Fourteen Consulting Services Pty Ltd (in liq) v A.O.B Holding Pty Ltd (in liq) (No 5)

[2024] FCA 1029

FEDERAL COURT OF AUSTRALIA

Fourteen Consulting Services Pty Ltd (in liq) v A.O.B Holding Pty Ltd (in liq) (No 5) [2024] FCA 1029  

File number(s):

NSD 331 of 2023

Judgment of:

HALLEY J

Date of judgment:

3 September 2024

Date of publication of reasons:

4 September 2024

Catchwords:

CORPORATIONS – application for company to be added as a defendant to proceedings, liquidator to be appointed to company, revised pooling order pursuant to s 579E of the Corporations Act 2001 (Cth) (Corporations Act) to join company to pooled group, leave to enter into agreements pursuant to s 477(2B) of the Corporations Act and other related orders – scheme to avoid payment of statutory liabilities – satisfied liquidator should be appointed to company – preconditions for making of pooling order satisfied – leave given to enter into agreements pursuant to s 477(2B) of the Corporations Act – orders made

Legislation:

Corporations Act 2001 (Cth) ss 477, 499, 553AB, 579E, 579F and 579K

Federal Court (Corporations) Rules 2000 (Cth) r 7.2

Federal Court Rules 2011 (Cth) r 9.05

Cases cited:

Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher & Barnet (as liquidators of Octaviar Administration Pty Ltd (in Liq) (2015) 89 NSWLR 110; [2015] NSWCA 85

Fourteen Consulting Services Pty Ltd (in liquidation) v A.O.B Holding Pty Ltd (in liquidation) (No 2) [2023] FCA 1684

Fourteen Consulting Services Pty Ltd (in liq) v A.O.B. Holdings Pty Ltd [2023] FCA 704

In the matter of Kirby Street (Holding) Pty Limited (2011) 87 ACSR 84; [2011] NSWSC 1536

In the matter of Lake View Estates Pty Ltd (in liquidation) (ACN 108 590 129) [2015] NSWSC 2056

In the matter of Tumut River Orchard Management Limited (in liq) ABN 003 501 611 [2011] NSWSC 915

Re Spedley Securities Ltd (in liq) (1992) 9 ACSR 83

Division:

General Division

Registry:

New South Wales

National Practice Area:

Commercial and Corporations

Sub-area:

Corporations and Corporate Insolvency

Number of paragraphs:

51

Date of hearing:

3 September 2024

Counsel for the Plaintiffs:

Mr R W Notley and Mr J Nolan

Solicitor for the Plaintiffs:

ERA Legal

ORDERS

NSD 331 of 2023

IN THE MATTER OF FOURTEEN CONSULTING SERVICES PTY LTD (IN LIQUIDATION) (ACN 626 923 297) & ORS

BETWEEN:

FOURTEEN CONSULTING SERVICES PTY LTD (IN LIQUIDATION) (ACN 626 923 297)

First Plaintiff

BOON BUSINESS CONSULTANTS PTY LTD (IN LIQUIDATION) (ACN 634 124 315)

Second Plaintiff

AND:

A.O.B HOLDING PTY LTD (IN LIQUIDATION) ACN 632 922 046

Second Defendant

HENPARK HOLDINGS PTY LTD (IN LIQUIDATION) (ACN 624 401 029)
Third Defendant

NPC ADVISORY (SD) PTY LIMITED (IN LIQUIDATION) (ACN 643 357 224) (and others named in the Schedule)

Fourth Defendant

ORDER MADE BY:	HALLEY J
DATE OF ORDER:	3 SEPTEMBER 2024

THE COURT ORDERS THAT:

Joinder

1.Leave be granted to the plaintiffs to file in Court an amended interlocutory application in the form emailed to the Associate to Halley J on 2 September 2024.

2.Pursuant to r 9.05 of the Federal Court Rules 2011 (Cth), Roseville Construction Services Pty Ltd (in liquidation) (ACN 601 107 117) (Roseville) be joined as a defendant to these proceedings.

Appointment of Darren Vardy as liquidator of Roseville

3.Pursuant to s 499(3) of the Corporations Act 2001 (Cth) (Corporations Act) and r 7.2 of the Federal Court (Corporations) Rules 2000 (Cth), Darren John Vardy be appointed liquidator of Roseville.

Pooling

4.Pursuant to s 579E(1) of the Corporations Act, Roseville is to be added to the NPC Pooled Group of companies as created by and defined in Order 47 of the orders made by Halley J on 20 December 2023 in these proceedings (NPC Pooled Group) for the purposes of s 579E of the Corporations Act.

Suppression Orders

5.Pursuant to s 37AF(1)(b) and s 37AJ of the Federal Court of Australia Act 1976 (Cth) (FCA Act), for a period of 3 years or until further order of the Court, the information in “Confidential Exhibit DV-15” and “Confidential Exhibit DV-16” exhibited to the affidavit of Darren John Vardy affirmed on 16 August 2024 (Vardy affidavit) is to be kept confidential and not published or otherwise disclosed to any person other than Mr Vardy, Mr Vardy’s legal representatives (including Mr Vardy’s solicitors and barristers and any support staff of those solicitors and barristers) and Mr Vardy’s servants, agents or employees and the Court (and any Court staff or any other person assisting the Court), on the grounds that such an order is necessary to prevent prejudice to the proper administration of justice under s 37AG(1)(a) of the FCA Act.

Court approval under 477(2B) of the Corporations Act

6.Pursuant to s 477(2B) of the Corporations Act, leave be granted to Mr Vardy to enter into, on behalf of the third, fourth, fifth, eighth, ninth and tenth defendants, and the second plaintiff, an agreement with the Commonwealth of Australia on terms substantially in line with the document that is marked “Confidential Exhibit DV-15” exhibited to the Vardy affidavit.

7.Pursuant to s 477(2B) of the Corporations Act, leave be granted to Mr Vardy to enter into, on behalf of the third, fourth, fifth, eighth, ninth and tenth defendants, the second plaintiff, and Roseville, an agreement with the partnership trading as “Ashurst Australia” (ABN 75 304 286 095) on terms substantially in line with the document that is marked “Confidential Exhibit DV-16” exhibited to the Vardy affidavit.

Variation to orders of Jackman J

8.Order 17 of the orders made 23 June 2023 by Jackman J be varied such that the costs, expenses and remuneration of Mr Vardy in his capacity as receiver and manager, without security, of the assets and undertakings of the Fifteen Investments Trust be costs in the liquidation of the NPC Pooled Group.

Other orders

9.The applicant’s costs of and incidental to this application be costs in the liquidation of the NPC Pooled Group.

10.The plaintiffs are to notify each eligible unsecured creditor at the time notice is given to them of the making of the pooling order pursuant to s 579K of the Corporations Act in Order 4 above, that each has an entitlement to make an application pursuant to s 579F of the Corporations Act to vary the pooling order.

11.These orders be entered forthwith.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

HALLEY J:

A.       INTRODUCTION

1. By an amended interlocutory process dated 2 September 2024, the plaintiffs sought orders that Darren John Vardy be appointed as liquidator of Roseville Construction Services Pty Ltd (in liquidation) (ACN 601 107 117) (Roseville Construction), for Roseville Construction to be added as a defendant to these proceedings, a pooling order (Revised Pooling Order) pursuant to s 579E of the Corporations Act 2001 (Cth) (Corporations Act) and other related orders.

2. Mr Vardy is the liquidator of the first plaintiff, Fourteen Consulting Services Pty Ltd (in liquidation) (ACN 626 923 297) (Fourteen), the second plaintiff, Boon Business Consultants Pty Ltd (in liquidation) (ACN 634 124 315) (Boon) and each of the defendants (Current Pooled Group).

3. The amended interlocutory process was supported by affidavits from Mr Vardy affirmed on 30 November 2023, 16 August 2024 and 3 September 2024. In addition, the plaintiffs relied on an affidavit of service from Alexander Blackie sworn on 2 September 2024 and tendered a copy of Mr Vardy’s consent to act as the liquidator of Roseville Construction.

4. On 3 September 2024, I made orders substantially in the terms of the relief sought in the amended interlocutory process. By way of summary, those orders comprised:

   (a)an order pursuant to r 9.05 of the Federal Court Rules 2011 (Cth) (FC Rules) that Roseville Construction be added as a defendant to these proceedings;

   (b)an order pursuant to s 499(3) of the Corporations Act and r 7.2 of the Federal Court (Corporations) Rules 2000 (Cth) (FCC Rules) that Mr Vardy be appointed liquidator of Roseville Construction;

   (c)an order pursuant to s 579E(1) of the Corporations Act that the Current Pooled Group and Roseville Construction are a pooled group for the purposes of s 579E of the Corporations Act (Revised Pooled Group);

   (d)orders pursuant to s 477(2B) of the Corporations Act granting leave to Mr Vardy to enter into:

   (i)an amended funding and indemnity agreement with the Commonwealth of Australia (Amended Funding Agreement); and

   (ii)an amended costs agreement with Ashurst Australia (Amended Costs Agreement);

   (e)suppression orders with respect to the contents of the Amended Funding Agreement and Amended Costs Agreement;

   (f)an order varying an order made by Jackman J on 23 June 2023 such that the costs, expenses and remuneration of Mr Vardy in his capacity as receiver and manager, without security, of the assets and undertakings of the Fifteen Investments Trust be costs in the liquidation of the Revised Pooled Group; and

   (g)an order that the plaintiffs are to notify each eligible unsecured creditor at the time notice is given to them of the making of the Revised Pooling Order that each has an entitlement to make an application pursuant to s 579F of the Corporations Act to vary the Revised Pooling Order.

5. There was no opposition of which Mr Vardy was aware to any of the relief claimed in the amended interlocutory process.

6. These are my reasons for making those orders.

   B.       BACKGROUND

7. For present purposes it is sufficient to provide the following background to the relief sought in the amended interlocutory process.

8. On 15 March 2023, Fourteen was wound up by an order of the Supreme Court of New South Wales and Mr Vardy was appointed liquidator.

9. On 19 May 2023, Boon was wound up by an order of this Court and Mr Vardy was appointed liquidator.

10. On 23 June 2023, four of the companies in the Current Pooled Group were wound up by an order of this Court and Mr Vardy was appointed liquidator. Mr Vardy was also appointed as receiver and manager of the assets and undertakings of the Fifteen Investments Trust.

11. On 20 December 2023, I made orders for the winding up of further companies, the appointment of Mr Vardy as liquidator of those companies and a pooling order with respect to those companies and companies of which Mr Vardy had previously been appointed liquidator and other related orders: Fourteen Consulting Services Pty Ltd (in liquidation) v A.O.B Holding Pty Ltd (in liquidation) (No 2) [2023] FCA 1684 (Fourteen Consulting (No 2)).

12. As I explained in Fourteen Consulting (No 2) at [13], as a result of his investigations to date, Mr Vardy has concluded that:

    (a)the Current Pooled Group was involved in a scheme (Scheme) which sought to benefit Samuel Henderson and/or his family by using the proceeds of a complex tax avoidance scheme involving Titan Cranes & Rigging Pty Ltd (ACN 109 564 721) (Titan Cranes) and its sole director, Damon Leo Hanlin;

    (b)the Scheme involved the Current Pooled Group:

    (i)providing labour hire and payroll services to, predominantly, Titan Cranes (Labour Hire Business);

    (ii)as part of the Labour Hire Business, receiving revenues or fruits from a broader scheme with Titan Cranes designed to avoid the payment of statutory liabilities, such as Pay As You Go (PAYG) withholding, in respect of the labour force employed as part of the Labour Hire Business, primarily for the benefit of Titan Cranes;

    (iii)using the tainted gains to purchase real property and make investments through one or more of the companies in the Current Pooled Group, often with those funds being recorded through multiple inter-company transactions and loans;

    (c)each of the companies in the Current Pooled Group (other than Simple Life.com Pty Ltd) were effectively controlled by Mr Henderson prior to his death on or about 4 April 2023; and

    (d)a number of the companies in the Current Pooled Group continue to hold or own assets from or comprising those illegally obtained gains, including monies from recent sales of real properties, choses in action and investments.

13. The elements of the Scheme were more comprehensively outlined by Jackman J in Fourteen Consulting Services Pty Ltd (in liq) v A.O.B. Holdings Pty Ltd [2023] FCA 704 at [3]-[5]. For present purposes, the explanation of the Scheme at [12] above is sufficient.

14. As a result of further investigations undertaken by Mr Vardy, he has now concluded that Roseville Construction was also involved in the Scheme, it was also controlled by Mr Henderson prior to his death and it continued, together with the Current Pooled Group, to hold or own assets from or compromising illegally obtained gains, including monies from recent sales of real properties, choses in action and investments. Mr Vardy has ascertained that Roseville Construction was one of the “Invoicing Entities” in the Scheme from about the time it was incorporated until about August 2017 and, as part of that role, it issued invoices to Titan Cranes in respect of, among other matters, “Employee Liabilities”.

    C.       JOINDER AND APPOINTMENT OF NEW LIQUIDATOR TO ROSEVILLE CONSTRUCTION

15. Roseville Construction was incorporated on 6 August 2014.

16. On 28 August 2019, Roseville Construction was wound up pursuant to a creditors’ voluntary winding up.

17. In the period between 6 August 2014 and 29 August 2019, Mr Henderson was the sole director of Roseville Construction.

18. At the time that Roseville Construction was wound up, David Ian Mansfield was appointed as liquidator pursuant to s 491 of the Corporations Act.

19. On 22 November 2023, Mr Mansfield resigned as the liquidator of Roseville Construction. No replacement liquidator was subsequently appointed to Roseville Construction.

20. Mr Mansfield reported in his End of Administration Return for Roseville Construction that the receipts in the liquidation totalled $17,751.38 and there was no return to creditors, who had an estimated value of $2,773,563.97 in debts owing to them.

21. In his statutory report to creditors dated 27 November 2019, Mr Mansfield stated that the six creditors of Roseville Construction comprised:

    (a)four superannuation funds that had submitted claims totalling $2,707,280.90;

    (b)the Australian Taxation Office (ATO), which had submitted a proof of debt totalling $253.26, which was said to be an accrued general interest charge on an outstanding debt incurred prior to August 2017; and

    (c)Revenue South Australia, which had submitted a proof of debt totalling $25,852.79 for unpaid payroll tax during the period 1 July 2016 to 30 September 2017.

22. Given that, pursuant to s 553AB of the Corporations Act, only the ATO can lodge a proof of debt for unpaid superannuation (by way of a superannuation guarantee charge), only the ATO and Revenue South Australia would have provable debts in the winding up of Roseville Construction.

23. On 20 February 2024, Black J made orders in the Supreme Court of New South Wales that delayed the deregistration of Roseville Construction until 20 February 2026.

24. Mr Vardy has identified a second limb Barnes v Addy claim by Roseville Construction against Titan Cranes and Mr Hanlin in respect of the entry by Roseville Construction, Fifteen Investments Pty Ltd (in liquidation) (Fifteen) and Titan Cranes into an agreement titled “Deed of assignment of debt” on or around 11 January 2018 (Roseville Construction Deed). Fifteen is a company in the Current Pooled Group.

25. Pursuant to the Roseville Construction Deed, Roseville Construction assigned to Fifteen a debt of $13,530,530.62 owing by Titan Cranes to Roseville Construction for a consideration of only $1.00.

26. I was satisfied that Roseville Construction, given its alleged involvement in the Scheme as an “Invoicing Entity” and its entry into the Roseville Construction Deed, should be joined to the proceedings pursuant to r 9.05 of the FC Rules on at least, the basis that its joinder was necessary to ensure that each issue in dispute in the proceeding will be able to be heard and finally determined and to avoid a multiplicity of proceedings.

27. I was also satisfied that Mr Vardy should be appointed as liquidator of Roseville Construction.

28. The Court may appoint Mr Vardy pursuant to s 499(3) of the Corporations Act and r 7.2 of the FCC Rules to fill the vacancy caused by Mr Mansfield’s resignation because Mr Mansfield was not appointed liquidator of Roseville Construction by, or at the direction of, a “Court” within the meaning of the Corporations Act, and Mr Vardy has filed a written consent in accordance with Corporations Form 8 of the FCC Rules. In my view, Mr Vardy has a legitimate and recognisable interest in obtaining an order to fill the vacancy, notwithstanding that he is not a creditor of Roseville Construction: In the matter of Tumut River Orchard Management Limited (in liq) ABN 003 501 611 [2011] NSWSC 915 at [11] (Hammerschlag J), affirmed in In the matter of Lake View Estates Pty Ltd (in liquidation) (ACN 108 590 129) [2015] NSWSC 2056 at [7] (Brereton J).

29. Given Roseville Construction was one of the Invoicing Entities in the Scheme and Mr Vardy has identified a substantial claim by Roseville Construction against Titan Cranes and Mr Hanlin, it is desirable that the claim be brought by Mr Vardy as the liquidator of Roseville Construction in conjunction with other claims he has identified against Titan Cranes and Mr Hanlin for two principal reasons. First, all of the claims arise out of the Scheme. Second, the claim is not likely to be brought by Roseville Construction unless Mr Vardy is appointed liquidator of Roseville Construction, which would be to the detriment of (a) the creditors of Roseville Construction and, (b) if Roseville Construction is pooled with the Current Pooled Group, to the detriment of the creditors of the Revised Pooled Group.

    D.       POOLING ORDER

30. Mr Vardy also sought an order that the Current Pooled Group and Roseville Construction constitute a “pooled group” for the purposes of s 579E of the Corporations Act. Such an order is designated by s 9 of the Corporations Act as a “pooling order”.

31. If a pooling order is made in respect of the Revised Pooled Group, all of the companies in that pooled group will be jointly and severally liable for the debts of, and claims against, each of them, with debts owing among the companies themselves extinguished. The assets available in each winding up would become applicable towards satisfaction of the external debts of all of the companies.

32. I was satisfied that each of the preconditions identified by Barrett J in In the matter of Kirby Street (Holding) Pty Limited (2011) 87 ACSR 84; [2011] NSWSC 1536 at [7] for the making of a pooling order was established.

33. First, the Revised Pooled Group comprises 37 companies and thus constitutes a group of two or more companies.

34. Second, each of the companies in the Revised Pooled Group is now in the process of being wound up.

35. Third, at least one of the conditions in subparagraphs (i) to (iv) of s 579E(1)(b) of the Corporations Act is satisfied, namely the three limbs of subparagraph (iv). Mr Vardy gave the following evidence.

36. As to the first limb, the “particular property” owned by “one or more” of the companies in the Revised Pooled Group is (a) the funds received from Titan Cranes in respect of the Labour Hire Business that was transferred by way of inter-company payments to various companies within the Revised Pooled Group and, in some instances, invested in real property or other investments, and (b) choses in action that certain entities in the Revised Pooled Group have, in the form of a right to sue, against Titan Cranes for amounts outstanding in respect of the labour hire and ancillary services provided to Titan Cranes pursuant to the Labour Hire Business, including the claim of $13,530,530.62 that Mr Vardy has identified that Roseville Construction has against Titan Cranes and Mr Hanlin as a result of its entry into the Roseville Construction Deed.

1. As to the second limb, the “particular property” was used, or was for the use, by any or all of the companies in the Revised Pooled Group pursuant to the Scheme.

2. As to the third limb, the “particular property” was used in connection with the Scheme, being a use “in connection with a business, scheme or undertaking carried on jointly” by the defendants. Each of the members of the Revised Pooled Group contributed to the Scheme. The Scheme was carried on jointly by all of them, in different ways as “Invoicing Entities”, “Employing Entities”, entities holding funds and entities using funds to acquire real property and make other investments. As submitted by the plaintiffs, the property owned by one or more of the members of the Revised Pooled Group, being the monies received from Titan Cranes or the right to recover monies from Titan Cranes, was used, or was for use, in connection with the Scheme carried on jointly by all of them.

3. Fourth, as to the “just and equitable” criteria in s 579E(12) of the Corporations Act, as submitted by the plaintiffs, Mr Vardy gave evidence that:

   (a)the members of the Revised Pooled Group were involved in the operations of other members of the Revised Pooled Group, including by reason of the large number of inter-company loan accounts, and the controlling mind of each of the members of the Revised Pooled Group was Mr Henderson;

   (b)the largest unrelated creditor of the Revised Pooled Group is the ATO, followed by state revenue offices, and the conduct of the companies in the Revised Pooled Group, and of Mr Henderson, towards those creditors was consistent in that they sought to avoid the payment of monies to those creditors;

   (c)the winding up of each of the members in the Revised Pooled Group is directly or indirectly attributable to the involvement of the members of the Revised Pooled Group in the Scheme;

   (d)the evidence referred to above and the existence of the Scheme demonstrates that the activities and business of the members of the Revised Pooled Group were intermingled;

   (e)the pooling of Roseville Construction with the Current Pooled Group would result in the creditors of the Current Pooled Group gaining the benefit of the additional claim of $13,530,530.62 against Titan Cranes and Mr Hanlin, which exceeds the known potential claims of creditors of Roseville Construction in the amount of approximately $2,773,000. The ATO is the largest creditor of both the Current Pooled Group and Roseville Construction, and the creditors of both Roseville Construction (the ATO and Revenue South Australia) and the Current Pooled Group have been notified of the plaintiffs’ application for the Revised Pooling Order, although only very recently for some creditors, and none sought to oppose the pooling order being made; and

   (f)if the Revised Pooling Order is made, there would be significant administrative advantages and costs savings because Mr Vardy would not need to split time recording and disbursements between the Current Pooled Group and Roseville Construction.

4. Having regard to the matters set out above, in my view, it was “just and equitable” that the Revised Pooling Order be made.

5. Fifth, I was satisfied that the Court was not precluded by s 579E(10) of the Corporations Act from making the Revised Pooling Order. In my view, given the evidence of Mr Vardy relied upon by the plaintiffs, no eligible unsecured creditor would be materially disadvantaged. In any event, Mr Vardy has notified all known eligible unsecured creditors of both Roseville Construction and each of the companies in the Current Pooled Group and none of the creditors has indicated that they have any opposition to the plaintiffs’ application for the Revised Pooling Order. Further, given the late notice to some creditors of the application for the Revised Pooling Order, I made an additional order requiring the plaintiffs, at the time that they notify all creditors of the Revised Pooled Group pursuant to s 579K of the Corporations Act of the making of the Revised Pooling Order, also to notify creditors of their entitlement to make an application to the Court pursuant to s 579F to vary the Revised Pooling Order.

6. For the foregoing reasons, I was satisfied that an order should be made that the Revised Pooled Group constitutes a “pooled group” for the purposes of s 579E of the Corporations Act.

   E.       SUPPRESSION ORDER

7. The plaintiffs sought a suppression order with respect to the Amended Funding Agreement and the Amended Costs Agreement exhibited to Mr Vardy’s affidavit affirmed on 16 August 2024.

8. Having reviewed those documents, I was satisfied that each contained sensitive commercial information and that it was necessary to suppress and prohibit publication of those documents in order to prevent prejudice to the proper administration of justice, and after having taken into account the primary objective of safeguarding the public interest in open justice and that the order only operated for no longer than was reasonably necessary to achieve the purpose for which it was made.

   F.        SECTION 477(2B) APPROVAL

9. Section 477(2B) of the Corporations Act provides that except with the approval of the Court, of the committee of inspection or of a resolution of the creditors, a liquidator of a company must not enter into an agreement on the company’s behalf if the term of the agreement may end, or obligations of a party to the agreement may, according to the terms of the agreement, be discharged by performance more than three months after the agreement was entered into.

10. Given the terms of the Amended Funding Agreement and the Amended Costs Agreement, it is necessary for Mr Vardy to obtain the approval of the Court (or a committee of inspection or a resolution of creditors) to enter into each agreement.

11. Bearing in mind the well-established principle that the Court does not concern itself with the commercial desirability of transactions the subject of an application for approval pursuant to s 477(2B), I was satisfied from my review of the Amended Funding Agreement and the Amended Costs Agreement that the amendments to the existing funding agreement and costs agreement were of a relatively minor character and there was nothing to suggest any lack of good faith, some error in law or principle, or any real or substantial grounds for doubting the prudence of Mr Vardy’s decision to enter into the agreements: Re Spedley Securities Ltd (in liq) (1992) 9 ACSR 83 at 85-86 (Giles J); Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher & Barnet (as liquidators of Octaviar Administration Pty Ltd (in Liq) (2015) 89 NSWLR 110; [2015] NSWCA 85 at [125] (Bathurst CJ with whom Beazley P and Macfarlan, Meagher and Barrett JJA agreed).

    G.       VARIATION TO COSTS ORDER MADE BY JACKMAN J

12. On 23 June 2023, Jackman J made orders appointing Mr Vardy as receiver and manager, without security, of the assets and undertakings of the Fifteen Investments Trust (Order 14); and that the costs, expenses and remuneration of Mr Vardy in acting as the receiver and manager of the assets and undertakings of the Fifteen Investments Trust, including the costs of the application for his appointment, be paid from the assets of the Fifteen Investments Trust (Order 17).

13. Mr Vardy sought an order varying Order 17 made by Jackman J on 23 June 2023 such that the costs, expenses and remuneration of Mr Vardy, in his capacity as receiver and manager of the Fifteen Investments Trust, be costs in the liquidation of the Revised Pooled Group.

14. I was satisfied that the order sought by Mr Vardy should be made because (a) Mr Vardy has given evidence that each of the creditors of the Fifteen Investments Trust are also creditors of Fifteen, (b) the sole director of the previous corporate trustee of the Fifteen Investments Trust, Alison Lee Henderson, swore an affidavit in these proceedings on 14 July 2023, which was not filed but was contained within Exhibit DV-14 exhibited to the 16 August 2024 affidavit of Mr Vardy, confirming that the corporate trustee acted solely as trustee of the Fifteen Investments Trust, and (c) given the extent of the intermingling of the operations of the Fifteen Investments Trust with the Revised Pooled Group, it would be more cost efficient and desirable that the remuneration of Mr Vardy be approved by the creditors of the Revised Pooled Group as a whole.

    H.       DISPOSITION

15. For the reasons set out above, I was satisfied that orders should be made substantially in the form sought in the amended interlocutory process.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Halley.

Associate:

Dated:       4 September 2024

SCHEDULE OF PARTIES

NSD 331 of 2023
Defendants
Fifth Defendant:	FIFTEEN INVESTMENTS PTY LIMITED (IN LIQUIDATION) (ACN 158 241 546)
Sixth Defendant:	GOLDEN OX TAVERN PTY LTD (IN LIQUIDATION) (ACN 660 304 147)
Seventh Defendant:	NPC ADVISORY PTY LTD (IN LIQUIDATION) (ACN 634 205 306)
Eighth Defendant:	ULTIMATE LABOUR HIRE PTY LTD (IN LIQUIDATION) (ACN 635 852 630)
Ninth Defendant:	NPC ADVISORY CORPORATE PTY LTD (IN LIQUIDATION) (ACN 651 525 209)
Tenth Defendant:	NPC ADVISORY (TC) PTY LTD (IN LIQUIDATION) (ACN 651 525 192)
Eleventh Defendant:	SHEEHAN CONSTRUCTION SERVICES 1 PTY LTD (IN LIQUIDATION) (ACN 646 390 114)
Twelfth Defendant:	REDWOOD CONSTRUCTION SERVICES (Y&H) PTY LTD (IN LIQUIDATION) (ACN 650 150 646)
Thirteenth Defendant:	REDWOOD CONSTRUCTION SERVICES (SA/TAS) PTY LTD (IN LIQUIDATION) (ACN 632 868 494)
Fourteenth Defendant:	REDWOOD CONSTRUCTION SERVICES (QLD) PTY LTD (IN LIQUIDATION) (ACN 651 504 139)
Fifteenth Defendant:	REDWOOD CONSTRUCTION SERVICES (NSW) PTY LTD (IN LIQUIDATION) (ACN 650 150 262)
Sixteenth Defendant:	REDWOOD CONSTRUCTION SERVICES (MULGRAVE) PTY LTD (IN LIQUIDATION) (ACN 640 776 674)
Seventeenth Defendant:	REDWOOD CONSTRUCTION SERVICES (CW) PTY LTD (IN LIQUIDATION) (ACN 650 150 431)
Eighteenth Defendant:	REDWOOD CONSTRUCTION SERVICES (AUST) PTY LTD (IN LIQUIDATION) (ACN 640 776 370)
Nineteenth Defendant:	REDWOOD CONSTRUCTION SERVICES (VIC) PTY LTD (IN LIQUIDATION) (FORMERLY KNOWN AS REDWOOD CONSTRUCTION SERVICES 6 PTY LTD) (ACN 632 870 412)
Twentieth Defendant	152 INVESTMENTS PTY LIMITED (IN LIQUIDATION) (ACN 651 524 784)
Twenty First Defendant:	ACN 643 244 982 PTY LIMITED (IN LIQUIDATION) (ACN 643 244 982) (FORMERLY NPC ADVISORY (AUSTRALIA) PTY LIMITED)
Twenty Second Defendant:	FT FINANCE & CAPITAL PTY LIMITED (IN LIQUIDATION) (ACN 640 740 594)
Twenty Third Defendant	MCFE INVESTMENTS PTY LIMITED (IN LIQUIDATION) (ACN 639 293 673)
Twenty Fourth Defendant	MCFE GLOBAL PTY LIMITED (IN LIQUIDATION) (ACN 646 966 127)
Twenty Fifth Defendant	NPC ADVISORY (NSW) PTY LIMITED (IN LIQUIDATION) (ACN 643 244 517)
Twenty Sixth Defendant	NPC ADVISORY BLUE PTY LTD (IN LIQUIDATION) (ACN 666 606 435)
Twenty Seventh Defendant	NPC BLACKHEAD PTY LIMITED (IN LIQUIDATION) (ACN 647 519 006)
Twenty Eighth Defendant	NPC ELIZABETH AVE BROADBEACH PTY LTD (IN LIQUIDATION) (ACN 660 351 717)
Twenty Ninth Defendant	NPC GOLDEN OX PTY LTD (IN LIQUIDATION) (RECEIVER AND MANAGER APPOINTED) (ACN 659 452 650)
Thirtieth Defendant	NPC KINGSCLIFF PTY LIMITED (IN LIQUIDATION) (ACN 651 525 138)
Thirty First Defendant	NPC MACDONNELL RD PTY LTD (IN LIQUIDATION) (ACN 651 525 254)
Thirty Second Defendant	NPC MCCULLOCH AVE PTY LIMITED (IN LIQUIDATION) (ACN 659 452 829)
Thirty Third Defendant	PROGRESSIVE PEOPLE (AUSTRALIA) PTY LIMITED (IN LIQUIDATION) (ACN 068 516 343)
Thirty Fourth Defendant	SIMPLE LIFE.COM PTY LTD (IN LIQUIDATION) (ACN 668 098 959)
Thirty Fifth Defendant	WHITE FIG REHABILITATION & RECOVERY PTY LTD (IN LIQUIDATION) (ACN 661 547 093)
Thirty Sixth Defendant	AUSTRALIAN LENDING AND FINANCE PTY LTD (PROVISIONAL LIQUIDATOR APPOINTED) (ACN 608 620 622)