodings) of the First Plaintiff and of the first, second, third, fifth, ninth, tenth, eleventh, thirteenth, fourteenth, sixteenth, seventeenth and nineteenth-named Seventh Plaintiffs
Eight Plaintiff
ANTONY LESLIE JOHN WOODINGS in his capacity as sole liquidator of the Third Plaintiff and the Fifth Plaintiff and of the fourth, sixth, seventh, eighth, twelfth, fifteenth and eighteenth-named Seventh Plaintiffs, and as liquidator (with GF Totterdell) of the First Plaintiff and of the first, second, third, fifth, ninth, tenth, eleventh, thirteenth, fourteenth, sixteenth, seventeenth and nineteenth-named Seventh Plaintiffs
Ninth Plaintiff
GARRY JOHN TREVOR in his capacity as liquidator of the Sixth Plaintiff
Twelfth Plaintiff
THE LAW DEBENTURE TRUST CORPORATION plc as trustee of the BGNV Trusts as defined in the schedule to the writ of summons
Thirteenth Plaintiff
AND
WESTPAC BANKING CORPORATION
First Defendant
SG AUSTRALIA LTD
NATIONAL AUSTRALIA BANK LTD
HSBC BANK AUSTRALIA LTD
STANDARD CHARTERED BANK
COMMONWEALTH BANK OF AUSTRALIA
Second Defendants
LLOYDS TSB BANK plc
BANCO ESPIRITO SANTO SA
SEB AG
BANK OF SCOTLAND
CREDIT AGRICOLE SA
BANK AUSTRIA CREDITANSTALT AG
CREDIT LYONNAIS
COMMERZBANK AG
KBC BANK VERZEKERINGS HOLDINGS NV
SKOPBANK
DZ BANK AG DEUTSCHE ZENTRAL-GENOSSENSCHAFTSBANK
THE GULF BANK KSC
GENTRA LTD
CALYON
Third Defendants
EQUITY TRUST (CURACAO) NV
Fifth Defendant

Catchwords:

Practice and procedure - Undertakings - Application for undertakings to be discharged - Power of court to vary or discharge - Whether it is just for the undertakings to be discharged in all the circumstances

Practice and procedure - Intervenors - Application to intervene - Whether a non-party's legal rights and interests affected - Whether it is in the interests of justice to grant leave to intervene

Legislation:

Nil

Result:

ICWA's application for leave to intervene in CIV 1464 of 2000 granted
Undertakings discharged

Category: B

Representation:

CIV 2061 of 1996

Original Action

Counsel:

First Plaintiff	:	No appearance
Second Plaintiff	:	No appearance
Third Plaintiff	:	No appearance
Fourth Plaintiff	:	No appearance
Fifth Plaintiff	:	No appearance
Sixth Plaintiff	:	No appearance
Seventh Plaintiffs	:	No appearance
Eighth Plaintiffs	:	No appearance
Ninth Plaintiff	:	No appearance
First Defendant	:	No appearance
Second Defendant	:	Mr G K Rich SC and Mr A J Sefton
Third Defendant	:	Mr A D'Arcy
Fourth Defendant	:	No appearance
Bell Group Finance Pty Ltd (in liq) (former Fourth Defendant)	:	Mr J C Vaughan SC and Mr P A Walker
The Bell Group Ltd (in liq) (former Second Defendant)	:	Mr J C Vaughan SC and Mr P A Walker
Antony Leslie John Woodings (former Fifth Defendant)	:	Mr J C Vaughan SC and Mr P A Walker

Solicitors:

First Plaintiff	:	No appearance
Second Plaintiff	:	No appearance
Third Plaintiff	:	No appearance
Fourth Plaintiff	:	No appearance
Fifth Plaintiff	:	No appearance
Sixth Plaintiff	:	No appearance
Seventh Plaintiffs	:	No appearance
Eighth Plaintiffs	:	No appearance
Ninth Plaintiff	:	No appearance
First Defendant	:	No appearance
Second Defendant	:	State Solicitor's Office
Third Defendant	:	Lipman Karas
Fourth Defendant	:	No appearance
Bell Group Finance Pty Ltd (in liq) (former Fourth Defendant)	:	Ashurst Australia
The Bell Group Ltd (in liq) (former Second Defendant)	:	Ashurst Australia
Antony Leslie John Woodings (former Fifth Defendant)	:	Ashurst Australia

Counterclaim

Counsel:

First named Plaintiff by counterclaim	:	No appearance
Second named Plaintiff by counterclaim	:	Mr G K Rich SC & Mr A J Sefton
First Defendants by counterclaim	:	No appearance
Second Defendant by counterclaim	:	No appearance
First named Third Defendant by counterclaim	:	Mr S Penglis
Second named Third Defendant by counterclaim	:	No appearance
Third named Third Defendant by counterclaim	:	No appearance
Fourth Defendant by counterclaim	:	No appearance
Fifth Defendant by counterclaim	:	No appearance

Solicitors:

First named Plaintiff by counterclaim	:	No appearance
Second named Plaintiff by counterclaim	:	State Solicitor's Office
First Defendants by counterclaim	:	No appearance
Second Defendant by counterclaim	:	No appearance
First named Third Defendant by counterclaim	:	DLA Piper Australia
Second named Third Defendant by counterclaim	:	No appearance
Third named Third Defendant by counterclaim	:	No appearance
Fourth Defendant by counterclaim	:	No appearance
Fifth Defendant by counterclaim	:	No appearance

CIV 1464 of 2000

Counsel:

First Plaintiff	:	Mr J C Vaughan SC and Mr P A Walker
Second Plaintiff	:	No appearance
Third Plaintiff	:	Mr J C Vaughan SC and Mr P A Walker
Fourth Plaintiff	:	No appearance
Fifth Plaintiff	:	No appearance
Sixth Plaintiff	:	Mr A D'Arcy
Seventh Plaintiffs	:	No appearance
Eight Plaintiff	:	No appearance
Ninth Plaintiff	:	Mr J C Vaughan SC and Mr P A Walker
Twelfth Plaintiff	:	Mr A D'Arcy
Thirteenth Plaintiff	:	No appearance
First Defendant	:	No appearance
Second Defendants	:	No appearance
Third Defendants	:	No appearance
Fifth Defendant	:	No appearance
Insurance Commission of Western Australia (seeking leave to intervene)	:	Mr G K Rich SC and Mr A J Sefton

Solicitors:

First Plaintiff	:	Ashurst Australia
Second Plaintiff	:	No appearance
Third Plaintiff	:	Ashurst Australia
Fourth Plaintiff	:	No appearance
Fifth Plaintiff	:	No appearance
Sixth Plaintiff	:	Lipman Karas
Seventh Plaintiffs	:	No appearance
Eight Plaintiff	:	No appearance
Ninth Plaintiff	:	Ashurst Australia
Twelfth Plaintiff	:	Lipman Karas
Thirteenth Plaintiff	:	No appearance
First Defendant	:	No appearance
Second Defendants	:	No appearance
Third Defendants	:	No appearance
Fifth Defendant	:	No appearance
Insurance Commission of Western Australia (seeking leave to intervene)	:	State Solicitor's Office

Case(s) referred to in decision(s):

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170
APM Investments Pty Ltd v Trade Practices Commission (1983) 49 ALR 475
Bell Group Ltd (In Liq) v Westpac Banking Corporation (1996) 18 WAR 21
Bell Group Ltd v Westpac Banking Corporation (2000) 104 FCR 305
Birch v Birch [2017] 1 WLR 2959
Chanel Ltd v F W Woolworth & Co Ltd [1981] 1 WLR 485
Clone Pty Ltd v Players Pty Ltd (In Liq) (Receivers and Managers appointed) [2018] HCA 12
Commonwealth Bank of Australia and v The Law Debenture Trust Corporation plc (Unreported, WASC, Library No 980023, 27 January 1998)
Cook v Cook [1986] HCA 73; (1986) 162 CLR 376
Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391
Ellendale Pty Ltd v Graham Matthews Pty Ltd (1986) 11 FCR 347
Hutchinson v Nominal Defendant [1972] 1 NSWLR 443
Kensington Housing Trust v Oliver (1997) 30 HLR 608
Lashansky v Legal Practitioners Complaints Committee [2005] WASCA 217
Marello v Marello (No 2) [2011] FamCA 799
Mid Suffolk District Council v Clarke [2007] 1 WLR 980
MOTI v R [2011] HCA 50; (2011) 245 CLR 456
Philip Morris Inc v Adam P Brown Fashions Pty Ltd (1980) 44 FLR 88
Plaza BV v The Law Debenture Trust Corporation plc [2015] EWCH 43 (Ch)
Re Hudson [1966] 1 Ch 209
Roadshow Films Pty Ltd v Iinet Ltd [No 1] [2011] HCA 54; (2011) 248 CLR 37
Rushby v Roberts [1983] 1 NSWLR 350
Russell v Russell [1956] P 283
Shales v Lieschke (1985) 3 NSWLR 65
Smith v Commissioners of the Rural and Industries Bank of Western Australia [2009] WASC 100
The Bell Group Ltd (In Liq) v Westpac Banking Corporation (No 3) [2004] WASC 93
The Bell Group Ltd (In Liq) v Westpac Banking Corporation [2001] WASC 315
Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48; (1981) 148 CLR 150
Trust Co (Nominees) Ltd v Angas Securities Ltd (No 4) [2016] FCA 1240
VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 91; (2005) 141 FCR 291
Woods v Sheriff of Queensland (1895) QLJ 163

PRITCHARD J:

These reasons deal with two applications brought by The Bell Group Limited (in liquidation) (TBGL), Bell Group Finance Pty Ltd (in liquidation) (BGF) and Mr Woodings, in his capacity as the liquidator of TBGL and BGF (collectively, the Bell Parties) in CIV 1464 of 2000 (main Bell proceedings) and in CIV 2061 of 1996. Each of those applications (Applications) seeks the same relief, namely an order that each of the Bell Parties be released and discharged from undertakings given to this Court dated 7 October 2004 (Undertakings).
Before bringing the Applications, Mr Woodings sought, and was given, directions by this Court that he should take steps to cause the Bell Parties to apply for the discharge of the Undertakings.[1]
[1] Antony Leslie John Woodings as Liquidator of Bell Group (In Liq) and Bell Group Finance Pty Ltd (In Liq) [2017] WASC 322.
The Applications are supported by the Insurance Commission of Western Australia (ICWA), which is a party to CIV 2061 of 1996. ICWA also made an application to intervene in the Application made in the main Bell proceedings, to support that Application. ICWA advanced similar, but not identical, arguments for why the Bell Parties should be released from the Undertakings.
The Applications are opposed by Bell Group NV (in liquidation) (BGNV) and W.A. Glendinning & Associates Pty Ltd (WAG), both of which are parties in CIV 2061 of 1996, and by BGNV and Mr Trevor (the Australian liquidator of BGNV) (referred to collectively, herein, as BGNV), both of whom were parties in the main Bell proceedings.
None of the other parties in either CIV 2061 of 1996 or the main Bell proceedings sought to be heard in respect of the Applications, but a number of them made clear their position in respect of the Applications (which I outline below).
For the reasons which follow, ICWA should have leave to intervene in the Application made in the main Bell proceedings, the Applications will be granted, and there will be an order that the Bell Parties be released and discharged from the Undertakings.
In these reasons for decision, I deal with the following matters:
(a)Why ICWA's application to intervene in the Application made in the main Bell proceedings should be granted;
(b)The evidence and the facts relevant to the Applications;
(c)The principles to be applied in determining whether the Undertakings should be discharged; and
(d)Why the Applications should be granted.

(a) Why ICWA's application to intervene in the Application made in the main Bell proceedings should be granted

ICWA was not a party in the main Bell proceedings, but it is a party to the action in CIV 2061 of 1996. Accordingly, ICWA appeared on the Application in CIV 2061 of 1996 as of right, but applied for leave to intervene in the Application made in the main Bell proceedings so that its evidence and submissions might also be taken into account by the Court on that Application.
BGNV opposed ICWA's application for leave to intervene. In essence, its position was that the Court did not have jurisdiction to permit intervention by ICWA. Counsel for BGNV relied Corporate Affairs Commission v Bradley,[2] for the proposition that this Court has no inherent jurisdiction to permit intervention by a non-party in common law or equitable proceedings in its civil jurisdiction, and that there is no statutory basis for the Court to permit intervention by a non-party in this case either.
[2] Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391.
I am unable to accept the proposition that this Court does not have jurisdiction to permit intervention by a non-party in civil proceedings, for the following reasons.
First, Corporate Affairs Commission v Bradley should no longer be regarded as representing the present state of the law.[3]
[3] Cf Rushby v Roberts [1983] 1 NSWLR 350, 353 (Street CJ); Shales v Lieschke (1985) 3 NSWLR 65, 80 ‑ 82 (Kirby P).
Secondly, the jurisdiction of a Court to permit intervention by a non‑party in a civil proceeding was confirmed in Levy v State of Victoria.[4] The High Court permitted a number of non‑parties to intervene in that case. Brennan CJ explained the basis on which the Court had jurisdiction to permit intervention by non-parties. The jurisdiction did not, in that case, lie in any constitutional or statutory provisions, but rather existed as an incident of the Court's jurisdiction to determine those matters which fell within its constitutional and statutory jurisdiction. The jurisdiction fell to be exercised in accordance with the rules of natural justice, and consequently, a non-party whose legal interests would be affected directly by a decision of the Court must be entitled to intervene to protect that interest. However, intervention will not ordinarily be supported by an indirect or contingent affection of legal interests, such as by the future operation of principles enunciated in a decision of the Court.[5]
[4] Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579, 587.
[5] Roadshow Films Pty Ltd v Iinet Ltd [No 1] [2011] HCA 54; (2011) 248 CLR 37, 39 (French CJ, Gummow, Hayne, Crennan & Kiefel JJ).
Where a person having the necessary legal interest to apply for leave to intervene can show that the parties to the proceeding may not present fully the submissions on a particular issue, and where those submissions are ones that would assist the Court to reach a correct determination, the Court may grant leave to intervene. However, if the intervener's submission would merely be repetitive of the submissions of an existing party, efficiency will require that intervention be denied.[6] The Court has a discretion as to the limitations or conditions on which intervention will be permitted.
[6] Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579, 603-4 (Brennan CJ); Roadshow Films Pty Ltd v Iinet Ltd [No 1] (2011) 248 CLR 37, 38-39 (French CJ, Gummow, Hayne, Crennan & Kiefel JJ).
Thirdly, those principles have been applied in this Court. Intervention has been permitted by non-parties whose legal rights and interests will be directly or indirectly affected by the Court's decision in a case, where it is in the interests of justice to permit intervention.[7]
[7] Smith v Commissioners of the Rural and Industries Bank of Western Australia [2009] WASC 100, [41] ‑ [43] (Martin CJ).
There was an air of unreality about BGNV's opposition to ICWA's application to intervene in the Application in the main Bell proceedings, given that ICWA is a party, and thus was entitled to be heard, in the Application in CIV 2061 of 1996. In those circumstances, the other parties, and the Court, would in any event need to consider and respond to ICWA’s submissions in the course of the hearing of the Applications.

ICWA's application for intervention in the Application on the main Bell proceedings should be granted. The outcome of that Application clearly has the potential to affect ICWA's interests. The maintenance of the Undertakings prevent any future steps being taken which might have the effect of amending clauses of trust deeds (to which I refer below as the subordination and turnover trust provisions of the Trust Deeds).
Discretionary considerations support the exercise of the Court's discretion to permit ICWA's intervention in this case. This is not a case where ICWA's intervention would result in a repetition of the submissions of other parties, or where its intervention would unduly lengthen the proceedings. ICWA's submissions were not identical to those advanced by the Bell Parties. Denial of ICWA's application for intervention would require the parties and the Court to delineate between arguments advanced in one of the Applications but not the other. It is clearly in the interests of the efficient disposition of the issues raised in both Applications for ICWA to be heard in both Applications.

(b) The evidence and the facts relevant to the Applications

The evidence on which the parties relied

The parties tendered the following affidavit evidence in support of their contentions in relation to the Applications:
(i)Affidavit of Antony Leslie John Woodings sworn 1 December 2017 in CIV 2061 of 1996 (Exhibit 1);
(ii)Affidavit of Antony Leslie John Woodings sworn 25 January 2018 in CIV 2061 of 1996 (Exhibit 2);
(iii)Affidavit of Antony Leslie John Woodings sworn 16 March 2018 in CIV 2061 of 1996 (Exhibit 3);
(iv)Affidavit of Antony Leslie John Woodings sworn 1 December 2017 in CIV 1464 of 2000 (Exhibit 4);
(v)Affidavit of Antony Leslie John Woodings sworn 25 January 2018 in CIV 1464 of 2000 (Exhibit 5);
(vi)Affidavit of Antony Leslie John Woodings sworn 16 March 2018 in CIV 1464 of 2000 (Exhibit 6);
(vii)Affidavit of Adrian Chin Shien Chai sworn 25 January 2018 in CIV 1464 of 2000 (Exhibit 7);
(viii)Affidavit of Scott Bruce Foreman sworn 6 March 2018 in CIV 2061 of 1996 (Exhibit 8);
(ix)Affidavit of Scott Bruce Foreman sworn 3 April 2018 in CIV 2061 of 1996 (Exhibit 9);
(x)Affidavit of Scott Bruce Foreman sworn 6 March 2018 in CIV 1464 of 2000 (Exhibit 10);
(xi)Affidavit of David Jonathan Hargreaves sworn 19 February 2018 in CIV 2061 of 1996 (Exhibit 12);
(xii)Affidavit of David Jonathan Hargreaves sworn 30 April 2018 in CIV 2061 of 1996 (Exhibit 17).
A number of additional documents, which were said to be relevant to the Applications, were also tendered in evidence.
I made an order that the affidavits read by the parties would stand as the evidence in both Applications.[8]
[8] ts 221.
In support of its application for leave to intervene in the Application in the main Bell proceedings, ICWA also sought to rely on the affidavit of David Jonathan Hargreaves sworn 5 April 2018, and to the extent that that application was successful (as it has been), ICWA sought to read that affidavit on the Applications (Exhibit 13).

The core facts relevant to the determination of the Applications

Most of the core facts relevant to the determination of the Applications are not in dispute. They were largely set out in Mr Woodings' affidavits, in particular, his affidavit of 25 January 2018. The factual position below is drawn largely from Mr Woodings' affidavits, and supplemented by Mr Hargreaves' affidavits and Mr Foreman's affidavits, and from a number of decisions of this Court. Where there was a dispute between the parties in relation to any particular fact, I have referred to it and to its implications in the discussion below.

General overview of the litigation in which the Undertakings were given

TBGL, BGF and a number of other companies forming part of a group of which TBGL was the ultimate holding company (Bell Group companies) are all in liquidation.[9] Mr Geoffrey Totterdell was initially appointed the sole liquidator of TBGL and a number of other companies within the Bell Group companies. Mr Woodings was appointed as an additional liquidator, jointly with Mr Totterdell, in March 2000. Mr Totterdell ceased to be a liquidator of those companies in 2014, and since then, Mr Woodings has acted as the sole liquidator of those companies, as well as the sole liquidator of BGF.[10] (For ease of reference I will refer to the liquidators or liquidator of TBGL and BGF, whether individually or collectively, as the Liquidator or the Liquidators, as the context requires.)
[9] Exhibit 2 [8] and [10].
[10] Exhibit 2 [1] and [12].
The main Bell proceedings were commenced in the Federal Court of Australia, and subsequently transferred to this Court (main Bell Proceedings). In the main Bell Proceedings, TBGL, BGF, certain other Bell Group companies, the Liquidators, and a number of other parties, pursued various forms of relief against a number of Australian and foreign banks (Banks).[11] In September 2013, the main Bell proceedings, and some other related proceedings, were settled.[12] That settlement was completed in late June 2014.[13]
[11] Exhibit 2 [14].
[12] Exhibit 2 [15].
[13] Exhibit 2 [16].
Because of the financial position of the Bell Group companies, the Liquidators did not have funds to investigate or pursue the claims that were ultimately pursued in the main Bell proceedings. They invited the creditors of TBGL and BGF to indemnify them with respect to the cost of investigating, and if appropriate, pursuing, those claims.[14]
[14] Exhibit 2 [17] - [18].
A number of creditors - including the Commonwealth of Australia, the Law Debenture Trust Corporation plc (LDTC) (as the trustee of bonds issued by TBGL and by BGF which were (and are) held by the State Government Insurance Commission (now called ICWA)), BGNV and ICWA (collectively, the Indemnifying Creditors) – agreed to indemnify the liquidators of TBGL and BGF.[15] The funding provided to the liquidators of TBGL and BGF by the Indemnifying Creditors was provided pursuant to various agreements for indemnification (AFIs) between the Indemnifying Creditors and the Liquidators.[16]

The TBGL and BGF Bonds held by ICWA and the terms of the Trust Deeds under which they are held

[15] Exhibit 2 [19].

[16] Exhibit 2 [22].

The bonds issued by TBGL and BGF, which are held by ICWA (bonds), are held subject to the terms of two trust deeds, to which I will refer as the TBGL Trust Deed and the BGF Trust Deed (collectively the Trust Deeds). The Trust Deeds contain clauses which it is claimed give rise to subordination and turnover trust arrangements which operate in the event of the winding up of TBGL and BGF (subordination and turnover trust clauses).[17] The Trust Deeds also contain express powers of amendment, including at the request of the bondholder (ICWA).
[17] Exhibit 2 [21], Annexures ALJW-7 and ALJW-8.
The terms of the Trust Deeds, the potential amendment of those Trust Deeds, and the implications of any amendment, were relevant to the issues raised in the main Bell proceedings, to the issues raised in CIV 2061 of 1996, and to the funding arrangements for the main Bell proceedings. They remain relevant to the resolution of the Liquidator's application under s 564 of the Corporations Law (Cth) (as applied by either s 1408(1) or s 564 of the Corporations Act 2001 (Cth)) (herein s 564) in COR 146 of 2014 and in related proceedings in this Court in CIV 2666 of 2016, both of which are being case managed by me (collectively, the distribution proceedings).
By way of example, the construction and operation of the subordination and turnover trust clauses is one of the issues raised in the distribution proceedings. The argument there concerns whether the effect of the subordination and turnover trust clauses is to contractually subordinate the bondholder's (that is, ICWA's) claims against TBGL and BGF, in their windings up, to the claims of unsubordinated creditors (known as Senior Creditors) and oblige the LDTC, as the trustee of the bonds, to hold on trust (a turnover trust) any moneys paid to it in the windings up of TBGL or BGF, to be applied first to the LDTC's costs and expenses, and then to the claims of the Senior Creditors (to a particular amount), and only then for ICWA. The issue, more particularly, is whether the subordination and turnover trust clauses would operate in that way in respect of any amount which may be the subject of an order pursuant to s 564. Nothing in these reasons is intended to convey any view about the operation of the Trust Deeds.
The AFIs contemplated that the Liquidators would make an application to the Court for orders pursuant to s 564 in relation to how the Liquidators were to apply any monies recovered in the windings up of TBGL and BGF (Proceeds). Initially the AFIs provided that the obligation of the Indemnifying Creditors to indemnify the Liquidators was subject to a condition precedent, namely the making of an order under s 564 for the application of the Proceeds in a particular order of priority.[18] The terms of the AFIs were amended over time, so that ultimately the Liquidators became obliged to use their best endeavours to procure an order under s 564 for the application of the Proceeds in a particular order of priority.[19]

Claims concerning the bonds and attempts to amend the Trust Deeds

[18] Exhibit 2 [29], [33].

[19] Exhibit [31], [35].

As I have mentioned, the main Bell proceedings were commenced in the Federal Court in late 1995.[20] At least by the late 1990s, the pleadings contained references to the status of the TBGL and BGF bonds. One of the prayers for relief in the Banks' counterclaim sought to restrain TBGL from breaching the terms of banking arrangements by which it had allegedly agreed that it would not, and it would ensure that BGF would not, seek or consent to a variation of the subordinated status of the bonds.[21] It was alleged that the Banks believed or assumed that the liability of TBGL and BGF to bondholders was subordinated to other liabilities, and that that belief or assumption was induced by letters and memoranda provided by TBGL and BGF to the Banks in December 1985, which set out the terms on which the bonds would be offered. The Banks claimed that they conducted their banking relationship with TBGL and BGF on the basis of that belief or assumption as to the subordinated status of the bond liabilities, and that it would be unfair and unjust to permit the Bell Group companies from resiling from that state of affairs, and that they were estopped from denying that the bonds were not subordinated.[22]
[20] Exhibit 2, [38].
[21] The Bell Group Ltd (In Liq) v Westpac Banking Corporation (No 3) [2004] WASC 93 [36].
[22] The Bell Group Ltd (In Liq) v Westpac Banking Corporation (No 3) [2004] WASC 93 [37].
In April 1995, before the main Bell proceedings were commenced, the Liquidators applied to the Court for orders under s 564 in the windings up.[23] (That was done in an endeavour to satisfy the requirements of the condition precedent under the AFIs as they then stood.) In October 1996, the Liquidators' applications under s 564 were dismissed by Templeman J, who held that the Court had no jurisdiction to make an order under s 564 at that stage.[24]
[23] Exhibit 2 [36], [37].
[24] Bell Group Ltd (In Liq) v Westpac Banking Corporation (1996) 18 WAR 21.
In the meantime, and no doubt because of the potential implications of the subordination and turnover trust clauses, ICWA attempted to secure an amendment of the Trust Deeds, by requesting that the LDTC execute an amending deed pursuant to an express power of amendment in the Trust Deeds. In June 1995, the LDTC executed two supplemental deeds (SSDs) to provide that if an order were made by the Court under s 564, in the winding up of TBGL and of BGF, any amount paid pursuant to such an order would be paid to ICWA and not to other unsecured creditors.[25] (In other words, the intended effect of the SSDs was to avoid the possibility that any payment made pursuant to s 564 would be subject to the subordination and turnover trust clauses.)
[25] Exhibit 2, Annexures ALJW-21 and ALJW-22.
However, the SSDs also had to be executed by the Liquidators. In May 1996, the Liquidators applied to the Court for directions under s 479(3) of the Corporations Law that they would be acting properly and justifiably in executing the SSDs.[26]
[26] Exhibit 2, [39].
In October 1996, after the Banks became aware of the Liquidators' application for directions in relation to the SSDs, they commenced proceedings in this Court (CIV 2061 of 1996) against the LDTC, ICWA, TBGL, BGF and the Liquidators.[27] The relief sought by the Banks included declarations that entry into the SSDs would constitute a breach by TBGL of agreements entered into by it with the Banks in January 1990, breaches of trust by the LDTC and a fraud on the power of amendment under the Trust Deeds, declarations that TBGL and BGF were estopped from executing the SSDs and permanent injunctions preventing the LDTC and ICWA from giving effect to the SSDs, and preventing TBGL, BGF and the Liquidators from executing the SSDs.[28] In short, at least initially, the Banks' action in CIV 2061 of 1996 was directed to preventing the desubordination of the bonds to the claims of other creditors by the execution of the SSDs.
[27] Exhibit 2, [42], [43].
[28] Exhibit 2 [44]; Exhibit 8, Annexure SBF-33.
At the heart of the action in CIV 2061 of 1996 was the Banks' claim that before the bonds were issued, they received letters from TBGL and BGF setting out the intended terms of the bonds, including the intended subordination of the claims of the bondholders to the claims of other creditors in any winding up of TBGL and BGF. The Banks claimed that this gave rise to an agreement that the bonds would remain subordinated debts of TBGL and of BGF, with the result that the Banks would be able to regard the bonds as equity, rather than as debt, in assessing each company's liability ratio for the purpose of determining the extent of the finance they were prepared to extend to each company. The Banks claimed that they were induced by the conduct of TBGL and BGF to treat the bond liabilities as liabilities which would not rank pari passu with other liabilities of those companies to the banks. The Banks claimed that in the circumstances, it would be unconscionable for TBGL and BGF to be able to desubordinate the bonds by varying the Trust Deeds.[29] Those pleadings raised issues similar to those pleaded by the Banks in the main Bell proceedings.
[29] The Bell Group Ltd (In Liq) v Westpac Banking Corporation (No 3) [2004] WASC 93 [28] - [31], [37].
The defences filed by the defendants in CIV 2061 of 1996 alleged that the agreements the Banks claimed to have reached with TBGL and BGF were void or voidable and should be set aside. That was also one of the fundamental issues in the main Bell proceedings.
The LDTC and ICWA subsequently counterclaimed against the Banks in CIV 2061 of 1996. Amongst other things, ICWA and the LDTC sought directions pursuant to the Trustees Act 1962 (WA) approving the execution by the LDTC of the SSDs.[30]
[30] Exhibit 12, [10].
In 1997, Templeman J made orders joining some parties, including some of the Bell Group companies (other than TBGL, BGF or the Liquidators) as defendants to the counterclaim in CIV 2061 of 1996, and making representative orders.[31] BGNV agreed to be joined to the counterclaim by that representative order and indicated that it would abide the decision of the Court (as to whether the Trust Deeds could be amended by the SSDs) on the conditions that it would not have to take an active part in the proceedings, and that the LDTC and ICWA would not seek costs against it.[32] BGNV, and a number of other Bell Group companies were then joined as parties to the counterclaim and were the subject of an order that they be represented by the Commonwealth (the fourth defendant to the counterclaim) and the Commonwealth was excused from filing any defence or participating in the counterclaim.[33]
[31] Exhibit 2, [47]; Exhibit 12 [16], Annexure DJH-12.
[32] Exhibit 12 [14], Annexure DJH-10.
[33] Exhibit 2 [48]; Exhibit 12, Annexure DJH-12.
In January 1998, CIV 2061 of 1996 was stayed, pending the outcome of the main Bell proceedings.[34]
[34] Exhibit 2 [49]; Commonwealth Bank of Australia and v The Law Debenture Trust Corporation plc (Unreported, WASC, Library No 980023, 27 January 1998).
In 1999, the plaintiffs in the main Bell proceedings applied to transfer those proceedings to this Court, on the basis that it would be in the interests of justice for the proceedings to be heard in the same Court as related proceedings (including CIV 2061 of 1996).[35]
[35] Exhibit 2, [53].
The Banks resisted the transfer application. In February 2000, they applied to amend their defence and counterclaim, to add to their existing claims which were based on the subordinated status of the bonds, and thus to reflect the same issues as were raised in CIV 2061 of 1996.[36]
[36] Exhibit 2, [53].
At the same time, ICWA and the LDTC applied to lift the stay of CIV 2061 of 1996. They also sought to restrain the Banks from commencing any further actions in the Federal Court seeking any of the same relief as was sought in CIV 2061 of 1996, on the basis that those were matters on which they should be heard.[37]
[37] Exhibit 2, [54].
The main Bell proceedings were transferred to this Court on 7 April 2000.[38]
[38] Exhibit 2, [55]; Bell Group Ltd v Westpac Banking Corporation (2000) 104 FCR 305.
Justice Templeman subsequently lifted the stay in CIV 2061 of 1996, but dismissed the application by the LDTC and ICWA to restrain the Banks from amending their defence and counterclaim in the main Bell proceedings. However, his Honour indicated that ICWA and the LDTC should not be shut out of any application by the Banks to amend their defence and counterclaim.[39]
[39] Exhibit 2, [56].
In 2001, the plaintiffs in the main Bell proceedings were given leave to amend their statement of claim.[40]

The overlap between the issues in the main Bell proceedings and in CIV 2061 of 1996

[40] The Bell Group Ltd (In Liq) v Westpac Banking Corporation [2001] WASC 315.

It is apparent that from the matters set out above that there was an overlap between the issues raised in the main Bell proceedings and in CIV 2061 of 1996, in so far as they concerned the status of the bonds under the Trust Deeds and the amendment of the Trust Deeds to desubordinate the bonds (overlap issues). The question of how to manage the overlap issues remained unresolved until after the trial of the main Bell proceedings commenced. That was because Owen J initially took the view that it would be desirable to allow the issues raised in the main Bell proceedings to unfold, so that he could obtain a better understanding of the course the proceedings were likely to take, before determining how to resolve the overlap issues.[41]
[41] The Bell Group Ltd (In Liq) v Westpac Banking Corporation (No 3) [2004] WASC 93, [38] (Owen J).
In April 2004, Justice Owen delivered a decision on how to deal with the overlap issues (overlap judgment).[42] His Honour concluded that the overlap issues should be dealt with in the main Bell proceedings, because it was in the interests of justice to do so.[43] His Honour's stated objective was 'to resolve, in the [main Bell proceedings] as many critical and related aspects of the litigation as is possible given the overriding imperative to promote the interests of justice'.[44] His Honour reached that conclusion reluctantly, having regard to the fact that that course had the potential to extend the length of the trial of the main Bell proceedings, might result in wasting additional time and expense, depending on how some of the issues in dispute were resolved, and more importantly, because importing the overlap issues into the main Bell proceedings would have an
effect on entities that are not presently parties to the [main Bell proceedings] and who may be dragged into it. ICWA is one. The Commonwealth of Australia (through the Commissioner of Taxation) is another. LDTC is already a party, although expressly limited to its capacity as trustee of the BGNV bond issues. But in a practical sense its involvement will not be markedly different. The same can be said for BGNV. It will be necessary for the other entities to consider their position in relation to the [main Bell proceedings].[45]
[42] The Bell Group Ltd (In Liq) v Westpac Banking Corporation (No 3) [2004] WASC 93.
[43] The Bell Group Ltd (In Liq) v Westpac Banking Corporation (No 3) [2004] WASC 93 [135] - [136].
[44] The Bell Group Ltd (In Liq) v Westpac Banking Corporation (No 3) [2004] WASC 93 [140].
[45] The Bell Group Ltd (In Liq) v Westpac Banking Corporation (No 3) [2004] WASC 93 [145].

The way in which his Honour envisaged importing the overlap issues into the main Bell proceedings was
by removing the argument concerning the relevant plaintiffs' entitlement to enter into the [SSDs] from [CIV 2061 of 1996] to [the main Bell proceedings]. But it is not a wholesale importation of the issues surrounding the litigation funding arrangements with it. The extent to which that becomes necessary will largely be in the hands of the plaintiffs. It may mean that other parties, particularly ICWA, may wish to participate in the [main Bell proceedings]. That, too, is to be worked out.[46] (emphasis added)
[46] The Bell Group Ltd (In Liq) v Westpac Banking Corporation (No 3) [2004] WASC 93 [171].
His Honour emphasised that at that point in time, the ramifications of bringing the overlap issues into the main Bell proceedings remained to be resolved. Justice Owen anticipated taking all of the evidence in relation to the overlap issues in the main Bell proceedings and delivering a single composite judgment which would deal with the overlap issues, as well as all of the other issues raised in the main Bell proceeding.[47] However, his Honour made clear that he may revisit that course as the trial proceeded.

The agreement as to how to resolve the overlap issues

[47] The Bell Group Ltd (In Liq) v Westpac Banking Corporation (No 3) [2004] WASC 93 [142].

After Owen J delivered judgment on the overlap issues, the plaintiffs in the main Bell proceedings had to consider how to deal with the implications of that judgment. Mr Woodings spoke with his solicitors on 12 May 2004, and they wrote to ICWA's solicitors later that day. They noted that[48]
the thrust of the overlap judgment is to place an onus on the plaintiffs to decide to what extent funding issues will ultimately into the [main Bell proceedings].
In light of this development, Mr Woodings has asked us to invite ICWA and LDTC to reconsider their attitude to the [SSDs]. There would be a number of advantages to the case, if these deeds were no longer required, and if the indemnifying creditors would permit the liquidators of TBGL and BGF to undertake not to sign such deeds.
The main advantage would be to simplify the conduct of the matter by removing issues to do with the funding of the litigation, which in no way advance the plaintiffs' case.
[48] Exhibit 2, Annexure ALJW-27.
Mr Woodings' solicitors proposed that this course would simplify the matter, and costs, including by reducing the possibility that the parties in CIV 2061 of 1996 would need to become involved in the main Bell proceedings.[49]
[49] Exhibit 2, Annexure ALJW-27.
ICWA's solicitors wrote to BGNV's liquidator, Mr Trevor, on 18 May 2004. They advised that ICWA was prepared to accede to Mr Woodings' proposal, provided that BGNV also agreed with that course, and that BGNV remained committed to working with other Indemnifying Creditors (ICWA and the Australian Taxation Office) in respect of the s 564 application to maximise the payment made to the Indemnifying Creditors pursuant to s 564.[50] BGNV agreed to that proposal.[51]
[50] Exhibit 12, Annexure DJH-26.
[51] Exhibit 12, Annexure DJH-26.
ICWA's solicitors also wrote to the Commissioner of Taxation in similar terms. The Commissioner agreed with the proposal set out in that letter.[52]
[52] Exhibit 12, Annexure DJH-27.
ICWA's solicitors responded by letter of 19 May 2004, in which they advised:[53]
In the light of the overlap reasons, our clients have determined that they no longer wish to pursue the execution of the [SSDs].
Our clients have no objection to the [Liquidators] giving an undertaking to the Court to the effect that they will no cause TBGL and BGF to consent, and TBGL and BGF will not consent, to any amendments to the Trust Deeds.
[53] Exhibit 2, Annexure ALJW-28.
ICWA's solicitors wrote to the Banks' solicitors on the same day, and advised that ICWA no longer sought the consent of TBGL and BGF to the SSDs or any other agreements to amend the Trust Deeds that governed the bonds issued by TBGL and BGF.[54] The parties' solicitors then engaged in negotiations in relation to whether undertakings would be provided by TBGL, BGF and the Liquidators, in the main Bell proceedings and in CIV 2061 of 1996, and the terms thereof, 'to effectively dispose of the overlap issues'.[55]
[54] Exhibit 2 [68], Annexure ALJW-29.
[55] Exhibit 2 [70], Annexure ALJW-31.
By letter dated 29 July 2004, the Liquidators' solicitors wrote to ICWA's solicitors seeking confirmation that ICWA and the LDTC would agree to a course of action which Mr Woodings had been negotiating with the Banks' solicitors, in order dispose of the overlap issues in the main Bell proceedings and in CIV 2061 of 1996.[56] By letter dated 5 August 2004, the solicitors for ICWA and the LDTC confirmed that their clients agreed to that course of action.[57]
[56] Exhibit 2, Annexure ALJW-31.
[57] Exhibit 2, Annexure ALJW-32.
By October 2004, the Bell Parties, the Banks, and ICWA and the LDTC, had reached agreement that each of the Bell Parties, as well as the LDTC, would give undertakings to the Court in both the main Bell proceedings and in CIV 2061 of 1996, and that the Banks would seek leave, by consent, to discontinue their action against TBGL, BGF and the Liquidators in CIV 2061 of 1996.[58] I will refer to this as the overlap resolution agreement.
[58] Exhibit 2 [73].
That overlap resolution agreement had other terms, and at least some of those terms can be discerned from several other documents which were in evidence. In the course of the hearing on 7 October 2004, counsel for the Banks, for the plaintiffs in the main Bell proceedings, and for ICWA and the LDTC, referred to aspects of the overlap resolution agreement.[59] In addition, in both the main Bell proceedings, the plaintiffs and the Banks agreed to the making of orders by the Court to reflect the overlap resolution agreement, and those orders were made on 7 October 2004.[60] Finally, the Banks, the Bell Parties, and ICWA and the LDTC also agreed to the making of orders in CIV 2061 of 1996 to reflect the overlap resolution agreement, and those orders were made on 7 October 2004.[61]
[59] Exhibit 2, Annexure ALJW-37.
[60] Exhibit 2, Annexure ALJW-35.
[61] Exhibit 2, Annexure ALJW-37 (ts 15681).
The overlap resolution agreement comprised at least the following components:
1.ICWA and the LDTC would not require the Bell Parties to execute the SSDs;
2.The Bell Parties would give undertakings to the Court that they would not enter into the SSDs or any other instrument with a similar effect, and would not consent to amend or modify the Trust Deeds without giving the Banks notice of their intention to do so;
3.The LDTC would provide an undertaking to the Court in CIV 2061 of 1996 in not materially different terms to the Undertakings provided by the Bell Parties;
4.The Banks would no longer press certain allegations (concerning the overlap issues) in their defence and counterclaim in the main Bell proceedings and would have leave to amend their pleading accordingly;
5.The plaintiffs would amend their reply and defence to the Banks' counterclaim in the main Bell proceedings to respond to the Banks' amendments concerning the overlap issues;
6.The Banks would discontinue CIV 2061 of 1996 as against the Bell Parties, and would amend their statement of claim in CIV 2061 of 1996 in so far as it concerned the amendment of the Trust Deeds;
7.The LDTC and ICWA would have leave to amend their defence and counterclaim in CIV 2061 of 1996 to remove their claims relating to the amendment of the Trust Deeds;
8.The Liquidators would be released from their obligations to ICWA (under certain deeds of indemnity concerning the funding of the main Bell proceedings) to execute the SSDs, and to apply for directions from the Court that it was proper to execute the SSDs, and ICWA and the LDTC would indemnify the Liquidators in respect of any liability for costs arising from the discontinuation of their application to the Court for such directions; and
9.ICWA and the LDTC would indemnify the Bell Parties in relation to costs orders made against them in the main Bell proceedings or CIV 2061 of 1996 arising from the Undertakings, the amendments to the pleadings in each action which would follow, the discontinuation of CIV 2061 of 1996 against the Bell Parties, and the overlap judgment.
It is appropriate to mention at this stage that in these Applications there was a dispute between the parties as to whether the overlap resolution agreement reached was between all of the plaintiffs in the main Bell proceedings (including the Bell Parties, BGNV and Bell Group (UK) Holdings Limited (in liquidation) (BGUK)), ICWA and the LDTC, and the Banks, or whether that agreement reached was only between the Bell Parties, ICWA and the LDTC, and the Banks. There was little evidence as to the extent of participation, in negotiations, of any of the plaintiffs in the main Bell proceedings other than the Bell Parties (who had given the Undertakings). On the other hand, the copy of the extracted orders made by the Court on 7 October 2004 in the main Bell proceedings, indicates that counsel appeared on behalf of all of the plaintiffs in that action, and not just TBGL and BGF. I do not consider it necessary to resolve the dispute concerning the identity of the parties to the overlap resolution agreement. The evidence was inadequate for that purpose, and it is not necessary to resolve the dispute in order to resolve the Applications. In my view, the more significant and indisputable fact is that at the heart of the overlap resolution agreement was an agreement between the Banks, on the one hand, and the Bell Parties, the LTDC, and ICWA, on the other hand. The Banks agreed to discontinue their claims concerning desubordination of the bonds, provided that the Bell Parties and the LDTC gave the Undertakings. In return for the Undertakings, the Bell Parties and the LDTC ensured that the overlap issues were excised from the main Bell proceedings and from CIV 2061 of 1996.

The Undertakings

The Undertakings were given by or on behalf of the Bell Parties in each of CIV 2061 of 1996 and the main Bell proceedings on 7 October 2004.[62] As both Mr Totterdell and Mr Woodings were, at that stage, the liquidators of TBGL and some of the other Bell Group companies which were parties to the litigation, each of them gave the Undertakings in that capacity. The LDTC also gave an undertaking in similar terms in CIV 2061 of 1996.[63]
[62] Exhibit 1, Annexure ALJW-1; Exhibit 4, Annexure ALJW-1.
[63] Exhibit 2 [73], Annexure ALJW-37.
At the hearing on 7 October 2004, the Court made orders, having noted that the Undertakings had been given.[64] Counsel for the Banks explained that those orders disposed of most of the Banks' action in CIV 2061 of 1996, subject to the resolution of one final matter, and if that matter were resolved, all that would remain would be the LDTC's counterclaim, in which it sought relief including a declaration that any payment under s 564 would not be subject to the Trust Deeds.[65]
[64] Exhibit 2, Annexure ALJW-37.
[65] Exhibit 2, Annexure ALJW-37.
The Undertakings were in relevantly identical terms,[66] namely:
[66] Exhibit 1, Annexure ALJW-1; Exhibit 4, Annexure ALJW-1.
1. [The Bell Parties] undertake to this Honourable Court that they:
1.1will not enter into or execute the [SSDs] or any other instrument which has the purpose or effect of amending the provisions of the TBGL Subordinated Bonds Trust Deed, the Conditions of the TBGL Subordinated Bonds, the BGF Subordinated Bonds Trust Deed and/or the Conditions of the BGF Subordinated Bonds (as those terms are defined in the fifth statement of claim in CIV 2061 of 1996 (together and separately the 'Deed') which concern:
1.1.1the subordination of obligations in respect of the bonds, conversion bonds and/or guarantee which are the subject of the Deed;
1.1.2the receipt and payment of moneys by the Trustee Bondholders and/or Issuer (as those terms are defined respectively in the Deed);
1.1.3the substitution of the Issuer (as defined in the Deed) or the appointment of a new trustee.
1.2will not in any other way consent to an amendment or modification to the Deed without first giving the plaintiffs at least 7 days notice of their intention to do so;
1.3will not appoint, nor seek the appointment of, a new trustee to the trusts constituted by the Deed unless any such new trustee first gives undertakings to this Honourable Court in the same terms as those given by the Law Debenture Trust Corporation plc in CIV 2061 of 1996 on 7 October 2004.
1.4will not substitute, nor seek the substitution of, another entity for the Issuer and/or Guarantor (as those terms are defined respectively in the Deed) unless any such substituted entity first gives undertakings to this Honourable Court in the same terms as those herein given.
2.These undertakings are given on the basis that:
2.1There be liberty to apply to be released or to vary the undertakings if any amendment sought to be made to the Deed does not in any way adversely affect the rights, interests or position of Senior Creditors of [TBGL or BGF].
2.2The plaintiffs have agreed that they will not unreasonably withhold their consent to any application to be released or to vary the undertakings in the circumstances set out in 2.1 above.
CIV 2061 of 1996 was subsequently stayed, pending the final resolution of the main Bell proceedings.[67]
[67] Exhibit 2 [78].
Mr Woodings deposed that until mid-2013, when there was discussion about a settlement of the main Bell proceedings, there was no discussion or communication between the Bell Parties, on the one hand, and ICWA and the LDTC on the other hand, about the release or discharge of the Undertakings, or reviving, agreeing or giving effect to the SSDs, or agreeing or giving effect to any other amendments to the Trust Deeds.[68]

Evidence as to the position of the Banks in relation to the discharge of the Undertakings

[68] Exhibit 2 [79].

As I have mentioned, in September 2013, the parties to the main Bell proceedings reached an agreement to settle those proceedings. The terms of that settlement are confidential. For present purposes, it suffices to note that in the main Bell proceedings, it was agreed that each of the Banks, and the Bell Parties, would 'take any and all steps reasonably necessary to facilitate the release of the [Undertakings] given in [the main Bell proceedings], including consenting to orders to that effect'.[69] In CIV 2061 of 1996, the Banks, the LDTC (as the trustee under the Trust Deeds), ICWA, and the Bell Parties agreed 'to promptly take any and all steps reasonably necessary to facilitate the release of the [Undertakings] given in CIV 2061 of 1996'.[70] BGNV did not agree to that course.[71]
[69] Exhibit 2 [88(b)]; see also Exhibit 14 cl 6(h).
[70] Exhibit 2 [88(f)].
[71] Exhibit 2 [88(f)].
In the second half of 2014, the Banks gave their consent to proposed orders releasing the Liquidators from the Undertakings.[72]
[72] Exhibit 2 [90].
The Banks' position in respect of the Applications is that they consent to the release of the Undertakings given by the Liquidators in the main Bell proceedings and in CIV 2061 of 1996, they consented to any application by the Liquidators to be released from the Undertakings, and they did not seek to be heard on the Applications.[73]

Evidence as to the attitude of BGNV and of other creditors to the discharge of the Undertakings

[73] Exhibit 7, Annexure AC-1.

As I have already noted, BGNV did not agree to that part of the settlement of the main Bell proceedings by which the Banks and the other parties agreed to facilitate the discharge of the Undertakings.
BGNV objected to orders being made to release or discharge the Liquidators from the Undertakings. In addition, BGNV 'contended that [the Liquidator] was in a conflict of interest in seeking [orders to discharge the Undertakings] as BGNV contend[ed] it is not in the interests of the 'senior creditors' of the Bell Group companies to release the [Undertakings].'[74]
[74] Exhibit 2 [91(b)].
In June 2014, BGNV's liquidator, Mr Trevor, sought and obtained a direction from the Court that he would be justified in opposing any step to release or vary the Undertakings, or to amend the Trust Deeds.[75]
[75] Exhibit 12, DJH-35.
BGNV appeared by counsel at the hearing of the Applications and opposed the Applications.
WAG, which is a creditor of BGF, also opposed the discharge of the Undertakings. It was represented by counsel at the hearing of the Applications and advanced submissions in opposition to the Applications.
The Liquidator deposed that other than ICWA, which supported the Applications, he is 'not aware of any creditor of TBGL or BGF that has consented to the release of the [Undertakings].'[76] However, the Liquidator is aware that BGUK, which is a 'putative creditor of BGF, neither consents to nor opposes the release of the [Undertakings] given in [the main Bell proceedings]'.[77]

Evidence said to be relevant to the utility of the Applications – the intended approach of the Liquidators and the LDTC in relation to the amendment of the Trust Deeds if the Undertakings are discharged

[76] Exhibit 3 [27].

[77] Exhibit 3 [28]; see also Exhibit 7, Annexure AC-3.

The evidence established that there is no present proposal to amend the Trust Deeds, but if one were ever proposed, the LDTC and the Liquidators would seek a direction from the Court.
In 2014, Plaza BV, which holds bonds issued by BGNV, and for which TBGL is a guarantor, and is a beneficiary under the trust deed governing those bonds, brought proceedings in the High Court of Justice in the United Kingdom against the LDTC, seeking to restrain the LDTC from executing the SSDs or deeds to similar effect. The LDTC applied to stay that action, and in October 2014, Plaza BV's action was stayed by the High Court of Justice.[78] In the course of submissions in relation to that application, the LDTC's counsel told the Court that ICWA had not requested that the LDTC execute a deed which was similar in effect to the SSDs, and assured the Court that if such a request were to be made, then there was no prospect that the LDTC would simply execute such a deed. Rather, in light of the assertion which had been made by Plaza BV that the LDTC was in a position of a conflict of interest, counsel for the LDTC informed the Court that the LDTC would seek the directions of the Court were it to be asked to execute such an instrument.[79]
[78] Exhibit 2, Annexure ALJW-41; Plaza BV v The Law Debenture Trust Corporation plc [2015] EWCH 43 (Ch).
[79] Exhibit 2, Annexure ALJW-40.
The evidence before the Court on the Applications was to the effect that:
(i)TBGL and BGF have not been asked to amend the Trust Deeds;
(ii)if TBGL and BGF were asked to do so, Mr Woodings would seek directions from the Court;
(iii)the LDTC has not requested TBGL or BGF to amend the Trust Deeds; and
(iv)as far as Mr Woodings is aware, the LDTC has not taken any step to seek a release of the undertaking it gave in CIV 2061 of 1996.[80]
[80] Exhibit 2, [106].
For some time prior to the hearing of the Applications, ICWA's position was that it may (but not necessarily would) seek to secure the amendment of the Trust Deeds at some stage in the future. On the final day of the hearing of the Applications, however, ICWA tendered a copy of correspondence it had sent to the other parties to the Applications, clarifying its position as to whether it proposed to seek an amendment of the Trust Deeds, if the Undertakings were discharged, and how it intended to go about achieving that amendment.[81] In that correspondence, ICWA advised that it 'does not propose amendment to the Trust Deeds, including any amendment to the effect set out in the [SSDs].'[82] Accordingly, ICWA's unambiguous position is now that it no longer intends to pursue the amendment of the Trust Deeds.

Other evidence - what was known to ICWA when the Undertakings were given in 2004

[81] Exhibit 17, Annexure DJH-38.

[82] Exhibit 17, Annexure DJH-38.

Counsel for BGNV sought to rely on a number of documents tendered in evidence which he submitted illustrated that when ICWA decided that it would not pursue the amendment of the Trust Deeds through the SSDs, agreed to withdraw its request for the Bell Parties to consent to those amendments, and subsequently agreed to the provision of the Undertakings, it did so in the knowledge of the impact that those decisions may have on any payment it might receive pursuant to s 564, by virtue of the operation of the subordination and turnover trust clauses in the Trust Deeds.
The documents on which BGNV relied left no doubt that, when the Undertakings were given, ICWA appreciated that there was a risk that any decision by it not to pursue the amendment of the Trust Deeds might impact on any payment ICWA might receive pursuant to s 564.[83]

Other evidence

[83] See Exhibit 18 (email and facsimile of 18 May 2004).

ICWA and BGNV both sought to establish other facts which they claimed were relevant to the Applications. ICWA, for example, adduced evidence and advanced submissions concerning the funding arrangements between the Indemnifying Creditors and the role of the SSDs in those arrangements. Counsel for BGNV also submitted that it was necessary to understand the 'funding arrangements for the Bell litigation, including the mechanism adopted by the [Indemnifying Creditors], to distribute the proceeds of that litigation amongst themselves via an order made under s 564',[84] and 'the 'problem' that these funding arrangements caused the LDTC and ICWA, given the concern that the proceeds of any s 564 order paid to the LDTC (or ICWA) would be caught by the turnover trust provisions of the [Trust Deeds].'[85] BGNV tendered additional material directed to these issues.
[84] BGNV submissions [72.2].
[85] BGNV submissions [72.3].
I have not referred to all of the additional evidence tendered by ICWA and BGNV. Although it was admitted without any objection, I do not regard all of that material as relevant to the exercise of the discretion whether to discharge the Undertakings, and some of it, or its implications, appears to be contentious. Some of it touches upon issues which will arise for determination in the distribution proceedings. In those circumstances, the exercise of discretion in which the Court is engaged on this occasion would not be advanced by endeavouring to make factual findings about contentious, and irrelevant, matters.

(c) The principles to be applied in determining whether the Undertakings should be discharged

The nature of an undertaking and the Court's power to discharge an undertaking

An undertaking is given to a court, and may be accepted in lieu of the grant of injunctive relief against the party giving the undertaking.[86] Because the undertaking is a promise to the court, it does not confer any personal right or remedy on any other party.[87] An undertaking has the same effect as an injunction, and non-compliance with an undertaking may be enforced by proceedings for contempt.[88]
[86] Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48; (1981) 148 CLR 150, 164 - 165.
[87] Re Hudson [1966] 1 Ch 209, 213 (Buckley LJ).
[88] Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48; (1981) 148 CLR 150, 164 - 165.
There is no doubt that this Court has the power, as part of its jurisdiction to control its own orders, to release a person from an undertaking.[89] That power exists both in respect of undertakings given and received in lieu of the grant of interlocutory relief, and in respect of undertakings given and received in lieu of the grant of final relief.[90]
[89] Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170, 178 (Gibbs CJ, Aickin, Wilson & Brennan JJ).
[90] Woods v Sheriff of Queensland (1895) QLJ 163, 165 (Griffith CJ).
The Court's power to release a party from an undertaking is discretionary. The onus is on the party who seeks to be released from the undertaking to persuade the Court, in the exercise of its discretion, that the undertaking should be discharged (or varied).[91]

The principles applicable to the discharge of an undertaking

[91] APM Investments Pty Ltd v Trade Practices Commission (1983) 49 ALR 475, 510 (Fitzgerald J); Marello v Marello (No 2) [2011] FamCA 799, [26] (Kent J).

There was considerable dispute between the parties as to the principles which are to be applied in determining whether a court should release or discharge a party from its undertaking. Counsel took rather different views of how the leading Australian authorities should be understood, and they sought to draw support for their contentions as to the applicable principles from authorities in the United Kingdom.
Counsel for the Bell Parties and for ICWA submitted that the Court has jurisdiction to discharge a party from an undertaking, whether interlocutory or final in nature, where it is in the interests of justice to do so.[92]
[92] Bell Parties' submissions [16] - [17]; ICWA submissions [37].
Counsel for BGNV did not dispute that the Court has power to release a party from an interlocutory undertaking, but submitted that that in order to do so, an applicant must ordinarily establish a ground for the exercise of the discretion - effectively a significant change in circumstance - and demonstrate that that ground renders continued enforcement of the undertaking unjust.[93] Counsel for BGNV also submitted:
Thus, it is not sufficient for the applicant just to establish a significant change in circumstances. The applicant must also demonstrate that those changed circumstances make continued adherence to the undertaking unjust. In other words, the applicant must establish a causal connection between the changed circumstances and the unjustness of continuing to enforce the undertaking.[94]
[93] BGNV submissions [8.3].
[94] BGNV submissions [9].
Finally, counsel for BGNV submitted[95] that
if circumstances have not changed significantly since the undertaking was given, so that the giver of the undertaking can still comply with the undertaking and not be exposed to contempt proceedings, there is nothing unjust about continuing to hold that person to their undertaking.
[95] BGNV submissions [45].
Counsel for BGNV also submitted that the test for discharging a final undertaking was no less stringent than that applicable to the discharge of an interlocutory undertaking, and that there are good reasons why the test should be even more stringent in its application to a final undertaking.[96] Later in his submissions, counsel went further than that. He submitted that the strict approach to the finality principle 'means that a final undertaking will only be released in exceptional circumstances where it is no longer possible for the giver of the undertaking to comply with the undertaking.'[97]
[96] BGNV submissions [11].
[97] BGNV submissions [49].
In my view, the Court's discretion to discharge an undertaking is not so narrowly confined as counsel for BGNV sought to suggest.
In order to explain that conclusion, in the reasons which follow, I begin by considering the two leading Australian authorities on the principles pertaining to the discharge of an undertaking. Given the dispute about those principles, and in deference to the extensive argument on this issue, it is necessary to examine the authorities in some detail. I then consider the relevance of the English authorities to which counsel referred, before endeavouring to summarise the applicable principles which emerge from the authorities.

Australian authorities

The leading authority on the principles which apply to the discharge of an undertaking is the decision of the High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris.[98] Adam P Brown had been sued for alleged breaches of the Trade Practices Act 1975 (Cth) and for passing off, arising from its use of designs which were said to constitute the unauthorised use of trade marks. Philip Morris held the trade marks, and applied for an interlocutory injunction to restrain the use of the designs pending trial. In the course of the hearing, Adam P Brown offered to undertake not to engage in any use of the marks, pending the determination of the action. Philip Morris agreed to accept that undertaking and itself gave the usual undertaking as to damages. In view of those undertakings, Keely J made an order adjourning the application for an interlocutory injunction, with liberty to apply.
[98] Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170.
In the course of preparing for trial, Adam P Brown wished to obtain evidence as to the state of mind of the public relating to the use of the designs, and it wished to do so by obtaining a market survey undertaken by a professional polling organisation. Its advisers realised, however, that to conduct the survey would require the use of the designs it had earlier used, and that that would be contrary to the undertaking which had been given. The company therefore applied to be released from its undertaking, subject to it giving another undertaking in terms which would permit it to offer various items for sale under the disputed name and design, for the purpose of conducting the market or public opinion survey. In support of its application to vary the undertaking, Adam P Brown adduced evidence of the recommendation of a market research company, and counsel's advice.
Justice Smithers heard the application and permitted Adam P Brown to vary its undertaking. His Honour's decision was appealed to the Full Court of the Federal Court. The appeal was upheld by a majority of the Court (Fisher J dissenting).[99] Adam P Brown appealed that decision to the High Court.
[99] Philip Morris Inc v Adam P Brown Fashions Pty Ltd (1980) 44 FLR 88.
The High Court upheld the appeal. The plurality concluded that when an interlocutory order was made based on an undertaking, 'a further order will be appropriate whenever, inter alia, new facts come into existence or are discovered which render its enforcement unjust'.[100] It is necessary to pause to consider precisely what the plurality meant by that statement of principle. Their Honours clearly intended to convey that the discretion to make a further order - and thus, implicitly, to release the party from the undertaking it earlier gave – will be enlivened whenever new facts come into existence or are discovered which would render the enforcement of the earlier order unjust (which necessarily would involve holding the party to the undertaken it has given). However, in my view, it is apparent (from their reference to that situation being one 'inter alia') that the plurality was not seeking to suggest that a court's power to discharge an undertaking was confined to cases in which new facts came into existence or were discovered, or that that was the only factor which would be relevant to the question whether an undertaking should be discharged.
[100] Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170, 178 (Gibbs CJ, Aickin, Wilson & Brennan JJ).
When the plurality observed that 'a further order will be appropriate whenever, inter alia, new facts come into existence or are discovered which render its enforcement unjust', they cited a number of decisions in support of that statement of principle: Woods v Sheriff of Queensland, Hutchinson v Nominal Defence, and Chanel Ltd v F W Woolworth & Co.[101] Those cases confirm that the test to be applied in determining if a party should be released from an undertaking is whether it would be 'unjust' for the undertaking to continue in force. While each of the cases to which the plurality referred involved consideration of whether there was some new or changed circumstance which warranted the discharge of the undertaking, nothing in those decisions suggests that that is the only factor relevant to the existence or exercise of the discretion to discharge an undertaking.
[101] Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170, 178 (Gibbs CJ, Aickin, Wilson & Brennan JJ).
In Woods,[102] Griffith CJ (as his Honour then was) discussed the general rule that a court may not reverse or vary its own judgment or order, whether that judgment or order is final or interlocutory.[103] His Honour observed that that general principle did not mean that a judgment or order should not in all circumstances be executed. His Honour observed:[104]
Thus … full power is retained to relieve a party from the effect of a judgment which, though just when pronounced, ought not to be carried into execution. The same principle that allows relief to be given against the continued operation of a final judgment obviously extends to giving relief against the continued operation of an interlocutory order, if after it is made new facts come into existence or are discovered which render its enforcement unjust. (emphasis added)
[102] Woods v Sheriff of Queensland (1895) QLJ 163, 165.
[103] Woods v Sheriff of Queensland (1895) QLJ 163, 165 (Griffith CJ).
[104] Woods v Sheriff of Queensland (1895) QLJ 163, 165 (Griffith CJ).
In Hutchinson v Nominal Defendant,[105] Isaacs J dealt with an application to lift a stay of proceedings which had been granted until the costs of another, earlier, action (which had been commenced without compliance with a requirement to notify the nominal defendant) were paid, or security given for their payment. A preliminary question raised before Isaacs J was whether he had power to vary, discharge or suspend an earlier order made by another judge, by virtue of a change of circumstances (which was the basis relied upon in that case). Justice Isaacs held[106] that
a judge has power to vary, discharge or suspend any order made by any other judge where, for example, the order was conditional and the conditions have been fulfilled, necessitating some formal order, or circumstances arise which warrant in the judge's view a cessation of the continuance of the order as earlier made. Such power is an inherent power of the court or judge and any such variation, discharge or suspension is not in any sense an appeal from the order made by an earlier judge, because it does not proceed upon any supposed error in the initial making of the order. It predicates the validity of such an order and deals solely with the question as to whether there is established such change of circumstances that it is just and proper that the further continuance of the order should be varied, suspended or discharged. (emphasis added)
[105] Hutchinson v Nominal Defendant [1972] 1 NSWLR 443.
[106] Hutchinson v Nominal Defendant [1972] 1 NSWLR 443, 447 - 448 (Isaacs J).
Finally, Chanel Ltd v Woolworth[107] dealt with an application for leave to appeal against a decision by a judge to refuse to discharge or modify undertakings given by the defendants to an action 'until judgment or further order'. The defendants argued that there had been a change in circumstances which warranted the discharge of the undertakings given. Buckley LJ, with whom Shaw LJ and Oliver LJ agreed, held that:[108]
an order or an undertaking to the court expressed to be until further order by implication gives a right to the party bound by the order or undertaking to apply to the court to have the order or undertaking discharged or modified if good grounds for doing so are shown. Such an application is not an application to set aside or modify any contract implicit in the order or undertaking. It is an application in accordance with such contract, being an exercise of a right reserved by the contract to the party bound by the terms of the order or undertaking. (emphasis added)
[107] Chanel Ltd v F W Woolworth & Co Ltd [1981] 1 WLR 485.
[108] Chanel Ltd v F W Woolworth & Co Ltd [1981] 1 WLR 485, 492.
Buckley LJ went on to consider the circumstances which would warrant the discharge of an undertaking. His Lordship held that the defendants' application should be refused because they were seeking a rehearing on the basis of evidence which they could have entirely, or largely, adduced on the earlier occasion. His Lordship observed that
even in interlocutory matters a party cannot fight over again a battle which has already been fought unless there has been some significant change of circumstances, or the party has become aware of facts which he could not reasonably have known, or found out, in time for the first encounter.[109]

Factors relevant to the exercise of discretion to discharge an undertaking

[109] Chanel Ltd v F W Woolworth & Co Ltd [1981] 1 WLR 485, 492 - 493.

It is quite clear that the question whether maintenance of the undertaking would be unjust does not fall to be assessed solely by reference to the position of the party seeking to be released from its undertaking. The plurality in Adam P Brown clearly contemplated that the question of injustice was to be assessed by reference to all of the circumstances. That is apparent from their discussion of the decision of Smithers J at first instance. Their Honours noted that Smithers J had been 'confronted with competing assertions based on justice'.[110] The plurality noted, without criticism, that Smithers J had taken into account the position of Adam P Brown (which had adduced evidence of the impact of continued accordance with the undertaking on the preparation of its defence), and the position of Philip Morris (which did not adduce any evidence in support of its opposition to the release of the undertaking). Further, the plurality noted that the constraints his Honour sought to impose had regard to the public interest.[111]
[110] Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170, 179 (Gibbs CJ, Aickin, Wilson & Brennan JJ).
[111] Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170, 179 (Gibbs CJ, Aickin, Wilson & Brennan JJ).
Similarly, Murphy J noted that public interest considerations, as well as the parties' private interests, would be relevant to whether the undertaking should be discharged. His Honour noted that in cases of this kind (that is, those which involved the use of intellectual property), public interest considerations would be more important than the balancing of the parties' convenience. That was because the release of the original undertaking and acceptance of a new one would permit Adam P Brown to engage in additional conduct which it was alleged would involve misleading and deceptive conduct.[112]
[112] Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170, 180 (Murphy J).
In Adam P Brown, the plurality expressed their agreement with the reasons for decision of Fisher J (who dissented in the decision of the Full Federal Court). Relevantly for present purposes, two aspects of the judgment of Fisher J should be noted. First, his Honour rejected a submission that an undertaking would be discharged only where it was given in circumstances of mistake or error.[113] His Honour expressly rejected the contention that an undertaking could only be discharged in limited circumstances.[114] (It would be an unusual outcome to see a judicial discretion confined in such a way.)
[113] Philip Morris Inc v Adam P Brown Fashions Pty Ltd (1980) 44 FLR 88, 111 - 112 (Fisher J).
[114] Philip Morris Inc v Adam P Brown Fashions Pty Ltd (1980) 44 FLR 88, 112 (Fisher J).
Secondly, in considering the evidence before Smithers J which was relevant to the question of injustice from the perspective of Philip Morris, of Adam P Brown, and having regard to the public interest,[115] Fisher J took into account that 'there was no evidence that the undertaking was given to the court in the course of the carrying out of a compromise agreed between the parties.'[116] It is apparent that Fisher J considered that the fact that an undertaking was given as part of an agreement between parties to compromise proceedings would be relevant in assessing whether it would be unjust to maintain that undertaking.
[115] Philip Morris Inc v Adam P Brown Fashions Pty Ltd (1980) 44 FLR 88, 111 - 112 (Fisher J).
[116] Philip Morris Inc v Adam P Brown Fashions Pty Ltd (1980) 44 FLR 88, 112 (Fisher J).

The Bell Parties assumed that the Undertakings were final, but did not consider that the question required determination.[145]
[145] Bell Parties' submissions [36].
ICWA contended that the Undertakings were interlocutory in nature, but also did not consider that the question required determination.[146]
[146] ICWA's submissions [50] - [67].
BGNV's position was that the Undertakings are final in nature. Counsel for BGNV submitted that it was necessary for the Court to determine if the Undertakings were final or interlocutory because of the importance of the finality principle.[147]
[147] BGNV submissions [49].
In my view, it is unnecessary to resolve that dispute because the principles applicable to determining whether an undertaking should be discharged are the same, irrespective of whether the undertaking is final or interlocutory in nature. In any event, even if it is assumed that the Undertakings are final in nature, the application of those principles, in all of the circumstances of this case, is no different.

The parties' submissions

In summary, counsel for the Bell Parties submitted that the interests of justice favoured releasing the Undertakings for the following reasons:[148]
(i)Apart from BGNV (which was a plaintiff in the main Bell proceedings), all of the parties to the overlap resolution agreement now consent, or do not oppose, the release of the Undertakings. The position of the other parties is relevant because in its approach to undertakings and orders, the Court gives respect to the agreement or consent of relevant parties to litigation before it. However, positive consent by every potentially relevant party is not needed. The Bell Parties contend that of greatest significance is the fact that the Banks (as the parties that moved for injunctive relief, and sought the Undertakings instead of that relief) and the Bell Parties (as the parties burdened by the Undertakings) agree to the Undertakings being released, and that none of the other parties, apart from BGNV, oppose the release of the Undertakings. They say that the Banks' consent is of particular significance because it was the Banks who provided consideration for the Undertakings.
(ii)In so far as it is necessary to show that there has been a significant change of circumstances which now warrants the discharge of the Undertakings, the Banks' consent to the discharge of the Undertakings constitutes that significant change of circumstances;
(iii)While BGNV opposes the discharge of the Undertakings, its opposition derives from its separate capacity as a Senior Creditor of TBGL and BGF. WAG is in the same position. None of the Senior Creditors were involved in, or provided any consideration in return for, the Undertakings. They effectively obtained a windfall from the Banks' securing the Undertakings in the first place;
(iv)Given the analogy with the cases concerning setting aside consent orders, it is relevant that there is a real question about the legal correctness of the result brought about by the Undertakings. The Bell Parties contend that there is at least an arguable case that the Banks' original claims for injunctive and declaratory relief against the Bell Parties were not good in law;
(v)The public interest in the finality of litigation would not be significantly or negatively impacted by the release of the Undertakings because apart from BGNV and WAG (whose position is separately addressed below), all other parties with an interest in the finality of the Undertakings either consent or do not oppose their discharge;
(vi)The impact of the discharge of the Undertakings on BGNV and WAG would be limited. The Bell Parties contend that BGNV and WAG would not suffer any material or irreparable harm as a result. The impact on them is effectively limited to their exposure to the risk that desubordination of the bonds might be pursued at some stage in the future. However, if any proposal to bring about such desubordination were pursued in the future, BGNV and WAG would be in a position to bring a claim seeking relief to prevent that outcome, on such bases as they saw fit;
(vii)While the Bell Parties accept that the utility of the Applications is a factor relevant to whether maintenance of the Undertakings would be unjust, they say that there is practical utility here because the discharge of the Undertakings permits the possibility that desubordination of the bonds may be pursued;
(viii)Whether amendment of the Trust Deeds would be a breach of the Liquidators' duties is not relevant to a consideration of the utility of the Applications. The Bell Parties say that the question of potential breach of duty could only be assessed in light of a clearly specified proposed course of conduct by the Liquidator, and that assessment should properly take place in the context of an application to the Court (if one is ever made) by the Liquidator for directions. At this stage, there is no proposal for the Liquidator to pursue any particular course of conduct with respect to the Trust Deeds.
[148] Bell Parties' submissions [27] - [35]; Bell Parties' reply submissions [24] - [68].
In summary, ICWA's position was that it was in the interests of justice to release and discharge the Undertakings, having regard to the following matters:[149]
[149] ICWA submissions [35] - [49]; ICWA submission in reply [14] - [49]; Exhibit 17, Annexure DJH-38.
(i)The Banks, who sought relief in the main Bell proceedings, and in CIV 2061 of 1996, to prevent the amendment of the Trust Deeds, and in response to whose claims the Bell Parties and the LDTC agreed to give the Undertakings, no longer press those claims and agree to the release of the Undertakings;
(ii)The Bell Parties, and ICWA, consent to the discharge of the Undertakings;
(iii)The facilitation of Applications to discharge the Undertakings was agreed to (other than by BGNV) as part of the settlement of the main Bell proceedings;
(iv)The funding arrangements, pursuant to which ICWA made substantial payments to the Liquidator to fund the conduct of the main Bell proceedings, were entered into on the basis that steps would be taken to try and ensure ICWA's status as a subordinated creditor pursuant to the Trust Deeds would not frustrate an order made under s 564, including by amending the Trust Deeds as contemplated by the SSDs, and the discharge of the Undertakings would merely restore that position;
(v)ICWA agreed to the Undertakings being given in response to a request from the Liquidator, which resulted in a benefit to the plaintiffs in the main Bell proceedings (including BGNV and other Senior Creditors). That benefit was that the plaintiffs were not exposed to the risk that they should be refused relief on the basis that they did not have 'clean hands', because the execution of the SSDs would breach obligations that TBGL and BGF owed to the Banks. ICWA contends that the discharge of the Undertakings would not affect that benefit;
(vi)Initially ICWA submitted that while amendment of the Trust Deeds was unnecessary (because, on its case, any money paid to it under s 564 would not be subject to the subordination and turnover trust clauses in the Trust Deeds). However it also contends that if that was not the case, and if ICWA remains unable to bring about future amendments to the Trust Deeds, monies payable to ICWA or the LDTC pursuant to s 564 (including repayment of funds it advanced to the Liquidators) may be caught by the subordination and turnover trust clauses in the Trust Deeds, and would not ultimately be received by ICWA. ICWA contends that that possible consequence of the continuation of the Undertakings supports their discharge;
(vii)ICWA contends that the public interest in the finality of litigation and the effect on the interests of third parties are substantially outweighed by the other considerations set out above. To the extent that issues relating to the amendment of the Trust Deeds might be ventilated in the future, if the Undertakings are discharged, ICWA points out that those issues will be pursued by parties other than the Banks so that the Banks will not be adversely affected by the discharge of the Undertakings;
(viii)Any impact of the discharge of the Undertakings on the interests of the Senior Creditors, including BGNV and WAG, is not sufficient to warrant the refusal of the Applications. That is because the interests of the Senior Creditors will only be directly affected if amendments are in fact made to the Trust Deeds. Were such amendments to be sought, the LDTC and the Liquidator would seek directions from the Court, and at that stage, the Senior Creditors would have a right to be heard in opposition to the directions being given;
(ix)The discharge of the Undertakings would restore ICWA to the position it was in (with respect to potential amendments to the Trust Deeds) before the Undertakings were given – that is, in the position to take steps to effect an amendment to the Trust Deeds;
(x)There is utility in the release of the Undertakings, because they arguably operate as an impediment to settlement. That is because the Undertakings may be construed as precluding the Liquidators from executing any instrument which has the purpose or effect of amending the Trust Deeds, and this may be said to preclude the Liquidators agreeing to settle on terms that would have the same effect;
(xi)The Trust Deeds contain a power of amendment, and such legal rights should not be circumscribed, on an ongoing basis, where there is no good reason to do so.
In summary, BGNV submitted that the Bell Parties had not met the onus of establishing that the Undertakings should be discharged, having regard to the following:[150]
[150] BGNV submissions [132] ff.
(i)In so far as the Bell Parties claim that there is a real doubt about the legal correctness of the result brought about by the Undertakings, because the Banks' original claims for relief were not good at law, BGNV says that it is not open to the Bell Parties to call into question the validity of the Undertakings on the Applications, because the Applications are not the occasion for a review of the validity of the Undertakings, there was no question raised about the validity of the Undertakings when they were given by the Bell Parties, the validity of the Undertakings is the starting point for the exercise of the Court's discretion on an application to discharge, and in any event, there is no factual premise for the argument that the Banks' original claims for relief were not good in law;
(ii)In so far as the Bell Parties contend that aside from BGNV, all parties to the overlap resolution agreement consent to, or do not oppose, the release of the Undertakings, BGNV says that that contention is wrong. BGNV says that it, its liquidator, and the LDTC as the trustee of BGNV bonds, were all plaintiffs in the main Bell proceedings, and they either oppose (in the case of BGNV and its liquidator) or do not consent or oppose the release (in the case of the LDTC as the trustee of BGNV bonds), and that the non-opposition of other parties does not equate to consent;
(iii)In so far as the Bell Parties and ICWA contend that the consent of the Banks to the release of the Undertakings is a significant factor, BGNV disputes any such significance. It says that the Undertakings did not confer any personal right or remedy on the Banks, and that it cannot be said that the Banks brought CIV 2061 of 1996 to vindicate rights peculiar to them. Instead, BGNV says that the Banks' causes of action arose from their status as Senior Creditors of TBGL and BGF, and that CIV 2061 of 1996 was 'brought to protect the position of senior creditors as a whole and not simply to vindicate the rights of the banks'.[151] In addition, counsel for BGNV submitted that:
[151] BGNV submissions [182].
the position today is the same as it was at 7 October 2004. As at 7 October 2004, one or more senior creditors of TBGL and BGF opposed the proposal to implement the [SSDs], namely the banks. As at today one or more senior creditors of TBGL and BGF oppose the proposed desubordination of ICWA, namely WAG and BGNV. The position today is thus precisely the same as it was in 2004. The fact that the banks have changed their mind [as part of the settlement of the main Bell proceedings in 2014] simply means that the identity of the senior creditors who oppose the release has changed. This is irrelevant and does not constitute a significant change of circumstances. In addition, the undertakings in their terms protect the position of all senior creditors. The fact that one senior creditor no longer wants that protection (because it has received other benefits under the Deed of Settlement) is not a relevant change of circumstance.[152]
[152] BGNV submissions [186].
(iv)BGNV contended that the consent of the Banks, or the non-opposition of some but not all interested parties, did not render it unjust to hold the Bell Parties to their undertakings, when there was no suggestion that the Bell Parties could not comply with their Undertakings or that they would be exposed to an action for contempt;
(v)In so far as the Bell Parties and ICWA contend that the public interest in the finality of litigation will not be significantly negatively impacted because BGNV and WAG can litigate the underlying issues in CIV 2061 of 1996 in future litigation if they wish to do so, BGNV contended that this argument had no merit. Counsel for BGNV submitted that the time and cost in engaging in litigation is a prejudice to BGNV, and in any event, litigation of those issues would need to await the outcome of the distribution proceedings, with a considerable delay for BGNV in enjoying the fruits of any payment made pursuant to orders under s 564;
(vi)BGNV submitted that the Undertakings preserved and protected the position of Senior Creditors, because while they were in place, there were insurmountable obstacles preventing the desubordination of ICWA's status under the Trust Deeds. Without the Undertakings in place, ICWA would be entitled to seek to implement the SSDs. For that reason, BGNV says that it, and the other Senior Creditors, will be worse off if the Undertakings are discharged;
(vii)BGNV submitted that in assessing the question of prejudice arising from the discharge of the Undertakings, the Court should have regard to practical realities. These were said to include that there was no real prospect that ICWA would press for steps to be taken to implement the SSDs if it were unsuccessful in using s 564 to achieve the desubordination of ICWA's bonds;
(viii)BGNV says that the Bell Parties' submissions in relation to the finality principle are inconsistent with the High Court's recent approach to that principle. Counsel for BGNV submitted that Clone Pty Ltd v Players Pty Ltd (In Liq) (Receivers and Managers appointed)[153] establishes that a strict approach must be taken to finality, even if that sometimes leads to unjust results. BGNV says that that strict approach does not allow a balancing exercise through which the public interest in finality might be outweighed by other factors;
[153] Clone Pty Ltd v Players Pty Ltd (In Liq) (Receivers and Managers appointed) [2018] HCA 12.
(ix)BGNV says that ICWA's arguments concerning the funding arrangements in respect of the main Bell proceedings do not provide any ground for releasing the Undertakings. Counsel for BGNV submitted that while funding was provided on the basis that steps would be taken to try and amend the Trust Deeds, it continued notwithstanding that no such steps would be taken because the Undertakings had been given. In those circumstances, BGNV says it would not be unjust to continue to hold the Bell Parties to their Undertakings. He submitted that:
ICWA (and those who gave the undertakings) made a strategic and commercial decision. In return for eliminating the greater risk (a total loss in [the main Bell proceedings]), ICWA, LDTC and the Bell Parties were prepared to abandon for ever more the proposal to implement the [SSDs] … [and that the Undertakings], like those given in [APM Investments] were given deliberately to the court for good commercial reason, with eyes wide open.[154]
(xi)BGNV says that ICWA received significant benefits as a result of the giving of the Undertakings, including the risk that relief in the main Bell proceedings might be denied because of the Banks' 'unclean hands' defence, and avoiding the need to be made a party to the main Bell proceedings in its own right. Counsel for BGNV submitted that the
price paid by LDTC, ICWA and the plaintiffs for removing the overlap issues from [the main Bell proceedings] (and avoiding the Banks' 'unclean hands' defence) was LDTC and the Bell Parties giving final undertakings, permanently abandoning their proposal to execute the [SSDs].[155]
BGNV says that it is not just for ICWA to have enjoyed that benefit, and yet now seek to remove the burden it assumed in return;
(xii)BGNV says that the fact that the Undertakings prevent the amendment of the Trust Deeds, which may mean that any payment to ICWA or the LDTC may be caught by the subordination and turnover trust clauses, does not mean that it would be unjust to continue to enforce the Undertakings. BGNV says that that was the whole point of the Undertakings;
(xiii)BGNV says that as a result of the Undertakings, the Banks achieved the same outcome as they had sought by way of their claim for a permanent injunction preventing the Bell Parties and the LDTC from executing the SSDs, and that once the Banks' claims were discontinued, the Undertakings should remain in place, just as they would have done if the Banks' claims had resulted in judgment being given in their favour;[156]
(xiv)BGNV says that the Bell Parties do not presently intend to take steps to implement the SSDs. BGNV says that it is not unjust to hold the Bell Parties to undertakings that prevent them from doing that which they have no present intention of doing in any event.
[154] BGNV submissions [121].
[155] BGNV submissions [120].
[156] BGNV submissions [122], referring to Ellendale Pty Ltd v Graham Matthews Pty Ltd (1986) 11 FCR 347, 349 (Foster J).
WAG adopted BGNV's written submissions, and advanced additional grounds for contending that the Applications should be refused because it was not unjust to maintain the Undertakings. The additional factors to which WAG pointed[157] were:
(i)There is no practical utility in the relief sought because there is no evidence that the Liquidator seeks to do, or is even considering doing, that which he has undertaken not to do. The Liquidator only brought the Application because ICWA required that step to be taken.
(ii)Further, there is no practical utility in the relief sought because to enter into an agreement to amend the Trust Deeds would constitute a serious breach of the Liquidator's duties to protect the interests of the unsecured creditors of TBGL and BGF. The Court should not release the Liquidator from the Undertakings in those circumstances.
(iii)Finally, the Liquidator could not enter into any transaction to amend the Trust Deeds without obtaining a direction from the Court. WAG says that the appropriate point to determine if the Undertakings should be discharged is the point at which the Liquidator applies to the Court for a direction to do something which he is prevented by the Undertakings from doing.

Resolution of the Applications

[157] WAG's submissions [3] - [18].

In my view, the maintenance of the Undertakings in all of the circumstances which now exist, would be unjust. The Undertakings should be set aside. I have reached that view having regard to the following considerations.

First, since the Undertakings were given, a new fact or circumstance has arisen which supports the conclusion that the maintenance of the Undertakings would be unjust. That new fact or circumstance is that the Banks now consent to the discharge of the Undertakings. That change in the Banks’ position is clearly a new fact or circumstance, because it did not exist at the time the Undertakings were given, nor could it have been anticipated.
The Banks’ change in position constitutes a very significant departure from the position they adopted at the time when the Undertakings were given. At the core of the overlap resolution agreement was a bargain involving mutual promises by the Banks, on the one hand, and by the Bell Parties (and the LDTC) on the other hand. The Banks agreed not to pursue their claims concerning the alleged breaches of duty arising from the proposed amendment of the Trust Deeds, if, by giving the Undertakings, the Bell Parties and the LDTC promised not to pursue an amendment of the Trust Deeds. The giving of the Undertakings was the ‘price’ paid by the Bell Parties and the LDTC to ensure that the Banks’ claims were not pursued, so as to avoid the risks that those claims posed in the resolution of the main Bell proceedings. The Banks’ consent to the discharge of the Undertakings, given as part of the settlement of the main Bell proceedings, constitutes an agreement by the Banks not to continue to hold the Bell Parties and the LDTC to the ‘price’ demanded from them for the discontinuation of the Banks’ claims. In those circumstances, the Banks’ consent to the discharge of the Undertakings carries significant weight in the overall assessment of whether the maintenance of the Undertakings would be unjust.
For completeness, I should add that if (contrary to the view I have taken) it is necessary for the Bell Parties to establish the existence of a ground as a threshold step in the Applications, namely the existence of new facts or a significant change of circumstances, then Banks’ consent to the discharge of the Undertakings clearly satisfies that requirement.
Secondly, in circumstances where the Bank no longer requires the promise by the Bell Parties and the LDTC not to pursue an amendment of the Trust Deeds, the maintenance of the Undertakings gives rise to an unfairness to those parties, in the sense that they are restrained from pursuing any lawful amendment of the Trust Deeds, when there is no longer any reason for them to be subject to that restraint.
Thirdly, the conclusion that there is no longer any good reason for the Bell Parties to be subject to the restraint imposed by the Undertakings is supported by the fact that no participant in the overlap resolution agreement who gave any consideration for the giving of the undertakings now opposes the discharge of the Undertakings. Although BGNV and WAG oppose the discharge of the Undertakings, they were not participants in the overlap resolution agreement, or alternatively, even if they were, they did not give any consideration for the promises made by the Bell Parties and the LDTC not to seek to amend the Trust Deeds. I accept the submission by counsel for the Bell Parties that a more accurate description of the position of BGNV and WAG was that they effectively obtained a windfall benefit from the Banks’ success in securing the Undertakings. Accordingly, the attitude of BGNV and WAG to the discharge of the Undertakings warrants much less weight than that of the Banks.
Fourthly, although the discharge of the Undertakings represents the loss to BGNV and WAG of that windfall benefit, the significance of that loss must be kept in perspective. The discharge of the Undertakings will not result in any direct harm or tangible detriment to BGNV and WAG. What BGNV and WAG will lose is their insulation from the risk that there might, at some stage in the future, be an attempt to circumvent what they say is the operation of the subordination and turnover trust clauses in the Trust Deeds, either by the execution of the SSDs, or some other instrument which would have the same purpose or effect. However, any attempt to circumvent the effect of the Trust Deeds could not be done without their knowledge, and without them being given the opportunity to be heard in opposition. That is because any attempt to amend the Trust Deeds would, given the circumstances, require the Liquidators and the LDTC to obtain a direction from the Court as to the propriety of that course. BGNV and WAG, as creditors, would be entitled to be heard in opposition to such directions being given.
In any event, ICWA’s most recent, unambiguous, statement of its intention is that it does not intend to seek to secure the amendment of the Trust Deeds. Viewed in that light, the loss to BGNV and to WAG of the indirect and intangible benefit they derived from the Undertakings warrants very little weight in assessing whether the maintenance of the Undertakings would be unjust.
Fifthly, the maintenance of the Undertakings in the present circumstances has the potential to be detrimental to ICWA’s interests (and to the interests of all creditors of TBGL and BGF with an interest in achieving the speedy resolution of the distribution proceedings through a compromise). ICWA contended that the terms of the Undertakings left room for an argument that any agreement to settle the distribution proceedings in such a way as to circumvent what BGNV says is the operation of the subordination and turnover trust provisions would constitute a breach of the Undertakings. ICWA says that argument would be that such a settlement agreement would, by either its terms, purpose or effect, seek to circumvent the subordination and turnover trust clauses. In short, ICWA’s contention is that the maintenance of the Undertakings may be an impediment to the settlement of the distribution proceedings.
Although counsel for BGNV submitted that there was no merit in that contention, his submission proceeded on the assertion that it was not possible to circumvent the subordination and turnover trust clauses because to do so would involve a breach of trust, and that BGNV and WAG would never agree to such a course in any event.[158] I do not accept the thrust of that submission. Further settlement discussions are imminent. The views of parties to litigation often change in the course of a mediation. The parties’ ingenuity to devise a settlement agreement for the distribution proceedings which is satisfactory to them all should not be underestimated. It is also in the interests of all parties to the distribution proceedings that there be every opportunity for them to reach an agreement to settle those proceedings. In those circumstances, if the discharge of the Undertakings removes a potential impediment to the settlement of the distribution proceedings, that consideration, in my view, warrants significant weight in assessing whether maintenance of the Undertakings would be unjust.
[158] ts 430 – 431.
Sixthly, I am not persuaded by the submissions of BGNV and WAG that there is no utility in the Applications, and that that weighs against the discharge of the Undertakings. At the least, eliminating a potential impediment to the settlement of the distribution proceedings means that the discharge of the Undertakings would have utility.
Seventhly, while there is a public interest in the finality of orders made by courts, and consequently in the finality of undertakings (which stand in no different position), that consideration is not determinative in assessing whether maintenance of the Undertakings would be unjust in this case. That is so for several reasons. The first is that the finality of the transaction of which the Undertakings formed a part – namely the overlap resolution agreement – has already been undermined by the Banks’ decision not to insist on the maintenance of the Undertakings. In addition, the principle of finality warrants less weight in circumstances where most of the other participants in the overlap resolution agreement (and none of the parties who gave consideration for the Undertakings) now do not oppose the discharge of the Undertakings, and where the facilitation of the Applications was agreed by all parties in the settlement of the main Bell proceedings (other than BGNV).
In reaching that view, I have not overlooked the fact that the Undertakings were given over 13 years ago. However, the protracted nature of the main Bell proceedings was such that the settlement of those proceedings occurred only four years ago, at which point, as I have said, all parties, save BGNV, agreed to facilitate the discharge of the Undertakings. In those circumstances, the lengthy period of time in which the Undertakings have been in place does not weigh so heavily in the balance.
In so far as counsel for BGNV submitted that the decision of the High Court in Clone Pty Ltd v Players Pty Ltd (In Liq)[159] requires a very strict approach to the principle of finality in this case, I reject that submission. The decision in Clone concerned the narrow bounds of a court’s power to set aside a perfected judgment on the basis of fraud. It did not concern the discharge of an undertaking. While the Court certainly emphasised the public interest in the finality of litigation, nothing in its reasons elevated that consideration to an insurmountable threshold. Yet that is the effect of BGNV’s submission that the public interest in the finality of litigation cannot be outweighed by other factors. The Court’s jurisdiction to discharge an undertaking necessarily involves balancing a range of factors relevant to the question whether it is unjust for that undertaking to be maintained. Those factors include the public interest in the finality of litigation. Were the principle of finality to be applied as strictly as BGNV submits, the Court’s discretion to discharge an undertaking, especially a final undertaking, would be rendered nugatory.
[159] Clone Pty Ltd v Players Pty Ltd (In Liq) (Receivers and Managers Appointed) and Ors [2018] HCA 12.
As for BGNV’s submission that the maintenance of the Undertakings was not unjust because there was no suggestion that the Bell Parties could not comply with their Undertakings, I am unable to accept that submission. As the facts of the authorities to which I have referred illustrate, many applications to discharge undertakings do not arise from any inability to comply with the undertaking. Instead, the unfairness in maintaining an undertaking may arise in spite of the fact that it is possible to continue to comply with the promise in question. To circumscribe the exercise of the discretion to discharge an undertaking by reference to whether it remains possible to comply with the undertaking is an approach which is neither required, nor warranted, by the authorities.
I turn, next, to the Bell Parties' submissions as to the relevance of factors that will be taken into account in setting aside a consent order. Given my view of the limited assistance provided by that analogy, it is not necessary to consider the factors which may be relevant to setting aside consent orders, and in particular, the legal correctness of the result reflected in the perfected order. Accordingly, it is not necessary to embark on any analysis of the merit of the submission advanced by counsel for the Bell Parties, namely that the Banks’ original claims for injunctive and declaratory relief against the Bell Parties were arguably not good in law.
Further, given ICWA’s unambiguous statement that it does not intend to pursue an amendment of the Trust Deeds, it is not necessary to examine WAG’s submission that there is no utility in the Applications because any amendment of the Trust Deeds would constitute a breach of the Liquidators’ duties which would not be countenanced by the Court through the discharge of the Undertakings.
I turn, next, to WAG’s submission that any decision in relation to the discharge of the Undertakings should be deferred until such time as there is a clear proposal to amend the Trust Deeds, at which point the Liquidator will need to seek a direction from the Court that it would be proper to take that step. That submission must be rejected. The Liquidator has obtained a direction from the Court that it is proper to bring the Applications. The Applications have been brought, and they have been the subject of extensive evidence and submissions. There is no impediment to determining the Applications at this point. They should now be determined so that the parties can focus on endeavouring to settle the distribution proceedings, or preparing for the trial of the distribution proceedings.
I will hear from the parties as to the orders which should be made.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LF
ASSOCIATE TO THE HONOURABLE JUSTICE PRITCHARD
1 JUNE 2018