DD Investment WA Pty Ltd v Infinite Green Energy Limited - [2025] WASC 118

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   DD INVESTMENT WA PTY LTD -v- INFINITE GREEN ENERGY LIMITED [2025] WASC 118
CORAM:   STRK J
HEARD:   7, 12 & 14 MARCH 2025
DELIVERED          :   14 MARCH 2025
PUBLISHED           :   11 APRIL 2025
FILE NO/S:   COR 26 of 2025
BETWEEN:   DD INVESTMENT WA PTY LTD
Plaintiff
AND
INFINITE GREEN ENERGY LIMITED
Defendant

Catchwords:

Corporations - Appointment of a provisional liquidator pursuant to s 472(2) of the Corporations Act 2001 (Cth) - Procedural requirements - Whether the plaintiff has reasonable prospects of obtaining a winding up order - Prospects of winding up on the insolvency ground (s 459A and s 459P of the Corporations Act 2001 (Cth)) - Whether there is a good reason for intervention prior to the final hearing of the winding up application - Undertakings provided - Turns on own facts

Legislation:

Corporations Act 2001 (Cth), s 459A, s 459P, s 459Q, s 462, s 465A, s 472
Supreme Court (Corporations) (WA) Rules 2004 (WA), r 6.1
Corporations Regulations 2001 (Cth), reg 5.4.01A

Result:

Application to appoint provisional liquidator refused; undertakings to be filed; application otherwise adjourned sine die

Category: B

Representation:

Counsel:

Plaintiff	:	ML Bennett & NE Kanayake (7 March 2025); NE Kanayake (12 and 14 March 2025)
Defendant	:	In person (7 March 2025); J Nagle (12 March 2025); TG Langdon (14 March 2025)

Solicitors:

Plaintiff	:	Bennett
Defendant	:	Edwards Mac Scovell Legal

Cases referred to in decision:

Australian Securities and Investments Commission v AGM Markets Pty Ltd (ACN 158 706 766) [2018] FCA 1119; (2018) 129 ACSR 335
Hall v CAP Security Services Pty Ltd [2023] FCA 1237
M2 Assets Pty Ltd v GT Capital Partners Pty Ltd [2022] WASC 331

STRK J:

(This judgement was delivered extemporaneously on 14 March 2025 and has been edited to correct infelicities of language, and to include headings, complete references and citations.)

Introduction

By an originating process filed on 25 February 2025, DD Investment WA Pty Ltd commenced a proceeding under the Corporations Act 2001 (Cth) and named Infinite Green Energy Limited as the defendant.
Pursuant to s 459P and s 472(2) of the Corporations Act (relying upon s 459C(2)(a)), DD Investment applied for the appointment of a provisional liquidator and for Infinite Green Energy to be wound up on the ground that it is insolvent. DD Investment makes the application in circumstances where it contends that:[1]
(a)on or about 26 November 2024 DD Investment obtained judgement in this court against Infinite Green Energy in the amount of $3,852,325.48 (Judgement Debt);
(b)on or about 25 January 2025 a statutory demand was served on a director of Infinite Green Energy, Stephen James Gauld,[2] in accordance with s 109X(1)(b) of the Corporations Act;
(c)as at 18 February 2025 Infinite Green Energy had failed to comply with the statutory demand within the statutory period referred to in s 459F of the Corporations Act; and
(d)pursuant to s 459C(2)(a) of the Corporations Act, the court must presume that Infinite Green Energy is insolvent.
[1] Originating process filed 25 February 2025, pt A.
[2] It appears that in the originating process filed 25 February 2025 at par 2, Stephen James Gauld is incorrectly referred to as Steven James Gauld.
By way of final relief, DD Investment applied for an order that Infinite Green Energy be wound up in insolvency pursuant to s 459A of the Corporations Act; and that Aaron Dominish, Richard Albarran and Cameron Shaw of Hall Chadwick be appointed as official liquidators of Infinite Green Energy.
The application was given a first return date of 10 April 2025 before the Master. Before that return date and pending determination of the winding up application, DD Investment applied on an urgent basis for the appointment of Messrs Dominish, Albarran and Shaw of Hall Chadwick as joint and several provisional liquidators of Infinite Green Energy. The interlocutory application was pressed in circumstances where DD Investment contends that:[3]
(a)pursuant to s 459C(2)(a) of the Corporations Act, Infinite Green Energy is presumed to be insolvent;
(b)there is a reasonable prospect that a winding up order will be made; and
(c)there is a risk that Infinite Green Energy is currently trading insolvently and/or that its assets may be dissipated extraterritorially.
[3] Originating process filed 25 February 2025 par 5.
A certificate of urgency was filed on 4 March 2025, by which Martin Bennett of Bennett (the solicitors on the record for DD Investment) certified that the originating process was of such an urgent nature that it was required to be listed at the first available date in this court's Corporations List; that all documents necessary for the making of an order accompanied the originating process; and that Infinite Green Energy had been served with the originating process and supporting documents. By a letter addressed to the Associate to the Principal Registrar filed on 4 March 2025, the court was informed that despite attempts to serve Infinite Green Energy at its registered office, access to the registered office so recorded with the Australian Securities Investments Commission (ASIC) had not been achieved, but that Infinite Green Energy had been served with the originating process and the (then filed) supporting documents through personal service of the same on one of its directors, Mr Gauld.
In the circumstances certified by Mr Bennett, the originating process was listed on 7 March 2025 for the urgent hearing of the application to appoint provisional liquidators to Infinite Green Energy.
No notice of appearance was filed on behalf of Infinite Green Energy prior to the hearing on 7 March 2025. At that hearing, Mr Gauld sought leave to address the court.
On behalf of Infinite Green Energy, Mr Gauld informed the court that he had not been aware that the defendant corporation was required to be represented at any hearing by a legal practitioner (despite the warning on the originating process). With leave, Mr Gauld advocated on behalf of Infinite Green Energy for an adjournment so that, among other things, Infinite Green Energy could instruct a legal practitioner to defend the application. In circumstances where Mr Gauld expressed an intention to cause Infinite Green Energy to promptly engage a legal practitioner, the application to appoint a provisional liquidator was adjourned to 12 March 2025, and programming orders were made, a copy of which are produced at sch A to these reasons.
While a notice of appearance was filed by a legal practitioner in the action on behalf of Infinite Green Energy on 11 March 2025, no affidavit in opposition to DD Investment's application to appoint provisional liquidators was filed within the timeframe prescribed. Upon the offer of the provision of an undertaking by Infinite Green Energy and its director, Mr Gauld, to maintain the status quo and as to damages, by orders made on 12 March 2025, the application was further adjourned to the afternoon of 14 March 2025. A copy of the orders made on 12 March 2025 are produced at sch B to these reasons.
In the interim, in opposition to the appointment of provisional liquidators, an outline of submissions and an affidavit affirmed by Charmaine Ruth James (a lawyer employed by Edwards Mac Scovell Legal, solicitors for Infinite Green Energy) were filed. With leave, Ms James' affidavit was read and relied upon at the hearing of the application. (Leave was sought in circumstances where the time for filing of any affidavit in opposition to the application was by 9.30 am on 14 March 2025, and the court was informed that Ms James' affidavit had been filed about one hour out of time.)
Shortly prior to the hearing of the application on 14 March 2025, a further affidavit was filed with the court on behalf of DD Investment. That affidavit was also read in support of the application, intended to supplement the evidence that had been read and relied upon on behalf of DD Investment to date.
After hearing the parties, in light of the undertaking proffered (and its continued operation), and on the basis that a relatively tight time frame for the hearing of the substantive application to wind up of Infinite Green Energy could be accommodated, I concluded that it was not appropriate that the nominated provisional liquidators be appointed to Infinite Green Energy pending the hearing and disposition of that winding up application. My reasons for so finding are as follows.

Evidence

Various affidavits were read on behalf of DD Investment and one affidavit was read on behalf of Infinite Green Energy.

First affidavit of Mr Cao

The originating summons was supported by the affidavit of Gang Cao, who also goes by the name Richard Cao, sworn on 25 February 2025, to which Mr Cao attached documents marked 'GC‑1' to 'GC‑37'.
Mr Cao deposed to being a business consultant employed by Aus Consulting Group Pty Ltd; to having been retained by DD Investment as its agent to attempt to recover the Judgement Debt from Infinite Green Energy; to having personal knowledge relating to DD Investment's attempts to recover the Judgement Debt from Infinite Green Energy; and to being duly authorised to swear his affidavit on behalf of DD Investment in support of the application to appoint provisional liquidators to Infinite Green Energy and for orders winding up Infinite Green Energy.
Among other things, Mr Cao deposed to the background to the Judgement Debt; the preparation and service of a statutory demand on Infinite Green Energy with respect to the Judgement Debt; to the basis of his knowledge that as at the date of his affidavit, Infinite Green Energy had neither satisfied the Judgement Debt, nor taken any steps to set aside the statutory demand; to Messrs Dominish, Albarran and Shaw having consented to being appointed provisional liquidators and/or official liquidators of Infinite Green Energy; to the attempts that had been made to recover the Judgement Debt from Infinite Green Energy; and to the basis for the concern held by DD Investment that Infinite Green Energy was already and continues to trade insolvently, may have assets outside of this jurisdiction and/or outside Australia that may be dissipated if Infinite Green Energy continues to trade without provisional liquidators being immediately appointed, and that there is a risk that DD Investment will not be able to recover its Judgement Debt or any part thereof from Infinite Green Energy.
As to the attempts made to recover the Judgement Debt from Infinite Green Energy, among other things, Mr Cao deposed that on 23 December 2024, Mr Gauld advised Mr Cao by email that the funds were arriving and attached what purported to be a Deutsche Bank Swift Transfer notification for US$20 million.
Among other things, Mr Cao attached to his affidavit a true copy of an historical ASIC search for DD Investment dated 20 February 2025; a true copy of an historical ASIC search for Infinite Green Energy dated 20 February 2025; a true copy of the writ of summons filed in this court on or about 23 October 2024 (by which a proceeding known as CIV 2253 of 2024 was commenced and in which DD Investment was the first plaintiff of a total of three plaintiffs and Infinite Green Energy was the defendant); a true copy of the orders of Registrar Griffin dated 26 November 2024 entering judgement in favour of DD Investment against Infinite Green Energy in the proceeding known as CIV 2253 of 2024 in the amount of $3,852,325.48 (being the principal sum of $3,791,250 together with interest thereon of $61,075.48); a true copy of an email from Mr Gauld to Mr Cao dated 23 December 2024 attaching a document that was purported to be a Deutsche Bank Swift Transfer notification for US$20 million; a true copy of an affidavit of Cheryl Lorraine Harrison, a process server, sworn on 29 January 2025, annexing a copy of the statutory demand served on Mr Gauld, a director of Infinite Green Energy; a true copy of the consent of liquidator dated 20 February 2025 which was signed by Messrs Dominish, Albarran and Shaw of Hall Chadwick; various email communications, together with screenshots of WhatsApp and various text messages; and a true copy of announcements made by Infinite Green Energy on 19, 21 and 24 October 2024.

Mr Cao's supplementary affidavits

The application was also supported by three supplementary affidavits of Mr Cao sworn on 6 March 2025, 7 March 2025 and 12 March 2025. Mr Cao attached documents marked 'GC-38' to 'GC-43' to the supplementary affidavit sworn on 6 March 2025; documents marked 'GC-44' to 'GC-46' to the supplementary affidavit sworn on 7 March 2025; and documents marked 'GC-47' and 'GC-48' to the supplementary affidavit sworn on 12 March 2025.

Mr Cao's supplementary affidavit sworn on 6 March 2025

In his supplementary affidavit sworn on 6 March 2025, Mr Cao deposed to events that had occurred since he deposed his first affidavit. Among other things, Mr Cao deposed to correspondence that had passed between him and Mr Gauld on 25 February 2025 concerning a part payment proposal. He attached to his supplementary affidavit an email from Mr Gauld to Mr Cao sent on 25 February 2025, and a copy of screenshots of text messages that passed between Mr Cao and Mr Gauld on 26 February 2025. Mr Cao also deposed that he did not receive any email responding to his message to Mr Gauld or proposing on behalf of Infinite Green Energy a part payment to creditors.
Mr Cao deposed that he was informed by Bennett and verily believed that on 5 March 2025, Bennett emailed Mr Gauld and advised him that the hearing of this application had been listed on 7 March 2025 at 11.30 am. In this regard, Mr Cao attached to his supplementary affidavit a true copy of an email from Bennett to Mr Gauld dated 5 March 2025, annexing a Supreme Court Listing Notice.
Mr Cao further deposed to communications that had passed by the exchange of text messages as between Mr Cao and Mr Gauld on 5 March 2025, which included a request made by Mr Gauld for an adjournment of one week, together with a statement that Mr Gauld would arrange for a direct transfer of funds to DD Investment. In this regard, Mr Cao attached to his supplementary affidavit a true copy of an exchange of text messages between Mr Cao and Mr Gauld dated 5 March 2025.
Mr Cao also referred to his first affidavit and to the advice provided by Mr Gauld on 23 December 2024 by email that the funds were arriving and attached what purported to be a Deutsche Bank Swift Transfer notification for US$20 million, described at [18] above. Mr Cao in his supplementary affidavit deposed that since that time, he had made enquiries with Deutsche Bank as to the veracity of the Deutsche Bank Swift Transfer notification. In this regard, Mr Cao deposed that on or about 27 February 2025, he contacted Andrew Farquhar of Deutsche Bank to enquire whether the Deutsche Bank Swift Transfer notification was authentic, and that he spoke with Mr Farquhar on or about 5 March 2025, in the course of which Mr Farquar advised Mr Cao that the Swift Transfer notification was not an authentic document issued by Deutsche Bank. Mr Cao also attached to his supplementary affidavit a true copy of an email exchange between Mr Cao and Mr Farquhar dated 5 March 2025 with respect to the Deutsche Bank Swift Transfer notification, and in which Mr Farquar confirmed that the attached document queried by Mr Cao was not authentic and was not issued by Deutsche Bank.
Mr Cao further deposed that on 5 March 2025, Mr Gauld forwarded another email communication to him, purporting to be confirmation that payment was imminent and requesting an adjournment of the court proceedings. Mr Cao attached to his supplementary affidavit a true copy of an email dated 5 March 2025 from Mr Gauld, to which was attached what on its face appears to be a Deutsche Bank Swift Transfer notification for the amount of €49 million. Mr Cao further deposed that he had forwarded the Deutsche Bank Swift Transfer notification for the amount of €49 million to Deutsche Bank to determine its authenticity, but as at the time of swearing his second affidavit, he had not received a response.
Mr Cao deposed that the position of DD Investment, articulated to him by Anna Dou (the director of DD Investment), was that DD Investment did not wish for Mr Cao to respond to Mr Gauld's most recent correspondence and that it has serious concerns as to the ability to recover the Judgement Debt if the court proceeding was further adjourned.
Finally, Mr Cao deposed to the basis for his belief that as at 6 March 2025, Infinite Green Energy had not paid DD Investment the Judgement Debt or any part of it.

Mr Cao's second supplementary affidavit sworn on 7 March 2025

In his second supplementary affidavit sworn on 7 March 2025, Mr Cao deposed to further events since he deposed to his supplementary affidavit sworn on 6 March 2025.
Among other things, Mr Cao deposed to receiving an email from Mr Gauld at 8.41 pm on 6 March 2025 to which Mr Gauld had attached what appeared to be a further Deutsche Bank Swift Transfer notification transferring €2.7 million to DD Investment. Mr Cao attached to his second supplementary affidavit a true copy of an email from Mr Gauld dated 6 March 2025 attaching the Deutsche Bank Swift Transfer notification.
Mr Cao further deposed that on 7 March 2025 at 12.03 am, Mr Cao emailed Deutsche Bank attaching a copy of the Swift Transfer notification referred to at [28] above, enquiring as to its authenticity.
Mr Cao deposed that on 7 March 2025 at 7.27 am, he received an email from Deutsche Bank, in which Deutsche Bank:
(a)confirmed that the Swift Transfer notification dated 5 March 2025 (being the notification referred in and attached to Mr Cao's first supplementary affidavit and described at [24] above) was not an authentic document issued by Deutsche Bank; and
(b)as the Swift Transfer Notification of 6 March 2025 was from the same sender as that of 5 March 2025, it should be viewed with a 'high degree of skepticism'.
Mr Cao attached to his second supplementary affidavit a true copy of an email from Mr Farquhar of Deutsche Bank sent to Mr Cao on 7 March 2025 at 7.27 am, attaching what purported to be Deutsche Bank Swift Transfer notifications dated 5 March 2025 and 6 March 2025.
Finally, in his second supplementary affidavit, Mr Cao deposed that he had spoken with Ms Dou, the director of DD Investment, and verily believed that, as at 7 March 2025 Infinite Green Energy had not paid DD Investment the Judgement Debt or any part of it.

Mr Cao's third supplementary affidavit sworn on 12 March 2025

In his third supplementary affidavit, Mr Cao further deposed to his communications with Deutsche Bank, in which he was advised that the SWIFT transfer notification of 6 March 2025 was not an authentic document issued by Deutsche Bank.
Mr Cao also attached various ASIC records, including a comprehensive current and historical extract of Infinite Green Energy and a copy of the financial statements and reports of Infinite Green Energy dated 30 June 2023. Again, it was deposed that the Judgement Debt had at that date not been paid.

Process server affidavits

Counsel for DD Investment relied on two affidavits sworn by Ms Harrison, the process server referred to by Mr Cao in his first affidavit.
I include in these reasons a summary of Ms Harrison's affidavits as it was submitted on behalf of DD Investment that the cumulative effect of all of the evidence is that the court has a good reason for intervention, which includes the evidence of Ms Harrison as to the difficulty experienced in accessing the registered office of Infinite Green Energy for the purpose of service, and to the various arrangements that were caused to be made and remade so that papers could be served upon the director of Infinite Green Energy.

By the first affidavit of attempted service sworn on 4 March 2025, Ms Harrison deposed to attempting to serve Infinite Green Energy with the documents filed with the court in this action including the originating process filed on 25 February 2025, the consent of the liquidator filed on 25 February 2025 and the affidavit of Mr Cao sworn on 25 February 2025. She further deposed to being unable to access the registered office without a security pass and communicating with Mr Gauld by telephone on 25 February 2025 at 3.23 pm during which Mr Gauld advised he would meet Ms Harrison at 99 St Georges Terrace at 10.00 am on 26 February 2025. Ms Harrison attached to her affidavit screenshots of text messages with Mr Gauld with respect to their arrangements to meet in person to effect service of the documents. Ms Harrison attached true copies of the screenshots to her first affidavit marked 'CLH‑1'.
By the second affidavit of service sworn on 5 March 2025, Ms Harrison deposed to the service of documents which included the originating process, the consent of the liquidator, and the affidavit of Mr Cao sworn on 25 February 2025. She deposed that service was effected by handing the documents to Mr Gauld on 4 March 2025 (that is, not on 26 February 2025 as had been arranged).

Affidavit of Pragya Srivastava affirmed on 14 March 2025

Counsel for DD Investment also relied on an affidavit sworn by Ms Srivastava (a lawyer in the employ of Bennett, the solicitors for DD Investment), affirmed on 14 March 2025. Attached to the affidavit was a copy of email communication sent by Bennett to an ASIC email address, by which Bennett on behalf of DD Investment caused a form 519 notice (relating to this proceeding), to be presented for lodgement with ASIC at 12.28 pm on 14 March 2024.

Affidavit of Ms James affirmed on 14 March 2025

In opposition to the application for the appointment of provisional liquidators, counsel for Infinite Green Energy relied on the affidavit of Ms James affirmed on 14 March 2025, to which Ms James attached documents marked 'CRJ1' and 'CRJ2'.
Ms James attached a search obtained from ASIC which revealed that that the form 519 notification of court action relating to winding up had not been lodged with respect to this proceeding. Further, she attached copies of screenshots taken from ASIC's published notices website on 14 March 2025, having searched Infinite Green Energy's Australian Company Number and company name. The screenshots revealed that that no notice of this proceeding had been published by DD Investment.
During the hearing on 14 March 2025 counsel for Infinite Green Energy drew attention to par 6 of Ms James' affidavit which provided evidence as to the willingness of Infinite Green Energy and Mr Gauld to provide certain undertakings in this proceeding, which paragraph reads:
On the morning of 14 March 2025, I had a discussion with Mr Stephen Gauld, a director of the defendant. During that discussion, Mr Gauld informed me, and I verily believed, that he and the defendant are willing and able to provide a further undertaking on the same terms as the undertaking provided to the court and to the plaintiff on 12 March 2025 from today until the determination of these proceedings.

Applicable principles with respect to the appointment of a provisional liquidator

The principles to be applied in the disposition of an application made under s 472(2) of the Corporations Act are well settled, and were summarised in M2 Assets Pty Ltd v GT Capital Partners Pty Ltd [2022] WASC 331 at [125] to [126]. I reproduce the same below.
In Australian Securities and Investments Commission v AGM Markets Pty Ltd (ACN 158 706 766) [2018] FCA 1119; (2018) 129 ACSR 335, Beach J set out the principles relevant to the appointment of a provisional liquidator at [78] to [87] in the following terms:
[78]Section 472(2) of the Corporations Act empowers me to appoint a provisional liquidator at any time after the filing of a winding up application and before the making of a winding up order.
[79]Now although I have a broad discretion whether to appoint a provisional liquidator, nevertheless an applicant for the appointment of a provisional liquidator is required to establish two things.
[80]First, the applicant must show that it has reasonable prospects of obtaining a winding up order. As a consequence, there is a significant overlap between the matters relevant to determining whether to wind up a company on the just and equitable ground, and the matters that weigh in favour of the exercise of my discretion to appoint a provisional liquidator.
[81]Second, an applicant for the appointment of a provisional liquidator must show that there is some good reason for intervention prior to the final hearing of the winding up application, for example that the appointment is needed in the public interest or to preserve the status quo or to protect the company's assets and affairs.
[82]Now it has often been said that the appointment of a provisional liquidator pending the determination of a winding up application is a drastic intrusion into the affairs of a company and should not be ordered if other measures would be adequate to preserve the status quo. Now such considerations are important, but they do not of themselves necessarily limit my jurisdiction or exercise of power to appoint a provisional liquidator.
[83]Factors relevant to the exercise of my discretion to appoint a provisional liquidator include:
(a)whether the affairs of the company have been conducted casually without due regard being given to the applicable legal requirements so as to cause me to have no or little confidence that the affairs of the company are being carried out properly;
(b)whether the assets of the company will be dissipated in the interim period between the filing of the application to wind up and the winding up order being made;
(c)whether in the public interest there is a need for an examination of the state of the accounts of the company; and
(d)whether, if the appointment was not made, there was a strong possibility that there would be further acts, omissions or events which would be detrimental to creditors or shareholders.
[84]But unless an applicant can demonstrate that there is a need for interim control of the company pending the winding up of the company, no appointment will be made. It is not by itself enough, for example, that the company has not traded for some time. It is also not enough by itself that a provisional liquidator might be able to undertake investigations which might be fruitful (Allstate Explorations NL v Batepro Australia Pty Ltd [2004] NSWSC 261 at [37] per Austin J).
[85]But it may be appropriate to appoint a provisional liquidator where the affairs of the company have been carried on casually and without due regard to legal requirements so as to leave me with no confidence that the company's affairs would be properly conducted with due regard for the interests of creditors and shareholders.
[86]Further and generally speaking, it is also necessary to consider the degree of urgency and the balance of convenience.
[87]Further, where the company opposes the application for the appointment of a provisional liquidator, the onus on an applicant may not be as heavy as it would be otherwise. If the applicant's affidavits raise matters to which one would expect there to be some answer and there is no answer provided, then that may raise a suspicion that it may well be in the public interest to appoint a provisional liquidator.
In the determination of the application before me, I adopted and applied these principles.

Disposition

Power to appoint a provisional liquidator

The court has the power pursuant to s 472(2) of the Corporations Act to appoint a provisional liquidator of a company at any time after the filing of a winding up application and before the making of a winding up order. In circumstances where DD Investment by this proceeding has applied to wind up Infinite Green Energy, which application has not yet been determined, I was satisfied that I had the power to appoint a provisional liquidator to Infinite Green Energy. I did not understand Infinite Green Energy to contend otherwise.

Procedural requirements

The procedural requirement prescribed in r 6.1(1) of the Supreme Court (Corporations) (WA) Rules 2004 (WA) was met, in that the written consent of a registered liquidator accompanied the application in the approved form.[4] Again, I did not understand Infinite Green Energy to contend otherwise.
[4] Supreme Court (Corporations) (WA) Rules 2004 r 6.1(2), Form 8.
During the course of the hearing on 14 March 2025 submissions were made as to whether there were other procedural requirements for the appointment of a provisional liquidator, and the consequence of the same (matters which were addressed particularly by Ms James in her affidavit). That is, whether or not procedural requirements that arise upon the filing of an application to wind up a company are procedural requirements that arise for the purposes of an application to appoint a provisional liquidator.
On behalf of Infinite Green Energy it was submitted that there had been a failure on the part of DD Investment to comply with the relevant requirements, in particular s 465A(1)(a) and s 465A(1)(c) of the Corporations Act, and reg 5.4.01A of the Corporations Regulations 2001 (Cth).[5] Infinite Green Energy complained that failure will have prejudiced the ability of any other creditor or interested party to appear at the hearing of the application, including to be heard on the application to appoint a provisional liquidator.[6]
[5] Defendant's outline of submissions filed on 14 March 2025 par 10.
[6] Defendant's outline of submissions filed on 14 March 2025 par 11.
In summary, DD Investment submitted that the failure to comply with the procedural requirements were not an impediment to the appointment of a provisional liquidator, as they were only procedural requirements for the purposes of the application to wind up the company, which was not the relief now pressed.
As to the submissions made, I noted that the power to appoint a provisional liquidator only arises after the application to wind up a company has been made,[7] at which time various procedural requirements arise; and in this case, the requirements were not satisfied within the timeframe prescribed. I also noted that the power to grant dispensation under s 467(3)(b) of the Corporations Act, so that, for example, in circumstances of urgency the need to comply with the procedural requirements could be dispensed with in any event.[8]
[7] Corporations Act s 472(1).
[8] Hall v CAP Security Services Pty Ltd [2023] FCA 1237 [53].
I also noted that in exercising the power to appoint a provisional liquidator, the court may weigh the views of interested third parties and the public interest in the balance, such that there was some weight in the prejudice identified by counsel for Infinite Green Energy.
While steps ought now be taken to correct the procedural omissions, I did not consider that the application to appoint a provisional liquidator in this case rose nor fell on that basis of compliance alone. That is, I did not consider the procedural matters raised to be determinative of the application.

Standing

As a creditor of Infinite Green Energy, DD Investment may apply to wind up Infinite Green Energy.[9] In the circumstances, I was satisfied that the application had been initiated by an entity with the requisite standing.

Reasonable prospects of obtaining a winding up order

[9] Corporations Act s 459P(1)(b).

The winding up of Infinite Green Energy was sought by DD Investment on the insolvency ground (s 459A and s 459P of the Corporations Act).
The contentions of DD Investment reproduced at [2(a)] to [2(c)] above were substantiated by the evidence read. In the circumstances deposed to, when considering whether to make an order that Infinite Green Energy be wound up in insolvency, by the operation of s 459C(2)(a) of the Corporations Act, the court will be obliged to presume that Infinite Green Energy is insolvent, as during the three months ending on the day when the application to wind up was made (25 February 2025), Infinite Green Energy failed (as defined by s 459F) to comply with the statutory demand. That presumption will operate except so far as the contrary is proved for the purposes of the application.
In light of the presumption, and in circumstances where DD Investment has standing to seek that Infinite Green Energy be wound up, I was satisfied that DD Investment has reasonable prospects of obtaining a winding up order.

Good reason for intervention

As the applicant for the appointment of a provisional liquidator, DD Investment must show that there is some good reason for intervention prior to the final hearing of the winding up application, for example that the appointment is needed in the public interest, or to preserve the status quo, or to protect the company's assets and affairs. In the end, in all of the circumstances, I did not consider there to be sufficient reason to intervene. Among other things, I weighed the following in the balance.
I noted Mr Cao's evidence that from around June 2024 onwards, Mr Gauld on behalf of Infinite Green Energy had made various promises of payment, none of which came to fruition.[10] I did not however consider the evidence concerning promises of payment that were not honoured to be a sufficient reason for intervention.
[10] Affidavit of G Cao sworn 25 February 2025 par 20.
I noted that Mr Cao also deposed to public announcements made by Infinite Green Energy in October 2024, and that he had attached to his affidavit copies of the same.
In this regard I noted Mr Cao's evidence that Infinite Green Energy on 19 October 2024 made a public announcement recording that there was a new investment of US $35 million proposed from an entity in the United Kingdom;[11] on 21 October 2024 made a public announcement recording that it sought to raise $1 million from existing shareholders for the purpose of releasing $15 million;[12] and on 24 October 2024 made a public announcement in which it recorded that it had raised the necessary $1 million referred to in the 21 October 2024 announcement, but did not refer to the $15 million that was meant to be released nor to any pay down of debt.[13]
[11] Affidavit of G Cao sworn 25 February 2025 par 20.12, GC-22.
[12] Affidavit of G Cao sworn 25 February 2025 par 20.13, GC-23.
[13] Affidavit of G Cao sworn 25 February 2025 par 20.15, GC-25.
That evidence and the lacuna as to how the $1 million that was raised was used was emphasised by counsel on behalf of DD Investment. It was submitted that the lacuna gave rise to a suspicion as to the genuineness of the capital raising that had been undertaken.
Infinite Green Energy sought to raise money, including from existing shareholders, in circumstances where money owed to DD Investment, despite demand, had not been paid. Despite:
(a)demand for payment of moneys owed to DD Investment after Infinite Green Energy failed to complete its Initial Public Offering (IPO);
(b)the commencement of a proceeding to recover the moneys owed in October 2024;
(c)entry of judgement on 26 November 2024 against infinite Green Energy in favour of DD Investment in an undefended proceeding;
(d)service of a statutory demand on Infinite Green Energy in January 2025 in respect of the Judgement Debt; and
(e)the subsequent failure by Infinite Green Energy to satisfy that statutory demand,
the Judgement Debt remained unpaid. These are matters which I considered weighed in favour of the proposed appointment of provisional liquidators.
The evidence concerning the authenticity of the Deutsche Bank Swift Transfer notifications described in and attached to the affidavits made by Mr Cao was particularly troubling. I pause here to note that counsel for DD Investment made plain that it was not suggested that the impugned transfer notifications were created by Mr Gauld or Infinite Green Energy. In that regard, counsel noted the absence of information available to DD Investment to do anything other than bring that concerning information to the attention of the court.
I proceeded on the basis that the evidence of Mr Cao gave rise to a real concern that the proposed appointment was needed in the public interest, and supported a precautionary approach of appointing provisional liquidators.

The views of interested third parties

At the hearing of the application, no creditors of Infinite Green Energy, nor any other person appeared to support the application for the appointment of a provisional liquidator, or to otherwise be heard. Counsel for DD Investment informed the court that the two other plaintiffs to the proceeding which resulted in judgement delivery in favour of DD Investment (that is, the Judgement Debt) support DD Investment in this application and the appointment of provisional liquidators to Infinite Green Energy,[14] although no evidence of the same was filed.
[14] ts 25 (7 March 2025).
That said, as DD Investment had not published notice of the winding up application, it was not known whether others might have wished to be heard. Again, while I weighed these matters in the balance, they were not determinative of the application.

Urgency and balance of convenience

Counsel for DD Investment submitted that the manner in which the affairs of Infinite Green Energy had been conducted, when considered in light of all of the evidence that had been adduced, had been casual and without regard to legal requirements, so that there could be no confidence that Infinite Green Energy's affairs would be properly conducted with due regard for the interests of creditors and shareholders. As to this point, counsel for DD Investments referred the court to the decision of Beach J in Australian Securities Investments Commission v AGM Markets at [85].[15] I weighed the same in the balance.
[15] Reproduced at [44] above.
In the disposition of this matter, I also considered and weighed in the balance those matters set out in [87] of that decision, and the submission made on behalf of DD Investment that if its affidavits raise matters to which one would expect there to be some answer, and no answer is provided by Infinite Green Energy, that may raise a suspicion, and it may well be in the public interest to appoint a provisional liquidator. I also considered there to be some weight in that submission.

Undertaking proffered by Infinite Green Energy and Mr Gauld

In the end, that:
(a)Infinite Green Energy and Mr Gauld were willing and able to provide further undertakings on the same terms as the undertaking provided to the court and to DD Investment on 12 March 2025, to have effect from the date of the hearing of this application until the substantive determination of the proceeding; and
(b)counsel agreed that the substantive application to wind up Infinite Green Energy could be programmed for substantive hearing in relatively short order,
were matters which answered the question of whether there was a good reason for intervention. I was satisfied that the drastic intrusion into the affairs of Infinite Green Energy ought not be ordered as the undertakings proffered in combination with a prompt hearing of the substantive application would be adequate to preserve the status quo.
I noted that a number of concerns were raised by counsel for DD Investment with respect to the undertakings proffered. Among other things, counsel submitted that the undertaking not to deal with the assets of Infinite Green Energy:[16]
[I]s significant as a difficulty because, as far as we are aware, the only way that the defendant company will be in a position to pay down any of these debts or to demonstrate solvency is by fundraising, and on the basis of this undertaking, that's exactly what they can't do. So it's difficult to see how giving this undertaking will resolve any issue before the final hearing of the winding up application.
[16] ts 79 (14 March 2025).

That is, it was not obvious to DD Investment how this matter might be resolved (presumably by payment of its Judgement Debt) where the undertakings would prevent the raising of funds. It was submitted that this, in combination with the matters deposed to by Mr Cao, gave rise to some concern with respect to that undertaking, suggesting that it ought not necessarily be accepted without scrutiny.
Had there been any suggestion that the Deutsche Bank transfers had originated from Infinite Green Energy, or any of its officers, I would have had a real concern as to whether the proffered undertakings would be honoured. That was not however the evidence before the court.
The evidence read did not lead me to the conclusion that there was no other adequate interim measure that might be achieved to preserve the status quo, nor that, while the appointment of a provisional liquidator would be a serious intrusion into the affairs of the company, it was in the public interest that it now occur.

Conclusion and orders

For these reasons, while DD Investment had shown that it has reasonable prospects of obtaining a winding up order, in light of the undertakings proffered, I was not persuaded there was a good reason for the appointment of provisional liquidators to Infinite Green Energy.
The concerns raised on behalf of DD Investment, having regard to the urgency and balance of convenience, were sufficiently answered by the undertakings proffered, which were comprehensive in their terms and include an undertaking as to damages.
There was offered a promise to maintain the status quo. That is, to not otherwise dispose of, deal with or diminish the value of any of Infinite Green Energy's assets whatsoever, except where that disposal or dealing was in the ordinary and proper course of its business (including paying business expenses bona fide and properly incurred), paying legal fees in respect of this proceeding, and paying any amounts owing by Infinite Green Energy to DD Investment; and to not deal with or dilute any shareholdings and/or equity in Infinite Green Energy for any reason whatsoever.
I considered that discretion ought be exercised so as to not appoint provisional liquidators, and to program the application to wind up Infinite Green Energy for hearing. The orders made on 14 March 2025 are reproduced at sch C to these reasons.

Sch A - Orders made on 7 March 2025

Sch B - Orders made on 12 March 2025

Sch C - Orders made on 14 March 2025

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CR
Associate to the Honourable Justice Strk
11 APRIL 2025