Ford Kinter & Associates Pty Ltd, in the matter of Reliance Franchise Partners Pty Ltd (in liq) v Reliance Franchise Partners Pty Ltd (in liq)
[2024] FCA 868
•6 August 2024
FEDERAL COURT OF AUSTRALIA
Ford Kinter & Associates Pty Ltd, in the matter of Reliance Franchise Partners Pty Ltd (in liq) v Reliance Franchise Partners Pty Ltd (in liq) [2024] FCA 868
File number(s): VID 25 of 2024 Judgment of: ANDERSON J Date of judgment: 6 August 2024 Catchwords: PRACTICE AND PROCEDURE – application to transfer proceeding to the Supreme Court of Victoria under s 1337H of the Corporations Act 2001 (Cth) – where current proceedings relate to a creditor priority application under s 564 of the Act – where separate proceedings are progressing in the Supreme Court of Victoria for approval of the liquidators’ remuneration – where the interested parties are seeking a review of the liquidators’ remuneration in the Supreme Court of Victoria and seek for these proceedings to be transferred to be heard together – interested parties submit that proceedings should be transferred primarily due to the overlap of issues and the risk of inconsistent findings – consideration of factors relevant to the transfer of proceedings – overlap of relevant issues considered to be low – held that not in the interests of justice to transfer the proceeding – transfer application dismissed. Legislation: Corporations Act 2001 (Cth) Cases cited: Household Financial Services Pty Ltd v Chase Medical Centre Pty Ltd (1995) 18 ACSR 294
Re Ken Godfrey Pty Ltd(in liq) (1994) 14 ACSR 610
Yara Pilbara Fertilisers Pty Ltd (formerly known as Burrup Fertilisers Pty Ltd) v Oswal (No 8) [2015] FCA 49
Yeo, Armstrong and Shaw Pty Ltd (in liq) v Whiteman [2020] FCA 849
Division: General Division Registry: Victoria National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Number of paragraphs: 65 Date of hearing: 17 July 2024 Counsel for the Plaintiff: Mr M Harvey KC and Mr C Hibbard Solicitor for the Plaintiff: Hicks Oakley Chessell Williams Counsel for the Defendants: The Defendants did not appear Counsel for the Interested Parties: Mr C Brown and Ms K Wangmann Solicitors for the Interested Parties: Bennett ORDERS
VID 25 of 2024 IN THE MATTER OF RELIANCE FRANCHISE PARTNERS PTY LTD (IN LIQUIDATION) (ACN 151 750 613)
BETWEEN: FORD KINTER & ASSOCIATES PTY LTD (ACN 009 631 869)
Plaintiff
AND: RELIANCE FRANCHISE PARTNERS PTY LTD (IN LIQUIDATION) (ACN 151 750 613)
First Defendant
GIDEON ISAAC RATHNER IN HIS CAPACITY AS JOINT AND SEVERAL LIQUIDATOR OF RELIANCE FRANCHISE PARTNERS PTY LTD (IN LIQUIDATION) (ACN 151 750 613)
Second Defendant
MATTHEW BRIAN SWEENY IN HIS CAPACITY AS JOINT AND SEVERAL LIQUIDATOR OF RELIANCE FRANCHISE PARTNERS PTY LTD (IN LIQUIDATION) (ACN 151 750 613)
Third Defendant
IN THE INTERLOCUTORY APPLICATION:
BETWEEN:
FOPAR NOMINEES PTY LTD (ACN 009 472 084) and others named in the schedule
Applicants
AND:
FORD KINTER & ASSOCIATES PTY LTD (ACN 009 631 869)
Respondent
ORDER MADE BY:
ANDERSON J
DATE OF ORDER:
6 AUGUST 2024
THE COURT ORDERS THAT:
1.The interlocutory process dated 26 March 2024 filed by the Interested Parties be dismissed.
2.The Interested Parties pay the Plaintiff's costs of and incidental to the interlocutory process.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ANDERSON J
INTRODUCTION
The plaintiff (Ford Kinter) is a creditor of the first defendant (Reliance). The second and third defendants are Reliance’s Liquidators.
In this proceeding, Ford Kinter applies to this Court for an order under s 564 of the Corporations Act 2001 (Cth), giving it priority ahead of other unsecured creditors in the distribution of Reliance's assets. It seeks that order because it provided funding to the Liquidators to pursue recovery proceedings for the benefit of Reliance's creditors.
Five companies (termed the “Interested Parties”), all related parties of Reliance, have sought for this proceeding be transferred to the Supreme Court of Victoria. The Interested Parties are creditors of Reliance and include Fopar Nominees Pty Ltd and Vantage Holdings Group Pty Ltd (VHG). The Supreme Court presently has before it an application for approval of the Liquidators’ remuneration (S ECI 2023 0549) (remuneration proceeding), as well as an application in that proceeding by the Interested Parties seeking review of certain legal expenses and disbursements incurred by the Liquidators. Ford Kinter is not a party to the remuneration proceeding.
The Liquidators rely on affidavits of:
(a)Mr Doug Ford, a director of Ford Kinter, sworn 15 January 2024;
(b)Mr Gideon Rathner, one of the Liquidators, affirmed 15 December 2022; and
(c)Mr Ali Dogan, Ford Kinter's solicitor, affirmed on 9 April 2024.
The Interested Parties rely on the affidavits of Ms Gina Nofal, the Interested Parties’ solicitor, sworn on 26 March 2024, 2 May 2024, 3 May 2024, 26 June 2024, and 15 July 2024.
BACKGROUND
Ford Kinter used to operate a general insurance brokerage business. In October 2013, Ford Kinter sold Reliance its client book. Ford Kinter and Reliance entered into a deed to effect the sale, which provided for Reliance to pay consideration to Ford Kinter in three instalments. Reliance paid the first instalment but refused payment of the second and third instalments.
Ford Kinter sued Reliance in the County Court of Victoria for payment of the outstanding instalments in the amount of $932,397.95. On 14 February 2018, the County Court made orders requiring Reliance to pay Ford Kinter $932,397.95 plus interest of $253,169.21 and costs. Following an application for leave to appeal, on 1 May 2018, the Victorian Court of Appeal granted Reliance leave to appeal but dismissed that appeal with costs.
On 24 April 2018, Ford Kinter filed an application to wind up Reliance. Shortly afterwards, on 14 May 2018, Reliance appointed voluntary administrators by resolution. On 30 May 2018, on Ford Kinter’s application, the Supreme Court of Victoria made an order winding up Reliance and appointing the Liquidators as liquidators.
Mr Rathner, one of the Liquidators, deposes to the Liquidators forming a view, upon reviewing the books and records of Reliance, that it would be necessary to conduct further investigations into the circumstances in which Reliance’s business was sold, and that there were no assets in Reliance to conduct those investigations.
On 25 June 2018 and 20 August 2018, the Liquidators provided reports to creditors in respect of Reliance. Relevantly, the 20 August 2018 report stated:
5. Further Investigations
Further investigation should be undertaken, subject to funding, into claims against VHG for the recovery of the net movement of the loan accounts of $7,808,221.99 following the sales of the business and assets of the Company. Due to the sale, the Company no longer had a trading business.
By disbursing the $7,808,221.99 to related entities, the Company was not able to pay the claim of the petitioning creditor [(Ford Kinter)]. At the time of the sale the director knew or ought to have known of its debt owed to the petitioning creditor. The judgement in the proceeding between the petitioning creditor and the Company confirmed the Company's indebtedness pursuant to the contract between the parties executed 11 October 2013. Proceedings were commenced on 11 March 2015 by [Ford Kinter] for the outstanding amounts due under the Book Sale Agreement. The proceeding was on foot at the time the Company executed the agreements with PSC [relating to the sale of its business] and therefore were aware of the claim by [Ford Kinter].
6. Public Examinations
A public examination of the director of the Company and the related entities should be undertaken to establish the claims that may exist.
Funding
A review of the RATA received from the director and former administrator indicates that [Ford Kinter] is likely to be the only unrelated creditor in the winding up. Accordingly the only party that may fund the further investigations and examinations is [Ford Kinter]. Any funding agreement would require either creditor or Court approval. As it is unlikely that the related entity creditors would approve a funding agreement to enable investigations into them, the funding agreement will need to be subject to Court approval.
The funding agreement sought should be for an initial amount of $100,000. Further funding may be required.
In line with the report, Mr Ford deposes to forming the view that the only chance Ford Kinter had of recovering any of the debt owed by Reliance was for Ford Kinter to provide some funding to the Liquidators.
Ford Kinter entered into two funding agreements with the Liquidators.
The first was on 5 February 2019 under which Ford Kinter advanced the Liquidators $50,000. That amount funded the Liquidators’ public examinations, which took place over several rounds between 21 November 2019 and 19 March 2021.
In February 2021, the Liquidators received advice from counsel regarding the Liquidators’ prospects of successfully pursuing proceedings against Fopar in its own capacity and in its capacity as trustee of the Fopar Unit Trust. Privilege over the advice has been waived by the Liquidators. The advice relevantly concluded that:
In my opinion subject to resolution of the question of when it became insolvent, Reliance has properly arguable claims against Fopar to:
(a)obtain a declaration that it was not bound by the guarantee and indemnity it gave to Fopar on 20 April 2015 after the debt was transferred from Vantage Financial Services Pty Ltd to VHG, and separately
(b)recover the Fopar payments totalling $6,237,475.55 which were made by Reliance to Fopar in the period 22 February 2016 to 28 June 2017.
A copy of counsel’s advice was provided to Mr Ford on 10 February 2021.
On 22 April 2021, the Liquidators and Reliance commenced proceeding WAD88/2021 in the Federal Court against Fopar in which they sought payment of $6,237,475.55 from Fopar pursuant to s 588FF(1)(a) of the Act.
Mr Ford deposes in his affidavit that, based upon counsel’s advice, he decided that Ford Kinter should fund proceedings against Fopar. On 26 April 2021, Ford Kinter, the Liquidators and Reliance entered into a variation of the funding agreement.
Around 25 June 2021, the Liquidators’ solicitors received a letter from Fopar’s solicitors seeking security for Fopar’s costs in WAD88/2021. The amount ultimately agreed upon as security for costs was $35,000, the funds for which were provided by Ford Kinter.
In July 2021, Fopar lodged a proof of debt with the Liquidators in the amount of $5,729,847.20 which was rejected by the Liquidators. Also in July 2021, VHG lodged a proof of debt with the Liquidators in the amount of $11,879,595.44 plus interest. VHG’s proof of debt was neither admitted nor rejected at the time.
On 31 August 2021, Fopar commenced proceeding WAD199/2021 in the Federal Court against the Liquidators, challenging the Liquidators’ rejection of Fopar’s proof of debt.
On 1 August 2022, the Liquidators, Reliance, Fopar, and VHG entered into a deed of settlement. The effect of the settlement deed was that:
(a)Fopar would pay to Reliance the amount of $6,237,475.55 inclusive of interest and costs (being 100% of the amount sought in the Fopar Proceeding), to be funds in the liquidation of Reliance;
(b)the parties consented to the WAD88/2021 and WAD199/2021 proceedings being dismissed; and
(c)the Liquidators would admit the proofs of debt lodged by Fopar and VHG.
On 2 November 2022, this Court made orders authorising the Liquidators to enter into the settlement deed. Banks-Smith J’s reasons for decision are reported at Rathner v Fopar Nominees Pty Ltd, in the matter of Reliance Franchise Partners Pty Ltd (in liq) [2022] FCA 1313.
The funds of Reliance which are now available for distribution to creditors after payment of liquidation expenses are those paid by Fopar pursuant to the settlement deed.
Ford Kinter ultimately provided $240,000 in funding to the Liquidators, plus the $35,000 as security for costs. Mr Rathner deposes in his affidavit to his opinion that had the Liquidators not received funding to conduct the investigations and examinations, and then brought the proceedings against Fopar, he did not consider that there would have been any recovery for the benefit of Reliance’s creditors.
On 14 February 2023, the Liquidators commenced the remuneration proceeding, seeking approval of their remuneration. On 11 May 2023, the Interested Parties made an application in that proceeding seeking (among other things) a review of the Liquidators’ remuneration and expenses. Ford Kinter is not a party to the remuneration proceeding.
On 22 November 2023, the Supreme Court of Victoria taxed Ford Kinter’s costs of the County Court proceeding and the Court of Appeal proceeding in a total amount of $339,900.
On 14 December 2023, the Liquidators admitted Ford Kinter’s debt in the total amount of $1,552,289.56 (comprising the relevant judgment debt plus taxed costs).
On 17 January 2024, Ford Kinter commenced this proceeding, seeking payment of its debt of $1,552,289.56 in priority to payment of debts of other unsecured creditors. The Liquidators have filed a submitting notice in these proceedings and did not appear at the hearing of the transfer application.
RELEVANT PRINCIPLES
The relevant provisions for the transfer application are ss 1337H, 1337L and 1337M of the Act. Section 1337H(2) relevantly states that:
Subject to subsections (3), (4) and (5), if it appears to the transferor court that, having regard to the interests of justice, it is more appropriate for:
(a) the relevant proceeding; or
(b) an application in the relevant proceeding;
to be determined by another court that has jurisdiction in the matters for determination in the relevant proceeding or application, the transferor court may transfer the relevant proceeding or application to that other court.
Section 1337L provides that:
In deciding whether to transfer under s 1337H… a proceeding or application, a court must have regard to:
(a)the principal place of business of any body corporate concerned in the proceeding or application; and
(b)the place or places where the events that are the subject of the proceeding or application took place; and
(c)the other courts that have jurisdiction to deal with the proceeding or application.
There is no appeal from a decision under s 1337H(2) to transfer, or not to transfer, a proceeding: s 1337R of the Act.
I set out the relevant factors to be applied to a transfer application in Yeo, Armstrong and Shaw Pty Ltd (in liq) v Whiteman [2020] FCA 849 at [29]-[30], referencing the decision of McKerracher J in Yara Pilbara Fertilisers Pty Ltd (formerly known as Burrup Fertilisers Pty Ltd) v Oswal (No 8) [2015] FCA 49, in which his Honour stated (at [24]-[26]):
The leading authority which canvasses many of the issues to be taken into account is BHP Billiton Ltd v Schultz (2004) 221 CLR 400. As the case law reflects, it is necessary to conduct a balancing exercise between relevant factors that inform as to whether or not it is in the interests of justice to transfer a proceeding. The weighing of considerations, such as cost, expense and convenience, even when they conflict, is a familiar aspect of the kind of case management involved in many cross-vesting applications: BHP per Gleeson CJ, McHugh and Heydon JJ (at [19]). While BHP considered the cross-vesting regime, for practical purposes the criteria for determining whether a proceeding should be transferred are broadly consistent with the criteria for determining cross-vesting: see Dwyer v Hindal Corporate Pty Ltd (2005) 52 ACSR 335 per Debelle J (at [13]). The question is essentially practical, or in the words used in BHP, it is essentially a ‘nuts and bolts’ management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute: BHP per Gleeson CJ, McHugh and Heydon JJ (at [13]); Bankinvest AG v Seabrook (1988) 14 NSWLR 711 per Street CJ (at 713–714). The ‘interests of justice’ is an expression to be interpreted broadly: BHP per Gleeson CJ, McHugh and Heydon JJ (at [15]).
The Court should not approach the transfer question with any presumption as to where the interests of justice lie: BHP per Gleeson CJ, McHugh and Heydon JJ (at [25]). It is not a circumstance in which an applicant has an onus of persuasion analogous to an onus of proof: BHP per Gummow J (at [71]). The disposition of an application for transfer of a proceeding does not require weight to be given to the plaintiff’s choice of forum, which is essentially a neutral factor: BHP per Kirby J (at [168]) and per Gummow J (at 77).
As I noted in Commissioner of Taxation v Residence Riverside Proprietary Ltd as Trustee for the D&J Discretionary Trust and as Trustee for the D&J Investment Trust [2013] FCA 720 (at [17]), this court has previously recognised many factors as being relevant to the decision, which will vary in weight from case to case, including:
(1)the stage of the proceedings in the respective courts;
(2)the commonality or diversity of the parties;
(3)the nature of the proceedings;
(4)the commonality or diversity of issues;
(5)the risk of conflicting findings of fact or conflicting orders;
(6)a costs benefit analysis;
(7)the potential unnecessary drain on judicial and other public and private resources; and
(8)whether there is any particular judicial expertise residing in one court o[r] the other.
CONSIDERATION
For the following reasons, which consider the various factors identified above, the transfer to the Supreme Court should not be ordered.
First – stage of proceeding: This proceeding, on its face, is a straightforward application that was filed in January 2024. Ford Kinter submits that it is capable of prompt resolution by the Court in a half day hearing. The Interested Parties disagree with this estimate and consider at least two days to be a more appropriate estimate.
The source of disagreement between the parties appears to stem primarily from the Interested Parties’ position that Ford Kinter’s application for priority will require the broader conduct of Reliance’s liquidation to be closely examined, and specifically require an evaluation of the extent to which Ford Kinter’s funding actually resulted in the recovery of funds in Reliance’s liquidation. This submission is considered in further detail below when considering the commonality of issues.
The remuneration proceeding has been on foot for over a year and appears to involve a relatively high degree of complexity. The remuneration proceeding was listed for a three-day trial before Associate Justice Gobbo on 24, 25 and 30 July 2024.
Prior to the hearing of this transfer application, the trial of the remuneration proceeding was adjourned. Counsel for the Interested Parties informed me that the adjournment was partly due to the hearing of this transfer application, and partly due to the Liquidators seeking to amend their originating process in the remuneration proceeding. Although I was informed that the Liquidators and the Interested Parties would appear before Associate Justice Gobbo for a mention on 24 July 2024, it is unclear when the matter may be relisted or ultimately heard.
It was submitted by the Interested Parties that if this proceeding were to be transferred to the Supreme Court of Victoria, what was likely to be a four-day hearing would be pushed out to five days.
Counsel for the Interested Parties also submitted that the remuneration proceeding was more advanced than this proceeding, and that it would be ready for trial before this proceeding. Counsel for Ford Kinter, in contrast, submitted that from Ford Kinter’s perspective, it had finalised and filed its evidence, and was otherwise ready for this proceeding to proceed to trial.
On its face, this proceeding is a straightforward application (despite the Interested Parties’ submissions) that should be capable of being considered with relative swiftness. Despite the Interested Parties’ submissions that this proceeding is in its relative infancy, it is not apparent what impact the transfer of this proceeding would have on the conduct of the remuneration proceeding, or how the remuneration proceeding will progress moving forward.
Second – commonality or diversity of the parties: Ford Kinter was briefly involved in the remuneration proceeding, as a non-party, in order to defend a claim for legal professional privilege where the Liquidators were ordered to produce documents to the Interested Parties. It otherwise has not been involved in the remuneration proceeding.
Naturally, as was accepted by counsel for the Interested Parties, parts of the remuneration proceeding will have no relevance to Ford Kinter. It is unfavourable to transfer these proceedings in circumstances where Ford Kinter would become entangled in a five-day trial, in which a number of the issues raised will have little relevance to Ford Kinter.
Third – nature of the proceedings: Both proceedings relate to the liquidation of Reliance. However, I accept the plaintiff’s submission that the nature of each proceeding is independent. Whether or not Ford Kinter is successful in taking priority ahead of other unsecured creditors is not relevant to whether or not the Liquidator’s remuneration is approved in the Supreme Court proceeding. Similarly, whether or not the Liquidators’ remuneration is approved will not be materially relevant to whether priority is awarded to Ford Kinter.
Fourth – commonality or diversity of issues: As mentioned above, the Interested Parties submit that there is an overlap of issues and a risk of inconsistent findings between this proceeding and the remuneration proceeding and for that reason, this proceeding should be transferred to the Supreme Court of Victoria for the matters to be heard together.
The Interested Parties submit that it is well established that the exercise of the power under s 564 of the Act involves a comprehensive inquiry into the totality of the circumstances in the liquidation, referring to the decision of Brownie J in Household Financial Services Pty Ltd v Chase Medical Centre Pty Ltd (1995) 18 ACSR 294 at [296]-[297] (HFS).
As part of this inquiry, the Interested Parties submit that the conduct of the Liquidators is relevant to the Court’s discretion under s 564 of the Act. The Interested Parties submit that the Court cannot exercise its power under s 564 in recasting the order of priorities under s 556 of the Act without understanding the order of priorities and the surplus assets available to unsecured creditors.
The Interested Parties submit that the proper exercise of the power under s 564 of the Act in this proceeding will necessarily involve consideration of issues which are also the subject of the remuneration proceedings, namely:
(a)consideration of whether the whole or part of Ford Kinter’s funding totalling $240,000 was made in relation to expenses properly incurred by the Liquidators in preserving, realising, or getting in property of Reliance under s 556(1)(a) of the Act; and
(b)consideration of whether Ford Kinter should be paid its debt in priority to other unsecured creditors in light of the whole circumstances, including the conduct of Ford Kinter and the Liquidators, and the net property available to meet the claims of unsecured creditors after payment of the Liquidators’ expenses and remuneration claimed by the Liquidators in the remuneration proceeding.
In the remuneration proceeding, the Interested Parties also challenged the legal costs incurred by the Liquidators for invoices issued by their solicitors.
The Interested Parties submit that in both this proceeding and the remuneration proceeding, it will be necessary for the courts to consider:
(a)the relationship between the Liquidators and Ford Kinter;
(b)the relationship between the Liquidators and the solicitors for Ford Kinter;
(c)the conduct of the Liquidators including their conduct in relation to public examinations and the issue of the proceedings against Fopar (WAD 88/2021); and
(d)the use and nature of the funding provided by Ford Kinter to the Liquidators.
The Interested Parties refer to several matters which have been raised in the remuneration proceeding, and which they submit are relevant to determining whether the work funded by Ford Kinter was of any benefit to the creditors, and therefore relevant to this proceeding. These include:
(a)that almost half of the funding provided by Ford Kinter was used for public examinations, which the Interested Parties submit had little apparent benefit to Reliance’s creditors or otherwise did not enhance the Liquidators’ claim against Fopar;
(b)the “close relationship” between the Liquidators and Ford Kinter, which the Interested Parties submit indicates that the Liquidators prioritised the interests of Ford Kinter at the expense of other unsecured creditors; and
(c)expert evidence in the remuneration proceeding that a “significant amount” of the Liquidators’ costs were not necessary or reasonable.
The Interested Parties therefore submit that it is in the interests of justice to transfer the proceedings to the Supreme Court of Victoria to avoid the expense of giving evidence twice on the same topics, and to avoid any conflicting findings across the different courts.
I do not accept the Interested Parties’ submissions as to the scope of the inquiry to be undertaken by the Court in determining whether to exercise its discretion under s 564 of the Act. Section 564 relevantly states:
Where in any winding up:
(a)property has been recovered under an indemnity for costs of litigation given by certain creditors, or has been protected or preserved by the payment of money or the giving of indemnity by creditors; or
(b)expenses in relation to which a creditor has indemnified a liquidator have been recovered;
the Court may make such orders, as it deems just with respect to the distribution of that property and the amount of those expenses so recovered with a view to giving those creditors an advantage over others in consideration of the risk assumed by them.
Section 564 of the Act reposes a discretion in the Court that, provided the circumstances of either s 564(a) or (b) arise, the Court may determine whether to advantage a creditor over one or more creditors and the sum involved: see Tolcher v National Australia Bank (2004) 182 FLR 419 at [35]-[36] (Barrett J).
The discretion under s 564 of the Act must be exercised with a view to giving the indemnifying creditor an advantage over other creditors in consideration of the risk assumed by the indemnifying creditor. The discretion 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: Re Ken Godfrey Pty Ltd(in liq) (1994) 14 ACSR 610 at 612 (Hayne J); HFS at 297. It is in this context that the Court typically takes into account the following factors which were identified by Brownie J in HFS at 296-297:
(a)the risk taken by the indemnifying creditor;
(b)the sum recovered;
(c)the extent to which other creditors failed to provide an indemnity;
(d)the proportion between the debt of the indemnifying creditor and the debts owed to other creditors of equal rank;
(e)the public interest in encouraging creditors to provide indemnities so as to enable assets to be recovered; and
(f)the totality of the circumstances.
The expression “totality of the circumstances”, properly understood in the context of the discretion in s 564 of the Act, does not mean each and every aspect of the totality of the circumstances of the liquidation.
While the conduct of the Liquidators is not irrelevant to the Court’s exercise of discretion under s 564, it will be a rare case where such conduct is significant, let alone determinative, having regard to the factors commonly considered by the Court and the nature of the discretion.
I do not accept the Interested Parties’ submission that there exists an overlap of issues between this proceeding and the remuneration proceeding such as to warrant the transfer of this proceeding to the Supreme Court of Victoria. I do not accept that any challenges which the Interested Parties may make to the quantum of the Liquidators’ remuneration which is the subject of the remuneration proceeding will be sufficiently relevant to the matters which this Court must consider in determining the exercise of its discretion under s 564 of the Act.
I also reject the Interested Parties’ submission that the “close relationship” between the Liquidators and Ford Kinter is a relevant matter which must be examined in the exercise of the Court’s discretion under s 564 of the Act.
While the Liquidators’ conduct may be relevant to issues which arise under the remuneration proceeding, I am not satisfied that the Liquidators’ conduct could be said to be sufficiently relevant to Ford Kinter’s application made in this proceeding under s 564 of the Act. To the extent the Liquidators did not incur remuneration and expenses properly, I am not satisfied that it is a matter which will sufficiently affect the priority of creditors.
Fifth – the risk of conflicting findings of fact or conflicting orders: The Interested Parties submit that transfer will “guard against the risk” of two courts determining the same or similar factual issues. For the reasons given above, I am not satisfied that there exists the possibility of conflicting findings of fact or conflicting orders as I do not accept that there is a relevant overlap between the issues in the remuneration proceeding and issues in this proceeding.
Sixth – costs benefit analysis: I am not satisfied that transferring this proceeding to the Supreme Court of Victoria will result in a cost saving or a better use of judicial resources. The Interested Parties, in their submissions, frankly conceded that the Supreme Court proceeding would likely extend to five sitting days (from its current estimate of four days) if this proceeding was transferred. As best I am able to assess the time it will take to conduct the trial of this proceeding, I would estimate that it would take not more than one day. As discussed above, in these circumstances, to require Ford Kinter to participate in a trial in the Supreme Court of Victoria that may last five days as opposed to having this proceeding determined within one day of hearing is to place an additional cost burden upon Ford Kinter. This weighs against transfer of this proceeding.
Seventh – the potential unnecessary drain on judicial and other public and private resources: Transfer of this proceeding to the Supreme Court may result in imposing a greater costs burden upon Ford Kinter than if the transfer application was refused.
In relation to the factors identified under s 1337L of the Act, it is not contested that the Supreme Court of Victoria has jurisdiction to deal with Ford Kinter’s application for priority. Ford Kinter and the Liquidators are both based in Victoria, while the Interested Parties are based in Western Australia. Reliance was based in Western Australia, and the liquidation appears to have been conducted primarily in Western Australia. However, I do not consider that these factors carry significant weight in favour of the Interested Parties in the context of an application to transfer the matter to the Supreme Court of Victoria.
Having taken into account and considered the factors identified in s 1337L of the Act, as well as weighing each of the above factors that are relevant to the transfer application, it is not in the interests of justice to transfer this proceeding to the Supreme Court of Victoria as it is not more appropriate for this proceeding to be determined by that court. For these reasons, the application to transfer to the Supreme Court of Victoria will be refused.
DISPOSITION
The Interested Parties’ application will be dismissed with costs.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson. Associate:
Dated: 6 August 2024
SCHEDULE OF PARTIES
VID 25 of 2024 Second Applicant
AUSTRALIAN RELIANCE PTY LTD (ACN 103 351 122)
Third Applicant
AUSTRALIAN RELIANCE GROUP PTY LTD (127 695 265)
Fourth Applicant
VANTAGE HOLDINGS GROUP PTY LTD (ACN 126 324 927)
Fifth Applicant
CAVIAR PTY LTD (ACN 634 107 967) (as absolute assignee of the debt of AR Portfolio (NSW) Pty Ltd (ACN 165 707 479))
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