Filsee Pty Ltd v Horne
[2014] FCCA 2269
•27 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FILSEE PTY LTD & ORS v HORNE & ANOR | [2014] FCCA 2269 |
| Catchwords: BANKRUPTCY – Application consequent upon provision of indemnity for costs of litigation to trustees by creditors – the Court’s discretion is broad and general – consideration of s.109(10) of the Bankruptcy Act 1966 (Cth) – application for distribution of 100 per cent of monies recovered acceded to. |
| Legislation: Bankruptcy Act 1966 (Cth), ss.81, 109(1)(a), 109(10) ,120, 121 Family Law Act 1975 (Cth), s.79 |
| Australia and New Zealand Banking Group Ltd v TJF EBC Pty Ltd (2006) 224 ALR 490 Re Cartco Pty Ltd (1994) 14 ACSR 357 Re Estate of Connell (decd) [2001] FCA 51 |
| First Applicant: | FILSEE PTY LTD (ACN 084 496 239) |
| Second Applicant: | GATELL PTY LTD (ACN 084 496 202) |
| Third Applicant: | KKV PTY LTD (ACN 075 355 145) |
| Fourth Applicant: | CARONVALE NO. 4 PTY LTD (ACN 074 605 897) |
| First Respondent: | STIRLING LINDLEY HORNE AS TRUSTEE OF THE BANKRUPT ESTATE OF ROBERT ANDREW TEBB |
| Second Respondent: | RAYMOND GEORGE TOLCHER AS TRUSTEE OF THE BANKRUPT ESTATE OF ROBERT ANDREW TEBB |
| File Number: | MLG 1356 of 2014 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 1 October 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 27 October 2014 |
REPRESENTATION
| Counsel for the applicants: | Mr Fary |
| Solicitors for the applicant: | Nathan Kuperholz |
| Counsel for the respondents: | Ms Angelo |
| Solicitors for the respondents: | Harris Carlson Lawyers |
ORDERS
Pursuant to s.109(10) of the Bankruptcy Act 1966 (Cth) (‘the Act’), 100 per cent of the net amount available for distribution to creditors after payment of the amounts required to be paid by s.109(1)(a) of the Act from the bankrupt estate of Robert Andrew Tebb be paid to the applicants in priority to all other creditors; and
The applicants’ costs of this application be paid from the estate of the bankrupt with the same priority as in order (1) herein.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1356 of 2014
| FILSEE PTY LTD (ACN 084 496 239) |
First Applicant
| GATELL PTY LTD (ACN 084 496 202) |
Second Applicant
| KKV PTY LTD (ACN 075 355 145) |
Third Applicant
| CARONVALE NO. 4 PTY LTD (ACN 074 605 897) |
Fourth Applicant
And
| STIRLING LINDLEY HORNE AS TRUSTEE OF THE BANKRUPT ESTATE OF ROBERT ANDREW TEBB |
First Respondent
| RAYMOND GEORGE TOLCHER AS TRUSTEE OF THE BANKRUPT ESTATE OF ROBERT ANDREW TEBB |
Second Respondent
REASONS FOR JUDGMENT
In Application filed 7 July 2014, the applicants seek the following orders:-
“1. Pursuant to s 109(10) of the Bankruptcy Act 1966 (Cth) (the “Act”), the Court make such orders as it thinks just and equitable with respect to the distribution of the net proceeds received under the Deed of Settlement and Release dated October 2013 between the Respondents, Annette Margaret Tebb and Precision Logistics Pty Ltd (after payment of the trustees remuneration and expenses and the realisation charge) with a view to giving the Applicants (indemnifying creditors) an advantage over others in consideration of the risk assumed by them.
2. The Applicants’ costs of this application be paid from the Estate of the Bankrupt in the priority fixed by section 109(1)(a) of the Act.”
The Court is satisfied as to service of the Application and supporting Affidavit on the creditors (other than the applicants) of Robert Andrew Tebb, a bankrupt. Service was effected on 8 July 2014 by post to the addresses provide by the creditors to the respondent trustees and no creditor (other than the applicants) appeared at the hearing of this matter, nor sought any orders from the Court. Neither did any one of them seek to oppose the application before the Court.
The applicants rely upon the Affidavit of Matthew Vaughan sworn on 4 July 2014.
The respondents rely upon the Affidavit of Stirling Lindley Horne sworn on 28 August 2014.
The respondents neither oppose, nor consent to the orders sought by the applicants.
Section 109(1)(a) of the Bankruptcy Act 1966 (Cth) (‘the Act’) relevantly provides:-
“(1) Subject to this Act, the trustee must, before applying the proceeds of the property of the bankrupt in making any other payments, apply those proceeds in the following order:
(a) first, in the order prescribed by the regulations, in payment of the taxed costs of the petitioning creditor and the costs, charges and expenses of the administration of the bankruptcy, including the remuneration and expenses of the trustee and the costs of any audit carried out under section 175;”
Section 109(10) of the Act relevantly provides:-
“(10) Where in any bankruptcy:
(a) property has been recovered, realized or preserved under an indemnity for costs of litigation given by a creditor or creditors; or
(b) expenses in relation to which a creditor has, or creditors have, indemnified a trustee have been recovered;
the Court may, upon the application of the trustee or a creditor, make such orders as it thinks just and equitable with respect to the distribution of that property and the amount of those expenses so recovered with a view to giving the indemnifying creditor or creditors, as the case may be, an advantage over others in consideration of the risk assumed by creditor or creditors.”
Legal authorities
The relevant authorities for a consideration of an application of this type are as set out in Submissions filed 19 September 2014 on behalf of the applicants. They are comprehensive and included in these Reasons in the following paragraphs.
The object of s.109(10) of the Act is to:-
a)encourage creditors to indemnify trustees in bankruptcy in relation to proceedings for recovery of property;[1] and
b)reward creditors who take the risks and bear the burden of litigation.[2]
[1] Re Ken Godfrey Pty Ltd (in liq) (1994) ACSR 610 at 611-613; Re Estate of Connell (decd) [2001] FCA 51; Khoury v Official Receiver as Trustee of Estate of Joe Khoury [2001] FCA 1849.
[2] Re Glenisia Investments Pty Ltd (in liq) (1996) 19 ACSR 84; Re Estate of Connell (decd) [2001] FCA 51.
The discretion is broad and general but is to be exercised having regard to the desirability, in the public interest, of encouraging creditors to indemnify trustees in relation to claims arising out of the bankruptcy.[3]
[3] Re Corke; Ex parte Official Trustee in Bankruptcy (unreported, Fed C of A, Sackville J, 15 March
1995); Re Ken Godfrey Pty Ltd (in liq) (1994) ACSR 610.
In Grandsky Pty Ltd v Orne (in his capacity as trustee for the Bankrupt Estate of Oost),[4] Jagot J stated:-
[4] [2014] FCA 119.
“[8] Section 109(10) has been the subject of judicial consideration in numerous cases.
[9] In Re Corke, Ex Parte Official Trustee in Bankruptcy [1996] FCA 156 Sackville J said at [15]:
The authorities suggest that the discretion conferred by s 109(10) is broad and general in character, but is to be exercised having regard to the desirability, in the public interest, of encouraging creditors to indemnify the Official Trustee in relation to claims arising out of the bankruptcy: Re Ken Godfrey Pty Ltd (1994) 12 ACLC 1071 (S Ct Vic/Hayne J.), at 1072–1073. Appropriate recognition should be given to the risk undertaken by the indemnifying creditor, even if the creditor has been fully reimbursed: Re Kyra Nominees Pty Ltd (in liq.) (1987) 5 ACLC 811 (S Ct WA/Franklyn J), at 819. In Household Financial Services Pty Ltd v Chase Medical Centre Pty Ltd (1995) 18 ACSR 294 (S Ct NSW/Brownie J.), a case under s 564 of the Corporations Law, Brownie J stated the general principles this way (at 296–297):
The last words of s 564 provide for, and the authorities accent the need to assess the risk run by the indemnifying creditors, for whose benefit an application is made, but the authorities show that it is also appropriate to look to the sum recovered (or the value of the property recovered), the failure of other creditors to provide the indemnity, the proportions between the debts of the indemnifying creditors and the other debts, the public interest in encouraging creditors to provide indemnities so as to enable assets to be recovered, and, generally, the totality of the circumstances; and there has been a tendency in recent times to adopt a more liberal approach, in favour of indemnifying creditors.
[10] In Re the Estate of Lawrence Robert Connell (dec’d) [2001] FCA 51 Carr J made the same points at [24] and at [25] said:
As Wilcox J observed in Re Steven Abrahams (Federal Court of Australia, unreported 4 September 1990, Judgment No 542/90) at 4, the determination of what is a proper proportion to be awarded to the indemnifying creditors is very much a matter of impression.
[11] In Official Trustee in Bankruptcy as Trustee of the Bankrupt Estate of Rodolfo Severio Pastro v Pastro [2004] FCA 713 Mansfield J at [20] and [21] said:
20 In my view, in the circumstances the Court has power to order that the whole amount recovered by the litigation be distributed amongst the creditors who had indemnified the trustee against the costs of the litigation. The discretion under s 109(10) is unqualified. In Re the Estate of Lawrence Robert Connell (dec’d) [2001] FCA 51, Carr J at [24] described the policy behind s 109(10) as being at least twofold: to encourage creditors to indemnify trustees in bankruptcy who wish to pursue claims in the administration of bankrupt estates, and to reward creditors who bear the burden and take the risks of litigation. See eg Re Glenisia Investments Pty Ltd (in liq) (1996) 14 ACLC 237. It is in the public interest that the property of a bankrupt should be available to the creditors of the bankrupt, including where the property of the bankrupt may be secured only through litigation. There is no presumption that the indemnity creditors should not receive the full benefit of the net proceeds of the property or expenses recovered under an indemnity for costs of litigation: see the remarks of Barrett J in Re Home Corp Projects [2002] NSWSC 879 … at [12]. That case concerned the provisions analogous to s 109(10) of the Act in s 564 of the Corporations Act 2001 (Cth).
21 The way in which the discretion should be exercised is of course dependent upon the facts of the particular case, and is often ultimately a matter of impression: see per Paine J in Re Bavistock (1946) 14 ABC 30 at 32.
[12] In Woodgate, in the Matter of Eaton (a Bankrupt) [2010] FCA 550 (Woodgate) Nicholas J at [5] identified that:
There are a number of matters that are of significance in an application of this kind which are weighed up when deciding whether to make an order under s 109(10). These include:
• the risk run, and costs incurred, by the indemnifying creditor;
• the complexity of the proceedings in respect of which the indemnity is given;
• the sum recovered (or the value of the property recovered);
• the opportunity afforded to other creditors to provide indemnity;
• the failure of other creditors to provide indemnity;
• the proportions between the debts of the indemnifying creditor and the other debts;
• the opposition or support of other creditors to the application for priority; and
• the public interest in encouraging creditors to provide indemnities so as to enable assets to be recovered.
[13] Nicholas J also said at [12]:
The authorities indicate that there is no presumption that the indemnifying creditor should not receive the full benefit of the net proceeds of the property or expenses recovered under an indemnity for costs of litigation: Official Trustee in Bankruptcy as Trustee of The Estate of Rodolfo Servio Pastro v Pastro [2004] FCA 713 (Pastro) at [20]. They also indicate that the question is very much a matter of impression: see Re the Estate of Lawrence Connell (dec’d) [2001] FCA 51 at [25]; Pastro at [21].
[14] In Jarbin Pty Ltd v Clutha Ltd (in liq) (2004) 180 FLR 393 ; [2004] NSWSC 28 Campbell J dealt with an application by a creditor under s 564 of the Corporations Law 1995 (NSW) and said at [69]:
I respectfully doubt that there is any proper basis for concluding that there has been a tendency in recent times to adopt a more liberal approach in favour of indemnifying creditors. There are many cases, dating from the earliest days of the section, where the power conferred by the section has been exercised so as to give the indemnifying creditors the whole of the net proceeds of recovery.
[15] On the other hand, as Campbell J also said at [70]:
As well though, even in situations where an indemnifying creditor did not receive the full amount of its debt, there have been over the years many cases which resulted in an indemnifying creditor receiving less (and sometimes substantially less) than the full amount recovered.
[16] And at [71] Campbell J noted that:
There are various judicial statements to the effect that allowing an indemnifying creditor 100 percent of the amount recovered will (or should) be rare.
[17] His Honour reconciled the apparent inconsistencies at [71] by making this point:
Given that a trial judge’s role in an application under s 564 is to apply the appropriate test to the facts of the case before him or her, these statements should not be taken (as an over-literal reading of them might suggest) as being a statement of the statistical frequency with which awards of 100 percent of the amount recovered will be made. Rather, they should be taken as a recognition of the very significant evidentiary and persuasive onus which needs to be discharged before an award of 100 percent of the amount recovered will be appropriate.
[18] Campbell J made another point at [75] which is worth noting, although not engaged on the facts of the present case given that the debt owed to Grandsky exceeds the amount available for distribution:
Given that the power under s 564 is one to alter the prima facie equality of unsecured creditors within their various classes, and that the structure within which s 564 operates is one of a regime for distribution of the assets of a company in liquidation among those entitled, it is hard to see how a proper exercise of the power under s 564 could ever result in a creditor receiving more than 100% of the debt owed to him, together with such interest as the Corporations Law allows.
[19] At [95], when dealing with the issue of risk, his Honour noted that:
The time at which the extent of the risk undertaken should be assessed is “at the time a commitment is first made to fund that litigation and thereafter throughout the funding period”: Re Russell (in his capacity as official liquidator of Parkston Ltd (in liq) (2000) 35 ACSR 114 at 123 ; [2000] NSWSC 764 at [30], per Santow J.
[20] Campbell J assessed the risk by reference to the return on an equivalently risky investment the funding creditor could have made at the time and various deals entered into by litigation funders on litigation of different risk profiles (the funder’s recovery ranging from 12% to 75%).”
In Re Ken Godfrey Pty Ltd (in liq) (1994),[5] Hayne J stated:-
“the discretion covered by s 450 is a broad and general discretion and one that is to be exercised having regard to the desirability in the public interest of encouraging creditors to indemnify liquidators who desire to pursue claims in the winding up of companies.”
The relevant factors for the Court’s consideration thus include: the extent of the risk run by the indemnifying creditors; the amount recovered; the failure of other creditors to provide the indemnity; the proportions between the debts of the indemnifying and the debts of the non-indemnifying creditors; the public interest in encouraging creditors to provide indemnities so as to enable assets to be recovered; and the totality of the circumstances and other matters in determining what preferential rate is given.[6]
[6] Re Bavistock (1946) 14 ABC 30; Re Ivermee; Ex parte Official Receiver (1974) 36 FLR 187; Re
In Household Financial Services v Chase Medical Centre Pty Ltd,[7] Brownie J noted that there has been a tendency to adopt a more liberal approach in favour of indemnifying creditors.
[7](1995) 18 ACSR 294.
Consideration
On 16 February 2011, Burchardt FM (as His Honour then was) made a Sequestration Order against the estate of Robert Andrew Tebb (‘the bankrupt’). The respondents were appointed as joint and several trustees of the bankrupt estate of Mr Tebb.
The applicants (herein after referred to as ‘indemnifying creditors’) are unsecured creditors of the estate of the bankrupt in the sum of $1,146,486.72. The basis of the indemnifying creditors’ claim was a judgment debt made following a trial against the bankrupt in the County Court of Victoria that was affirmed following an unsuccessful appeal by the bankrupt.
The applicants lodged a Proof of Debt dated 29 January 2013 in the amount of $1,146,486.72. Such Proof of Debt was accepted by the trustees.
The bankrupt signed a Statement of Affairs on 7 March 2011. That Statement of Affairs and the respondent trustees investigations revealed, amongst other things, the following:-
a)the bankrupt was the joint registered proprietor of seven properties with his wife, Ms Annette Tebb in New South Wales;
b)the bankrupt was a registered proprietor of three properties which were sold or transferred prior to 16 February 2011 in New South Wales;
c)between 18 July 2009 and 16 February 2011, the bankrupt transferred sixteen vehicles to another entity;
d)the bankrupt had been a director of eighteen companies and held shares in four companies; and
e)the bankrupt and Mrs Tebb held shares in two companies on trust for their children.
Shortly after the Sequestration Order was made, the applicants gave the respondent trustees an indemnity for the costs of any litigation undertaken by them to recover funds in the bankrupt estate. Mr Vaughan, the director of Filsee Pty Ltd and Gatell Pty Ltd, met with Mr Horne, one of the bankrupt’s trustees. Mr Vaughan told Mr Horne that because he and his brother, Mr Ken Vaughan, through their respective entities KKV Pty Ltd, Caronvale No. 4 Pty Ltd, Filsee Pty Ltd and Gatell Pty Ltd (‘the indemnifying creditors) had been prosecuting claims against the bankrupt for over four years, and had expended well over $150,000 in that prosecution, coupled with the fact that the indemnifying creditors were by far the bankrupt’s largest creditors, they were unwilling to allow the bankrupt’s affairs not to be investigated because of a lack of funding or for any litigation that might be necessary to be embarked upon not to be so embarked upon also because of a lack of funding. Mr Vaughan told Mr Horne that the indemnifying creditors were prepared to take the risk and would be prepared to fund and pay (on an unlimited basis) all legal costs, charges and expenses in relation to the activities initially involving an examination of the bankrupt’s affairs including those in relation to Mrs Tebb, and all of the companies with which Mr and Mrs Tebb were associated. Mr Vaughan also told Mr Horne, in response to his query to Mr Vaughan in that regard, that the indemnifying creditors would indemnify him for any costs that might be awarded against him in relation to such activity. Funds have been recovered. The applicants have been reimbursed out of the bankrupt estate their legal costs and disbursements in respect of the litigation which ensued as detailed hereafter and in the sum of $125,397.28. The applicants hereafter will be reimbursed the costs of the Creditor’s Petition, they being the petitioning creditors.
If the applicants are successful in this application and receive 100 per cent of the estimated funds available for distribution, then they will recover only approximately 76.26 per cent of their claim. If no adjustment is made to them, they will recover approximately 51.5 per cent of such funds (this quantification derives from the Report to Creditors dated 7 May 2014).
The principle issue for the Court to consider is what percentage recovery of funds available for distribution should be awarded to the applicants for the level of risk they solely, amongst the creditors, assumed, in high cost litigation aimed at the recovery of funds.
The trustees brought and/or participated in the following proceedings as a direct result of the indemnity provided by the applicants:-
a)public examinations of the bankrupt and his wife, Mrs Tebb, pursuant to s.81 of the Act on 21 June 2012 and 23 July 2012. The summonses included extensive requests for the bankrupt and his wife to produce documents which were relevant to the bankrupt and his associated entities;
b)Federal Court of Australia proceedings against Mrs Tebb, commenced by the trustees in April 2013 pursuant to various sections of the Act, as well as s.44 of the Partnership Act 1892 (NSW) and ss.21 and 32 of the Federal Court of Australia Act 1976 (Cth) (‘the Federal Court of Australia proceedings’). Such proceedings were transferred to the Family Court of Australia at Sydney under file number SYC 2480 of 2013, following a transfer application filed by Mrs Tebb; and
c)a separate proceeding commenced by Mrs Tebb against the trustees on 7 May 2013 in the Family Court of Australia in Sydney, seeking financial orders in relation to sale or alteration of property interests concerning a number of properties (‘the Family Court of Australia proceedings’).
The trustees were also involved in a Deed of Forbearance entered into on 30 January 2013 with St George Bank (the mortgagee in relation to several of the properties mortgaged by the bankrupt and Mrs Tebb), the bankrupt and Mrs Tebb. Subsequent default by the bankrupt and Mrs Tebb led to a demand being issued by St George Bank requiring further activity by the trustees.
The Court accepts the unchallenged evidence of Mr Horne as set out in paragraph 27 of his Affidavit sworn 28 August 2014 that:-
“As at the commencement of the administration of the bankrupt estate, Mr Tolcher and I had not been indemnified by creditors in respect of remuneration or disbursements. But for the indemnities provided by the Indemnifying Creditors, the bankrupt estate would not have had sufficient funds available for Mr Tolcher and I to undertake the investigations which took place, to conduct the examinations of the Bankrupt and Mrs Tebb on oath, or to commence and defend the proceedings which have resulted in the recovery of assets in the bankrupt estate.”
Matters raised by Mrs Tebb and dealt with in the Federal Court of Australia proceedings and Family Court of Australia proceedings included:-
a)whether properties registered in the name of the bankrupt and Mrs Tebb were held as assets of a purported partnership;
b)whether the adjustments Mrs Tebb asserted should be made to the partnership’s accounts were valid, proper, and supported by evidence;
c)whether transfers of the bankrupt’s interests in Precision Logistics Pty Ltd should be set aside;
d)whether the bankrupt’s transfers of his interests in the property at 146 Georges River Road Kentlyn in the State of New South Wales should be set aside;
e)whether Mrs Tebb’s claim against the bankrupt estate was valid;
f)whether Mrs Tebb should be allowed to file a further proof of debt out of time, following her withdrawal of an earlier amended proof of debt;
g)whether the Family Court of Australia should provide Mrs Tebb with ownership of various assets, including the Frost Road property, as part of a property settlement with the bankrupt.
In late 2013, there were extensive negotiations between the trustees and Mrs Tebb’s solicitors which eventually resulted in a Deed of Settlement and Release being executed. Pursuant to the terms of settlement, the trustees received :-
a)$100,000 from Mrs Tebb;
b)a transfer of Mrs Tebb’s 50 per cent interest in the property located at 20 Frost Road Campbelltown in the State of New South Wales (‘the Frost Road property’). Settlement of the sale of this property on 4 June 2014 resulted in an amount of $1,704,939.69 being received into the bankrupt’s estate;
c)the withdrawal of Precision Logistics Pty Ltd’s Proof of Debt for approximately $85,000; and
d)payment by Mrs Tebb to the Australian Taxation Office of $378,466.64.
Both the bankrupt and Mrs Tebb were uncooperative with the trustees’ investigations. This led to them being examined on oath and compelled to produce documents that eventually assisted in the recovery of property, cash and other benefits to creditors. The affidavit material and documents filed in this Court, the Federal Court of Australia and the Family Court of Australia evidence the fact that before the courts were complex issues of fact and law. The Family Court of Australia proceedings increased the indemnifying creditors risk substantially because a successful application by the trustees in the Federal Court of Australia proceedings could have been offset or rendered somewhat nugatory, depending on the outcome of the Family Court of Australia proceedings. Although the matter was settled, the indemnifying creditors were exposed to substantial risk of no or little recovery, and a substantial amount of costs, including a potential adverse costs order.
The recovery proceedings, which occurred as a consequence of the indemnity given by the applicants, resulted in a settlement that led to an amount of $1,704,939.69 being recovered by the bankrupt estate. The applicants are the largest unsecured creditors of the bankrupt estate. The bankrupt’s examinable affairs were extremely complex and the proceedings which followed involved very substantial risks to the applicants. The various proceedings involved insolvency in matters of partnership law. They involved bankruptcy law, including the doctrine of relation back and the law relating to ss.120 and 121 of the Act, because prior to the bankruptcy of the bankrupt, steps were taken by he and his wide, to transfer assets out of the bankrupt’s name. Property adjustment proceedings between spouses were also instituted where Mrs Tebb sought orders under s.79 of the Family Law Act 1975 (Cth). Mrs Tebb alleged a partnership in relation to she and the bankrupt’s joint ownership of a number of properties and the various proceedings were protracted, with high costs exposure to the applicants, including adverse costs orders. The totality of the litigation was significant and the element of risk undertaken by the trustees high.
In the exercise of its discretion, a just and equitable outcome and one which supports the public interest on the facts of this case, is to make orders as sought by the applicants. They have satisfied that very significant evidentiary and persuasive burden upon them in any application of this type. They solely undertook the very high risk, and should be rewarded accordingly.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 27 October 2014
[5] 14 ACSR 610 at 3.
Medical Centre Pty Ltd (in liq) (1995) 18 ACSR 294; Re Glenisia Investments Pty
Ltd (in liq) (1995) 19 ACSR 84; State Bank of NSW v Brown (2001) 38 ACSR 715; Kugel, Re; Charben Haulage Pty Ltd (in liq) [2011] FCA 834; Re Passmore; Ex parte Official Receiver (in liq) (1984) 56 ALR 181 at 186; Re Kyra Nominees Pty Ltd (in liq) (1987) 11 ACLR 767; Re Ken Godfrey Pty Ltd (in liq) (1994) 14 ACSR 610; Australia and New Zealand Banking Group Ltd v TJF EBC Pty Ltd (2006) 224 ALR 490.
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