Fitz Jersey Pty Ltd v Atlas Construction Group Pty Ltd (in liq)

[2022] NSWSC 394

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Fitz Jersey Pty Ltd v Atlas Construction Group Pty Ltd (in liq); Yazbek v Gleeson as Liquidator of Atlas Construction Group Pty Ltd (in liq); Fitz Jersey Pty Ltd v Gleeson as Liquidator of Atlas Construction Group Pty Ltd (in liq) [2022] NSWSC 394

Hearing dates:

25 March 2022

Date of orders:

5 April 2022

Decision date:

05 April 2022

Jurisdiction:

Equity - Technology and Construction List

Before:

Stevenson J

Decision:

Final orders, other than as to costs, to be made as set out in these reasons

Catchwords:

CORPORATIONS – remedies – where liquidator of company assigned rights to plaintiff on basis that fruits of success ultimately be paid to liquidator after payment of plaintiff’s costs – where finding earlier made that directors declared dividend in breach of
s 254T of the Corporations Act 2001 (Cth) – where finding earlier made that declaration of dividend and writing off of shareholder loan voidable transactions for purposes of s 588FF of that Act – finding made of amount due by company to the plaintiff – nature of remedies that should be awarded to plaintiff – whether remedies should extend beyond requiring directors and parties into whose hands proceeds of dividends flowed to pay plaintiff the amount found to be due by the company to the plaintiff

BUILDING AND CONSTRUCTION – further findings concerning matters not decided in primary judgment

Legislation Cited:

Conveyancing Act 1919 (NSW)

Corporations Act 2001 (Cth)

Insolvency Practice Schedule (Corporations) 2016 – Schedule 2 Corporations Act 2001 (Cth)

Cases Cited:

Fitz Jersey Pty Ltd v Atlas Construction Group Pty Ltd (in liq); Yazbek v Gleeson as Liquidator of Atlas Construction Group Pty Ltd (in liq); Fitz Jersey Pty Ltd v Atlas Construction Group Pty Ltd (in liq) [2021] NSWSC 1692

Oates v Consolidated Capital Services Ltd (2009) 76 NSWLR 69; [2009] NSWCA 183

Category:

Consequential orders

Parties:

In proceedings 2017/11963:
Fitz Jersey Pty Ltd (Plaintiff)
Atlas Construction Group Pty Ltd (in liq) (First Defendant)
Robert Yazbek (Second Defendant)
Kebzay Pty Ltd (Third Defendant)
Botany Road Project Pty Ltd (Fourth Defendant)
Scott Sweeney (Fifth Defendant)
Sweenham Pty Ltd (Sixth Defendant)
Annette Yazbek (Seventh Defendant)
Kebzay Custodian No. 2 Pty Ltd (Eighth Defendant)
Castlefield Corner Pty Ltd (Ninth Defendant)
620 Botany Road Pty Ltd (Tenth Defendant)

In proceedings 2019/305131:
Robert Yazbek (First Plaintiff)
Scott Sweeney (Second Plaintiff)
Kebzay Pty Ltd (Third Plaintiff)
Sweenham Pty Ltd (Fourth Plaintiff)
Bruce Gleeson t/as Liquidator of Atlas Construction Group Pty Ltd (in liq) (First Defendant)
Fitz Jersey Pty Ltd (Second Defendant)

In proceedings 2020/87065:
Fitz Jersey Pty Ltd C/- Economos Group Pty Ltd (Plaintiff)
Bruce Gleeson t/as Liquidator of Atlas Construction Group Pty Ltd (in liq) (First Defendant)
Robert Yazbek (Second Defendant)
Scott Sweeney (Third Defendant)

Representation:

Counsel:
M Christie SC with L Shipway, B Mostafa and M Sherman (Plaintiff)
A R R Vincent with J Adamopoulos (Second to Tenth Defendants)

Solicitors:
Eakin McCaffery Cox (Plaintiff)
Matthews Folbigg (First Defendant)
Madison Marcus (Second to Tenth Defendants)

File Number(s):

2017/11963; 2019/305131 and 2020/87065

Judgment

1. I delivered judgment in this matter on 22 December 2021. ^[1]

   1. Fitz Jersey Pty Ltd v Atlas Construction Group Pty Ltd (in liq); Yazbek v Gleeson as Liquidator of Atlas Construction Group Pty Ltd (in liq); Fitz Jersey Pty Ltd v Atlas Construction Group Pty Ltd (in liq) [2021] NSWSC 1692.

2. I invited further submissions on a number of issues. ^[2]

   2. At [1255].

3. I have now heard submissions on those, and a number of other, matters.

4. I will use the same abbreviations here as in the primary judgment.

“Slips”

5. My attention has been drawn to a slip I made at [43]. My reference in that paragraph to s 588FB should have been to s 588FDA of the Corporations Act 2001 (Cth), as my reasons from [1241] make clear.

6. There was another slip at [791]. The reference there to “Atlas” should have been to “the Directors”.

7. I will cause those matters to be corrected in the published judgment.

Atlas’s entitlement to “Other Costs”

8. I made findings as to the allowance that should be made to Fitz Jersey for “Other costs” at [884] to [890] of the primary judgment.

9. I found that these costs had been substantiated by reason of having been recorded in the Jobpac system but said, at [888], that Fitz Jersey’s closing submissions took Fitz Jersey’s case concerning other costs “no further”.

10. Mr Shipway, who appeared for Fitz Jersey, has now drawn my attention to the plaintiff’s written submissions made at the hearing to the effect that, whether or not these costs had been substantiated, there was no evidence that Atlas had been given any direction to alter the WUC in relation to these costs and that there was “no apparent correspondent in the Construction Contract at all”.

11. Mr Shipway submitted that I should make a determination of Fitz Jersey’s “primary argument”, namely that the Directors had not demonstrated an entitlement by Atlas to charge Fitz Jersey for these amounts.

12. On behalf of the Directors it was submitted that Fitz Jersey was “now impermissibly seek[ing] to reagitate this issue following the delivery of judgment by the Court”, there being no application to reopen.

13. I do not see this as a fair characterisation of what Mr Shipway was seeking to do. He was drawing my attention to the fact that I had overlooked the submissions made on behalf of Fitz Jersey about this matter.

14. During further debate on this question, Mr Vincent, who appeared for the Directors, drew my attention to the fact that at the hearing it had been submitted on behalf of the Directors that the amounts could be justified to “the extent they were incurred prior to Contract or even commencement of the construction works”; in which event they would be covered by the 2010 Development Agreement that I found to exist. ^[3]

    3. At [57]-[60].

15. However, Mr Vincent did not at the hearing develop any submission as to the “extent” to which the “other costs” were incurred prior to the Contract so as to be covered by the Development Agreement. I am not in a position, now, to make any determination about that matter.

16. As Mr Vincent did not contest Mr Shipway’s submission that there was nothing in the Contract to justify these costs, and as I have not received submissions as to the extent, if any, to which the costs were in fact incurred prior to Contract so as to be covered by the Development Agreement I am now prepared to allow Fitz Jersey the entirety of this amount.

Early Completion Bonus

17. I dealt with the question of the Early Completion Bonus at [747] to [812].

18. At [812] I concluded:

“I understand that the effect of my findings is that Atlas was entitled to an Early Completion Bonus, although I am not in a position to calculate precisely the amount of that bonus”.

19. I have now received submissions as to that question of calculation.

20. Although the debate at one point ranged more widely, the only matter now in contention in relation to that calculation is whether Atlas’ entitlement to an Extension of Time should be calculated on the basis of a five day week, that is excluding Saturdays, or a five and a half day week.

21. If the latter, Atlas was entitled to five days less Extension of Time than as opined by Mr Peter.

22. Mr Shipway accepted that this point had not been made in terms during the hearing, although he referred to an oblique reference to it in a footnote in Fitz Jersey’s submissions.

23. As the matter was not raised, directly, at the hearing I do not propose now to take it into account.

24. I understand that, on this basis, the parties are able to calculate the number of days to which Atlas was entitled to an Extension of Time.

Amount for which Fitz Jersey’s proof of debt should be admitted

25. These findings, together with those in the primary judgment, will enable the parties now to agree on the amount for which Fitz Jersey’s proof of debt in the winding up of Atlas should be admitted.

Finding as to Directors’ duties of care

The Dividends

26. At [1189] I found that in declaring and causing Atlas to pay the Dividends, the Directors breached their duties:

1. to exercise their powers bona fide and in the interests of Atlas as a whole;

2. to exercise their powers for a proper purpose;

3. not to exercise their powers to obtain a private advantage for themselves; and

4. not to permit their interests to conflict with those of Atlas.

27. I did not make findings as to whether the Directors had breached their general duties of care in causing Atlas to pay the Dividends.

28. On behalf of Fitz Jersey, Mr Mostafa invited me to do so and submitted that it necessarily followed from my findings that the Directors were also in breach of their general duty of care. However, as Mr Mostafa accepted that there would be no “remedial significance” in me making a decision about that matter, I do not propose to do so.

The Shareholder Loans

29. I find the position to be different in relation to the Shareholder Loans.

30. I concluded at [1241] to [1254] that in causing the Shareholder Loans to be written off the Directors engaged in an unreasonable director-related transaction for the purposes of s 588FDA of the Corporations Act.

31. In my opinion, it follows from my findings, particularly those at [1254], that the Directors’ actions in writing off the Shareholder Loans were also a breach of their general duty of care to Atlas.

32. I am satisfied that this finding does have "remedial significance" as, otherwise, the only relief available in relation to the Shareholder Loans would be under s 588FF of the Corporations Act.

Relief

33. The result of my findings is that, by paying the amount of the Adjudication Determination, Fitz Jersey overpaid Atlas by an amount that the parties will now be in a position to calculate but that it was in the order of $2.1 million (the “Overpayment”).

34. The fundamental matter dividing Fitz Jersey and the Directors in relation to the nature of the remedies available is whether the Directors (and the other defendants into whose hands the proceeds of the Dividend can be traced) should be ordered to pay to Fitz Jersey any amount in excess of the Overpayment.

35. In the proceedings, Fitz Jersey sought some relief on its own account (for example, its claim under s 37A of the Conveyancing Act 1919 (NSW)), and other relief as assignee of the Liquidator of Atlas (for example, its claims for relief under s 588FF of the Corporations Act and the claims for breach by the Directors of their duties to Atlas).

36. The effect of the agreement between Fitz Jersey and the Liquidator is that any funds received by Fitz Jersey by reason of its success in these proceedings is to be used:

1. first, to pay Fitz Jersey’s costs;

2. second, to pay the Liquidator’s fees, costs and expense, including expenses he has met using funds advanced to him by Fitz Jersey;

3. third, to pay creditors other than Fitz Jersey;

4. fourth, to pay Fitz Jersey the amount of the Overpayment; and

5. fifth, to the extent of any surplus, to be distributed to the shareholders of Atlas.

37. As assignee of the Liquidator, Fitz Jersey has established that the Directors were not entitled to declare and pay the Dividends, nor to write off the Shareholder Loan.

38. The Directors submitted that the result of my findings is, in effect, that the Directors were entitled to declare and cause to be paid a dividend for any amount exceeding the Overpayment.

39. I do not agree.

40. The question before me was, in substance, whether the Directors could, consistently with their duty, pay the Dividends.

41. In substance, my finding is that had the Directors complied with their duties as at 8 February 2017, they would not have permitted any dividend to be paid, including because the Directors “could not have had the requisite level of satisfaction that payment of the Dividends would not materially prejudice Atlas’s ability to pay its creditors, while there was any significant uncertainty regarding the position vis-à-vis Fitz Jersey”. ^[4] In the circumstances as they prevailed at the time, that is, in the “facts as they actually existed”,^[5] the uncertainty faced by the Directors did not allow them to cause Atlas to pay any dividends.

    4. At [1067].

    5. Oates v Consolidated Capital Services Ltd (2009) 76 NSWLR 69; [2009] NSWCA 183 at [227] (Campbell JA; Spigelman CJ and Allsop P agreeing).

42. It is not to the point to speculate whether the Directors could have declared a smaller dividend without being in breach of duty and consistently with a proper purpose, especially when the Directors did not give or call evidence as to what they, or a reasonable director in their position, could or would have done had they not acted for an improper purpose.

43. I also found, for the purposes of s 37A of the Conveyancing Act, that Atlas paid the Dividends with the intention of defrauding Fitz Jersey.

44. The Directors contended that the effect of my findings is that the payment of the Dividends was not made with an intention to defraud Fitz Jersey to the extent that the Dividends exceeded what I have found to be the Overpayment. The Directors submit that I should only declare the Dividend void up to the amount of the Overpayment.

45. Again, I do not agree.

46. My finding was that the Directors caused “the Dividends”, that is all of the Dividends, to be paid with the relevant intention. There was no evidence of any consideration given by the Directors as to what amount they thought Atlas may have been overpaid by reason of the payment of the Adjudication Determination. The Directors’ view was that “Atlas ‘was going to pay the dividend no matter what’”. ^[6]

    6. At [1088].

47. It must follow from these matters that the remedies to which Fitz Jersey is entitled, including as assignee of the Liquidator, have the effect that the entire amount of the Dividends, and the funds into which they can be traced, be paid to Fitz Jersey so that they can be dealt with in accordance with arrangements that Fitz Jersey has made with the Liquidator.

48. Had the Liquidator himself commenced these proceedings, and achieved the same success as Fitz Jersey, I cannot see how it would be open to him to agree, consistently with his obligations to the other creditors of Atlas, to recover only that portion of the Dividend as equals the Overpayment.

49. Fitz Jersey, as assignee of the Liquidator, must be in the same position.

50. It may be, by reason of the terms of the Liquidator’s assignment to Fitz Jersey,^[7] that once the Liquidator’s costs have been paid, and funds distributed to creditors, there will a distribution to the shareholders in Atlas, Kebzay and Sweenham. That is a matter for the future and does not cast light on what orders should now be made.

    7. See [36] above.

The relief to which Fitz Jersey is entitled

51. Mr Mostafa set out in detail the relief, as against Mr Yazbek, Mr Sweeney, and the defendants into whose hands the proceeds of the Dividends flowed, that, in his submission, flowed from my reasons.

52. In their written submissions, the Directors did not dispute that were Fitz Jersey’s contentions be correct as to its entitlement, including as assignee of the Liquidator, to recover the entirety of the Dividends and their proceeds, ^[8] Fitz Jersey’s formulation of the relief to which it was entitled, including as to matters of arithmetic, was also correct.

    8. As well as the Shareholder Loans.

53. For Fitz Jersey, it was accepted that if all of the orders potentially available to it were made, there would be a prospect of double or multiple recovery.

54. Accordingly, Fitz Jersey, after reciting the suite of orders to which it contended it was entitled in relation to its various causes of action, formulated the orders that it in fact sought, and incorporated into the latter various mechanisms to ensure no double or multiple recovery.

55. In their submissions, the Directors did not dispute that the orders so formulated would adequately protect against double or multiple recovery.

The suite of orders to which Fitz Jersey is entitled

56. The result is that, subject to the need to avoid double or multiple recovery, Fitz Jersey is entitled to the following orders for damages and/or equitable compensation.

57. As to the claim against the Directors in relation to the Dividends:

1. Mr Yazbek to pay damages and/or equitable compensation to Fitz Jersey (as assignee of Atlas) in the sum of $6,781,559, plus pre-judgment interest from 8 February 2017, in respect of the Dividends paid by Atlas on 8 February 2017; and

2. Mr Sweeney to pay damages and/or equitable compensation to Fitz Jersey (as assignee of Atlas) in the sum of $6,781,559, plus pre-judgment interest from 8 February 2017, in respect of the Dividends paid by Atlas on 8 February 2017.

58. As to the persons or entities who received the Dividends or the traceable proceeds thereof:

1. Botany Road Project pay equitable compensation to Fitz Jersey (as assignee of Atlas) in the sum of $6,096,584, plus pre-judgment interest from 9 February 2017, in respect of the Dividend paid by Atlas to Kebzay on 8 February 2017;

2. Sweenham to pay equitable compensation to Fitz Jersey (as assignee of Atlas) in the sum of $678,156, plus pre-judgment interest from 8 February 2017, in respect of the Dividend paid by Atlas to Sweenham on 8 February 2017;

3. Mrs Yazbek to pay equitable compensation to Fitz Jersey (as assignee of Atlas) in the sum of $3,774,207, plus pre-judgment interest from 23 April 2020, in respect of the Dividend paid by Atlas to Kebzay on 8 February 2017;

4. Kebzay Custodian No 2 to pay equitable compensation to Fitz Jersey (as assignee of Atlas) in the sum of $4,893,590, plus pre-judgment interest from 27 June 2017, in respect of the Dividend paid by Atlas to Kebzay on 8 February 2017;

5. Castlefield to pay equitable compensation to Fitz Jersey (as assignee of Atlas) in the sum of $549,080, plus pre-judgment interest on:

1. the sum of $76,457 from 30 March 2017;

2. the sum of $454,559 from 18 May 2017;

3. the sum of $18,024 from 8 June 2017;

in respect of the Dividend paid by Atlas to Sweenham on 8 February 2017; and

6. 620 Botany Road to pay, in respect of the Dividend paid by Atlas to Kebzay on 8 February 2017, equitable compensation to Fitz Jersey (as assignee of Atlas) in the sum of $5,521,065, plus pre-judgment interest, calculated by reference to the dates when it received the various sums traceable into its hands.

59. As to damages and/or equitable compensation relating to the Shareholder Loan:

1. Mr Yazbek to pay damages and/or equitable compensation to Fitz Jersey (as assignee of Atlas) in the sum of $505,213, plus pre-judgment interest on that sum from 6 February 2017, in respect of the Shareholder Loans written off by Atlas on 6 February 2017; and

2. Mr Sweeney to pay damages and/or equitable compensation to Fitz Jersey (as assignee of Atlas) in the sum of $505,213, plus pre-judgment interest on that sum from 6 February 2017, in respect of the Shareholder Loans written off by Atlas on 6 February 2017.

60. Further as to the Shareholder Loan:

1. under s 588FF(1)(c) of the Corporations Act, Kebzay to pay to Atlas $449,085, plus pre- judgment interest from 23 April 2020, in respect of the Shareholder Loan owed by Kebzay to Atlas, written off on 6 February 2017;

2. under s 588FF(1)(c) of the Corporations Act, Sweenham to pay to Atlas $6,000, plus pre-judgment interest from 23 April 2020, in respect of the Shareholder Loan owed by Sweenham to Atlas, written off on 6 February 2017;

3. under s 588FF(1)(c) of the Corporations Act, Botany Road Project to pay to Atlas $449,085, plus pre-judgment interest from 23 April 2020, in respect of the Shareholder Loan owed by Kebzay to Atlas, written off on 6 February 2017.

61. Further as to the Dividends:

1. under s 588FF(1)(c) of the Corporations Act, Mr Yazbek to pay to Atlas $129,950, plus pre-judgment interest from 23 April 2020, in respect of the Dividend paid by Atlas to Kebzay on 8 February 2017;

1. under s 588FF(1)(a) of the Corporations Act, Kebzay to pay to Atlas $6,103,403, plus pre-judgment interest from 23 April 2020, in respect of the Dividend paid by Atlas to Kebzay on 8 February 2017;

2. under s 588FF(1)(c) of the Corporations Act, Botany Road Project to pay to Atlas $6,096,584, plus pre-judgment interest from 23 April 2020, in respect of the Dividend paid by Atlas to Kebzay on 8 February 2017;

3. under s 588FF(1)(a) of the Corporations Act, Sweenham to pay to Atlas $678,156, plus pre-judgment interest from 23 April 2020, in respect of the Dividend paid by Atlas to Sweenham on 8 February 2017;

4. under s 588FF(1)(c) of the Corporations Act, Mrs Yazbek to pay to Atlas $3,774,207, plus pre-judgment interest from 23 April 2020, in respect of the Dividend paid by Atlas to Kebzay on 8 February 2017;

5. under s 588FF(1)(c) of the Corporations Act, Kebzay Custodian No 2 to pay to Atlas $4,893,590, plus pre-judgment interest from 23 April 2020, in respect of the Dividend paid by Atlas to Kebzay on 8 February 2017;

6. under s 588FF(1)(c) of the Corporations Act, Castlefield to pay to Atlas $550,951, plus pre-judgment interest from 23 April 2020, in respect of the Dividend paid by Atlas to Sweenham on 8 February 2017; and

7. under s 588FF(1)(c) of the Corporations Act, 620 Botany Road to pay to Atlas $5,521,065, plus pre-judgment interest from 23 April 2020, in respect of the Dividend paid by Atlas to Kebzay on 8 February 2017.

62. As to the claim under s 37A of the Conveyancing Act:

1. declare that payment of the Dividends by Atlas on 8 February 2017 is void under s 37A of the Conveyancing Act;

2. Kebzay to pay to Atlas the sum of $6,103,403, plus pre-judgment interest, in relation to the Dividend paid by Atlas to Kebzay on 8 February 2017;

3. Sweenham to pay to Atlas the sum of $678,156, plus pre-judgment interest from 23 April 2020, in relation to the Dividend paid by Atlas to Sweenham on 8 February 2017.

The relief sought by Fitz Jersey in proceedings 2017/11963

63. I turn now to the relief in fact sought by Fitz Jersey.

64. The Directors did not dispute that, in the event their contention that relief should be confined to the amount of the Overpayment was not accepted, Fitz Jersey’s formulation of relief that it in fact sought was appropriate; and protected adequately against possible double or multiple recovery. Nor did the Directors dispute the dates and amounts posited in the proposed orders.

65. Therefore, I propose to grant the following relief in proceedings 2017/11963:

1. Declare that the payment of the dividends by the first defendant (Atlas) on 8 February 2017 is void under s 37A of the Conveyancing Act.

2. Order that the second defendant (Mr Yazbek):

1. pay damages and/or equitable compensation to Fitz Jersey (as assignee of Atlas) in the sum of $6,781,559, plus pre-judgment interest from 8 February 2017, in respect of the dividends paid by Atlas on 8 February 2017;

2. pay damages and/or equitable compensation to Fitz Jersey (as assignee of Atlas) in the sum of $505,213, plus pre-judgment interest from 6 February 2017, in respect of the Shareholder Loans written off by Atlas on 6 February 2017.

3. Order that the third defendant (Kebzay):

1. under s 588FF(1)(a) and further to order (1) above, pay to Atlas $6,103,403, plus pre-judgment interest from 23 April 2020, in respect of the dividend paid by Atlas to Kebzay on 8 February 2017;

2. under s 588FF(1)(c), pay to Atlas $449,085, plus pre-judgment interest from 23 April 2020, in respect of the Shareholder Loan owed by Kebzay to Atlas, written off on 6 February 2017.

4. Order that the fourth defendant (Botany Road Project):

1. pay equitable compensation to Fitz Jersey (as assignee of Atlas) in the sum of $6,096,584, plus pre-judgment interest from 9 February 2017, in respect of the dividend paid by Atlas to Kebzay on 8 February 2017;

2. under s 588FF(1)(c), to pay to Atlas $449,085, plus pre-judgment interest from 23 April 2020, in respect of the Shareholder Loan owed by Kebzay to Atlas, written off on 6 February 2017.

5. Order that the fifth defendant (Mr Sweeney):

1. pay damages and/or equitable compensation to Fitz Jersey (as assignee of Atlas) in the sum of $6,781,559, plus pre-judgment interest from 8 February 2017, in respect of the dividends paid by Atlas on 8 February 2017;

2. pay damages and/or equitable compensation to Fitz Jersey (as assignee of Atlas) in the sum of $505,213, plus pre-judgment interest from 6 February 2017, in respect of the Shareholder Loans written off by Atlas on 6 February 2017.

6. Order that the sixth defendant (Sweenham):

1. pay equitable compensation to Fitz Jersey (as assignee of Atlas) in the sum of $678,156, plus pre-judgment interest from 8 February 2017, in respect of the dividend paid by Atlas to Sweenham on 8 February 2017;

2. under s 588FF(1)(c), pay to Atlas $6,000, plus pre-judgment interest from 23 April 2020, in respect of the Shareholder Loan owed by Sweenham to Atlas, written off on 6 February 2017.

7. Order that the second defendant (Mrs Yazbek) pay equitable compensation to Fitz Jersey (as assignee of Atlas) in the sum of $3,774,207, plus pre-judgment interest from 23 April 2020, in respect of the dividend paid by Atlas to Kebzay on 8 February 2017.

8. Order that the eighth defendant (Kebzay Custodian No 2) pay equitable compensation to Fitz Jersey (as assignee of Atlas) in the sum of $4,893,590, plus pre- judgment interest from 27 June 2017, in respect of the dividend paid by Atlas to Kebzay on 8 February 2017.

9. Order that the ninth defendant (Castlefield) pay equitable compensation to Fitz Jersey (as assignee of Atlas) in the sum of $549,080, plus pre-judgment interest on the sum of $76,457 from 30 March 2017, on the sum of $454,559 from 18 May 2017 and on the sum of $18,024 from 8 June 2017, in respect of the dividend paid by Atlas to Sweenham on 8 February 2017.

10. Order that the tenth defendant (620 Botany Road) pay, in respect of the dividend paid by Atlas to Kebzay on 8 February 2017, equitable compensation to Fitz Jersey (as assignee of Atlas) in the sum of $5,521,065, plus pre-judgment interest:

1. on the sum of $47,030 from 4 April 2017;

2. on the sum of $94,061 from 11 April 2017;

3. on the sum of $94,061 from 20 April 2017;

4. on the sum of $94,061 from 21 April 2017;

5. on the sum of $68,299 from 18 May 2017;

6. on the sum of $136,598 from 1 June 2017;

7. on the sum of $93,365 from 19 June 2017; and

8. on the sum of $4,893,590 from 27 June 2017.

Limits on recovery

1. Order that in respect of the dividends paid by Atlas on 8 February 2017:

1. excluding post-judgment interest, the maximum sum recoverable by Fitz Jersey (as assignee of Atlas) and Atlas is equal to the sum of the amounts in order (2)(a) above;

2. there is to be no double recovery of post-judgment interest, and that post-judgment interest may not be recovered in excess of post-judgment interest on the amount in the preceding sub-paragraph of these orders.

2. Order that in respect of the dividend paid by Atlas to Kebzay on 8 February 2017:

1. excluding post-judgment interest, the maximum sum recoverable by Fitz Jersey (as assignee of Atlas) and Atlas is the sum of $6,103,403, plus pre-judgment interest on that sum from 8 February 2017;

2. there is to be no double recovery of post-judgment interest, and that post-judgment interest may not be recovered in excess of post-judgment interest on the amount in the preceding sub-paragraph of these orders.

3. Order that in respect of the dividend paid by Atlas to Sweenham on 8 February 2017:

1. excluding post-judgment interest, the maximum sum recoverable by Fitz Jersey (as assignee of Atlas) and Atlas is equal to the sum of the amounts in order (6)(a) above;

2. there is to be no double recovery of post-judgment interest, and that post-judgment interest may not be recovered in excess of post-judgment interest on the amount in the preceding sub-paragraph of these orders.

4. Order that in respect of the Shareholder Loans written off by Atlas on 6 February 2017:

1. excluding post-judgment interest, the maximum sum recoverable by Fitz Jersey (as assignee of Atlas) and Atlas is equal to the sum of the amounts in order (2)(b) above;

2. there is to be no double recovery of post-judgment interest, and that post-judgment interest may not be recovered in excess of post-judgment interest on the amount in the preceding sub-paragraph of these orders.

5. Order that, to avoid double recovery, Fitz Jersey (as assignee of Atlas) and Atlas may not:

1. recover under order (3)(a) any amounts recovered under any of orders (4)(a), (7), (8) or (10), except insofar as:

1. the principal amount under order (3)(a) exceeds the principal amount under order (4)(a), (7), (8) or (10) as the case may be; and

2. interest is payable in respect of the amount referred to in order (15)(a)(i) above.

2. recover under order (4)(a) any amounts recovered under any of orders (7), (8) or (10), or any amounts recovered under order (3)(a) other than the amounts identified in orders (15)(a)(i) and (15)(a)(ii) above;

3. recover under orders (4)(a), (7), (8) or (10) any amount in excess of the amount in order (4)(a);

4. recover under orders (7), (8) or (10) any amount in excess of the amount in order (10);

5. recover under orders (7) and (8) any amount in excess of the amount in order (8);

6. recover under orders (3)(b) or (4)(b) any amounts recovered under the other of those orders.

6. Order that where order (15) above precludes double recovery as between any amounts, Fitz Jersey (as assignee of Atlas) and Atlas may also not make double recovery of post-judgment interest as between those amounts.

7. For the avoidance of doubt, order that the maximum recovery that:

1. may be made by Fitz Jersey (as assignee of Atlas) is equal to the sum of the amounts in order (2), plus any post-judgment interest thereon;

2. may be made by Atlas is equal to the sum of the amounts in orders (3) and (6)(b), plus any post-judgment interest thereon;

3. may be made by Fitz Jersey (as assignee of Atlas) and Atlas is equal to the sum of the amounts in order (2), plus any post-judgment interest thereon.

Relief sought by Fitz Jersey in proceedings 2019/305131 and 2020/87065

66. Fitz Jersey accepts that proceedings 2020/87065 should be dismissed.

67. As to proceedings 2019/305131, Fitz Jersey seeks orders under s 90-15(1) of the Insolvency Practice Schedule (Corporations) 2016^[9] that, in effect, its proof of debt of 21 November 2019 be admitted in an amount that reflects my findings as to the Overpayment.

    9. Schedule 2 – Corporations Act 2001 (Cth).

68. I will make orders to that effect.

Conclusion

69. The parties should now confer and agree on the precise orders needed to give effect to these reasons, including as to the quantum of pre-judgment interest.

70. I will then hear submissions as to the directions I should make to determine the question of the costs of the proceedings.

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Endnotes

Amendments

14 April 2022 - Cases cited on coversheet corrected

Decision last updated: 14 April 2022