FEDERAL COURT OF AUSTRALIA
GO Markets Pty Ltd v Gupta [2025] FCA 554
File number(s): VID 1352 of 2024 Judgment of: O’CALLAGHAN J Date of judgment: 26 May 2025 Date of publication of reasons: 27 May 2025 Catchwords: BANKRUPTCY AND INSOLVENCY – applicant seeking leave pursuant to s 58(3)(b) of the Bankruptcy Act 1966 (Cth) to continue proceeding against respondents – allegation that first respondent received secret commissions during employment with applicant – full extent of dishonest conduct and financial loss not yet known – leave granted Legislation: Bankruptcy Act 1966 (Cth) ss 58 and 82
Corporations Act 2001 (Cth) ss 182 and 1317H
Federal Court Rules 2011 (Cth) rr 7.32 and 7.33
Cases cited: Hillig, in the matter of Battaglia [2019] FCA 2191
Re Sharp; Ex parte Tietyens Investments Pty Ltd (in liq) [1998] FCA 1367
Division: General Division Registry: Victoria National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Number of paragraphs: 32 Date of hearing: 26 May 2025 Counsel for the Applicant: S L Jenkins Solicitor for the Applicant: Gadens Lawyers Counsel for the Respondents: The respondents did not appear Solicitor for the Trustees: Mr C Brown of Bridges Lawyers ORDERS
VID 1352 of 2024 BETWEEN: GO MARKETS PTY LTD (ACN 081 864 039)
Applicant
AND: ASHEISH GUPTA
First Respondent
KANIKA GUPTA
Second Respondent
ORDER MADE BY:
O’CALLAGHAN J
DATE OF ORDER:
26 MAY 2025
THE COURT ORDERS THAT:
1.The applicant be granted leave to continue this proceeding against the first and second respondents pursuant to s 58(3)(b) of the Bankruptcy Act 1966 (Cth).
2.The respondents pay the applicant’s costs of this application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth).
REASONS FOR JUDGMENT
O’CALLAGHAN J:
INTRODUCTION
Mr Asheish Gupta, the first respondent, voluntarily declared bankruptcy in March 2025. (His wife, Mrs Kanika Gupta, is in this proceeding the second respondent.)
On 17 March 2025, Mr Andrew Aravanis and Mr Alexander David Clarke were appointed as joint and several trustees of Mr Gupta’s bankrupt estate. By operation of s 58(3) of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act), no fresh steps can be taken in this proceeding without leave of the court.
The applicant, GO Markets Pty Ltd (GO Markets), wishes to take fresh steps in this proceeding, including by seeking leave to:
(a)compel Mr and Mrs Gupta to comply with the ancillary orders dated 20 December 2024, requiring the respondents to produce bank statements for all bank accounts in their sole and joint names from January 2019 to present;
(b)compel Mrs Gupta to produce an affidavit setting out all of her assets in Australia and giving their value, location and details, as required by paragraph 8 of the freezing orders dated 20 December 2024; and
(c)issue subpoenas to third parties, including the respondents’ banks and also IBM Australia Limited (formerly Soft Layer) (IBM), Link11 GmBH (Link11) and DOSArrest Internet Security Ltd (DOSArrest).
At…
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- Case
- [2025] FCA 554
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether leave should be granted to GO Markets to continue the proceeding against the respondents under section 58(3)(b) of the Bankruptcy Act 1966 (Cth). The court had to consider whether the continuation of the proceeding would result in material prejudice to other creditors of Mr Gupta. Given that ANZ and Bravure, other creditors, were owed relatively small amounts compared to GO Markets' substantial claim, the court concluded that the continuation of the proceeding would not cause significant harm to other creditors.
In granting leave, the court reasoned that the significant financial claim made by GO Markets against Mr Gupta, coupled with the relatively minor debts owed to other creditors, indicated that there would be no material prejudice to those creditors if the proceeding continued. The court found that the applicant had established the necessary grounds for granting leave under section 58(3)(b) of the Bankruptcy Act. Consequently, the court ordered that GO Markets be granted leave to continue the proceeding against the first and second respondents, and that the respondents pay the applicant’s costs of the application.
Orders
Orders of the court
1. The applicant be granted leave to continue this proceeding against the first and second respondents pursuant to s 58(3)(b) of the Bankruptcy Act 1966 (Cth).
2. The respondents pay the applicant’s costs of this application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth).
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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