In the matter of 77738930144 Pty Limited (in liq) (formerly Commercial Indemnity Pty Ltd)

Case •

[2017] NSWSC 452

•

21 April 2017

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: In the matter of 77738930144 Pty Limited (in liq) (formerly Commercial Indemnity Pty Ltd) [2017] NSWSC 452
Hearing dates: 20 and 29 March 2017
Decision date: 21 April 2017
Before: Gleeson JA
Decision:

(1)   Order, pursuant to ss 7 and 8(1)(a) of the Courts Suppression and Non-Publication Orders Act 2010 (NSW), that:
(i)   disclosure of annexure “A” to the confidential affidavit of Geoffrey Newling sworn 14 March 2017, annexures “A” and “B” to the affidavit of Geoffrey Trent Hancock sworn 24 March 2017 and confidential exhibit 2 be prohibited except by order of the Court made on application of which the plaintiff has been given at least three business days’ notice;
(ii)   that the documents referred to in (i) above be retained in the Court file in an envelope marked “Confidential: to be opened only by Order of the Court”; and
(iii)   that this Order take effect in the Commonwealth of Australia,
(2) Order pursuant to s 511 of the Corporations Act 2001 (Cth) (the Act) that Geoffrey Trent Hancock be appointed as an additional liquidator (the Special Purpose Liquidator) to the first defendant (Company) for the following purposes:
(a)   Conducting investigations in relation to any of the matters set out in the affidavit of Geoffrey Newling sworn 24 February 2017 (the Newling affidavit) including, if thought by him to be appropriate, by:
(i)   inspecting the books and records of the Company, excluding any files and working papers of the second defendant;
(ii)   conducting examinations pursuant to ss 596A and 596B of the Act or obtaining orders for production pursuant to s 597(9) of the Act; and
(iii)   requiring statements to be provided pursuant to s 475(2) of the Act;
(b)   commencing and pursuing any claim, including by commencing legal proceedings, that may be available to the Company or the Special Purpose Liquidator in relation to any of the matters set out in the Newling affidavit, including obtaining and considering legal advice in respect of any such claim;
(c)   taking any steps as Special Purpose Liquidator in relation to any of the matters set out in the Newling affidavit, including by commencing legal proceedings to preserve or protect the assets of the Company, or the assets to which the Company or the Special Purpose Liquidator claim to be entitled, and whether or not those assets are in the possession of the Company; and
(d)   exercising any powers conferred on the liquidator by ss 477 and 506(1)(b) of the Act, including the power to seek relief under s 588FF of the Act, for the purposes set out in (i) to (iii) above, except for the powers contained in ss 477(1)(a)–(c) and 477(2)(f) and (g).
(3)   Order the Special Purpose Liquidator to report to creditors of the Company and to the liquidator, Mr Cummins, in accordance with the requirements of the Act, on the terms of his appointment and subsequently once every three months during the course of his appointment;
(4)   Order the second defendant (Mr Cummins):
(a)   refrain from exercising any of the powers given to the Special Purpose Liquidator in Order 2 above, except with the prior written consent of the Special Purpose Liquidator (such consent not to be unreasonably withheld) or by leave of the Court; and
(b)   use reasonable endeavours to assist the Special Purpose Liquidator to exercise the powers given to him on Order 2 above, including by providing any documents or information previously prepared or obtained by or for him in investigating or pursuing any claim in relation to any of the matters set out in the Newling affidavit;
(5) Order under s 477(2B) of the Act that approval be given for Mr Hancock, in his capacity as Special Purpose Liquidator of the Company, entering into:
(a)   a funding deed in or substantially to the effect of the deed that is annexure “A” to the affidavit of Geoffrey Trent Hancock sworn 24 March 2017, including the amendment to the definition of “Trust Account” in the form contained in Exhibit 2; and
(b)   a costs agreement in substantially the same form as the document in annexure “B” to that affidavit.
(6)   Note the undertaking given to the Court by Mr Hancock that he will not look to or assert any entitlement to resort to funds or property of the Company, or to recover his fees and expenses in respect of his appointment from the Company, other than:
(a)   in accordance with the terms of the funding deed; or
(b)   out of the assets or benefits recovered by him during the course of his appointment as a Special Purpose Liquidator of the Company,
and in each case in accordance with s 473 of the Act.

Catchwords:

CORPORATIONS – external administration – application for appointment of an additional liquidator for a special purpose – where contributory of the company seeks the appointment of additional liquidator to investigate potentially voidable transactions between company in liquidation and its sole shareholder and director and another company under his control – where current liquidator is unfunded and not intending to take any further action in investigating the transactions – whether appropriate to make order appointing additional liquidator.

CORPORATIONS – external administration – application by liquidator for approval of entry into contracts of more than three months duration under Corporations Act s 477(2B) – whether appropriate to allow special purpose liquidator to enter into a funding deed with a creditor of the company – whether appropriate to allow special purpose liquidator to retain solicitors also retained by the contributory and funder.
Legislation Cited: Corporations Act 2001 (Cth), ss 9, 477(2B), 491, 493, 493A(2), 494(1), 506(1A), 506(1A)(a), 511
Corporations and Other Legislation Amendment (Insolvency Law Reform) Regulations 2016 (Cth), Sch 2
Corporations Regulations 2001 (Cth) reg 10.25.02(3)(h)
Insolvency Law Reform Act 2016 (Cth), s 511, Sch 2, Pt 2, Item 170
Cases Cited: Commonwealth Bank of Australia v Fernandez (2011) ACSR 262; [2010] FCA 487
Dalgety Downs Pastoral Co Pty Ltd v Commissioner of Taxation (Cth) (1952) 86 CLR 335
In the matter of Ambient Advertising Pty Ltd (in liquidation) [2015] NSWSC 1079
In the matter of AT Air Group Pty Limited (in liq) [2012] NSWSC 1508
In the matter of Commercial Indemnity Pty Ltd [2016] NSWSC 1125
In the matter of Mustang Marine Australia Services Pty Limited [2012] NSWSC 620
Lo v Nielsen & Moller (Auto Glass) (NSW) Pty Ltd [2008] NSWSC 407
Meadow Springs Fairway Resort Ltd (in liq) v Balanced Securities Ltd (2007) 25 ACLR 1433; [2007] FCA 1443
Natural Extracts Pty Ltd v Stotter (1998) (unreported, Fed Ct of Aust, Hely J, 18 December 1998)
Re ACN 076 673 875 Ltd (2002) 42 ACSR 296; [2002] NSWSC 578
Re ACN 151 726 224 Pty Ltd (in liq) (previously Ridley Capital Holdings Pty Ltd) [2016] NSWSC 1801
Re Ansett Australia (No 3) (2002) 115 FCR 409; [2002] FCA 90
Re Colorado Products Pty Limited (in prov liq) [2013] NSWSC 1613
Re G A Listing & Maintenance Pty Ltd (1994) 15 ACSR 308
Re HIH Insurance Ltd [2004] NSWSC 5
Re HIH Insurance Group Ltd (2001) 19 ACLC 1,102; [2001] NSWSC 308
Re HIH Overseas Holdings Ltd (inprov liq) [2001] NSWSC 426
Re Kala Capital Pty Ltd (in liq) [2012] NSWSC 1073
Re Laurie Cottier Productions Pty Ltd (in liq) (1992) 9 ACSR 513
Re Leigh [2006] NSWSC 315
Re MF Global Australia Ltd (in liq) [2012] 267 FLR 27; [2012] NSWSC 994
Re One.Tel Limited (2014) 99 ACSR 247; [2014] NSWSC 457
Re River City Motorway Pty Limited (Admin appointed) (Recs and Mgrs appointed) (2014) 225 FCR 541; [2014] FCA 1008
Re Smarter Way (Aust) Pty Ltd (2000) 35 ACSR 595; [2000] VSC 408
Re Spedley Securities Ltd (in liq) (1992) 9 ACSR 83
Venetian Nominees Pty Ltd & Anor v Conlon (1999) 17 ACLC 301
State Bank (NSW) v Turner Corporation Ltd (1994) 14 ACSR 480
Category:Principal judgment
Parties: Geoffrey Peter Newling (Plaintiff)
77738930144 Pty Ltd (in liq) (formerly known as Commercial Indemnity Pty Limited) (First Defendant)
Andrew John Cummins in his capacity as liquidator of 77738930144 Pty Ltd (in liq) (ACN 103 983 777) (formerly known as Commercial Indemnity Pty Limited) (Second Defendant)
Representation:

Counsel:
C Harris SC (Plaintiff/Proposed additional liquidator)
A Bobb (solicitor) (Defendants)

  Solicitors:
Eakin McCaffery Cox (Plaintiff/Proposed additional liquidator)
Russells (Defendants)
File Number(s): 2017/66268
Publication restriction: No

Judgment

  1. GLEESON JA: On 12 June 2015, Mr John Gardner as the sole member of the first defendant company, 7773890144 Pty Ltd (formerly Commercial Indemnity Pty Ltd) resolved that the company be wound up voluntarily and appointed Mr Andrew Cummins as liquidator: Corporations Act 2001 (Cth), s 491.

  2. The plaintiff, Mr Geoffrey Newling, claims to be a contributory of the company. He makes application under s 511 of the Corporations Act for the appointment of a special purpose liquidator of the company for the specific purposes reflected by the powers set out in par 2 to his originating process. Those powers provide for the investigation of various transactions and financial dealings between the company and its sole director and shareholder, Mr Gardner (and his wife) and his company, Corporate Indemnity Pty Ltd (Corporate Indemnity).

  3. The proposed additional liquidator, Mr Geoffrey Hancock, has given his written consent to the appointment.

  4. Mr Newling also seeks approval under ss 477(2B) and 506(1A) and declarations under s 511 of the Corporations Act, in relation to Mr Hancock entering into (a) a funding deed under which G&L Newling Pty Ltd (G&L Newling) will provide funding to the company and Mr Hancock as the special purpose liquidator to carry out the special purposes, and (b) a costs agreement with solicitors.

Background

  1. Up until 11 June 2015 the first defendant was known as Commercial Indemnity Pty Ltd. At all relevant times Mr Gardner was the sole director, company secretary and sole shareholder holding 20,000 ordinary shares in the company.

  2. The company operated an insurance underwriting agency primarily involved in the Australian petroleum industry selling petroleum bonds. The company earned income in the form of commissions from insurers which issued bonds on behalf of the company’s clients. Typically the company was entitled to retain 30% of the premium paid by the client as its commission and passed on the remaining 70% of the premium to the insurer. The commissions retained by the company were divided equally between Corporate Indemnity – of which Mr Gardner was the sole director and sole director, and G&L Newling – of which Mr Newling’s wife was the sole director and sole shareholder.

  3. In 2008 Mr Gardner agreed with Mr Newling to transfer 50% of the shares in the company to Mr Newling or his nominee. Mr Newling paid or caused to be paid to Mr Gardner the agreed consideration but Mr Gardner failed to transfer the shares to Mr Newling.

  4. On 12 May 2015 Mr Newling commenced proceedings in the Supreme Court against, among others, Mr Gardner and the company claiming a declaration that he owned 10,000 of the 20,000 ordinary shares in the company; and alternatively, that the company be wound up for oppression or on the just and equitable ground (the Equity proceedings).

  5. About one month later the following occurred: the company transferred $80,000 from its account with Westpac Bank to Corporate Indemnity on 10 June 2015. On 11 June 2015, Mr Gardner changed the name of the company to “7773890144 Pty Limited”. On 12 June 2015 the company transferred $49,500 from its Westpac account to Corporate Indemnity; and the company sold its business to Corporate Indemnity, for a stated consideration of $21,000 and an agreement by Corporate Indemnity to assume certain liabilities of the company.

  6. As indicated, also on 12 June 2015, the company was placed into voluntary winding up by Mr Gardner and Mr Cummins was appointed liquidator. It appears that Mr Gardner as the sole director of the company did not make a declaration of solvency (Corporations Act, s 494(1)), and that the liquidator proceeded to treat the winding up as a creditors’ voluntary winding up.

  7. On 9 June 2016 Brereton J delivered judgment in the Equity proceedings declaring that Mr Newling owned 10,000 shares in the company: In the matter of Commercial Indemnity Pty Ltd [2016] NSWSC 1125. His Honour held that s 493A of the Corporations Act was no impediment to the making of that declaration.

  8. Section 493A relevantly provides that a transfer of shares in a company made after the passing of a resolution for a voluntary winding up is void, except if the liquidator gives written consent and either the consent is unconditional, or (if subject to one or more specified conditions) those conditions are satisfied, or the Court makes an order authorising the transfer. The section provides that the liquidator may give consent only if satisfied that the transfer is in the best interests of the creditors as a whole; that if the liquidator refuses to give consent, the prospective transferor or transferee or a creditor may apply to the Court for an order authorising the transfer; and that, if satisfied on such an application that the transfer is in the best interests of the company's creditors as a whole, the Court may authorise the transfer. The liquidator is entitled to be heard in proceedings before the Court in relation to such an application.

  9. Brereton J said of s 493A in In the matter of Commercial Indemnity Pty Ltd at [33] that:

The section voids the legal transfer, not the contract which precedes the transfer, nor any equities arising under that contract. Even if consent to the transfer were refused by the liquidator, the transferee is still entitled in equity to the benefits attached to the share and would be entitled to have the legal owner account for them, including any distribution of surplus made to the shareholder by the liquidator. Moreover, a declaration that the plaintiff is beneficially entitled to the shares in question and the presentation of a duly executed transfer would provide the basis for requesting the liquidator's consent.

  1. A transfer in respect of 10,000 shares in the company (signed by Mr Newling and Mr Gardner) was provided to the liquidator on 12 August 2016, however no steps were taken by the liquidator to register the transfer. Nonetheless, the liquidator seems to have treated Mr Newling as if he was a shareholder in the company.

  2. Insofar as Mr Newling seeks relief in these proceedings under s 511 of the Corporations Act, he claims to be a contributory of the company. The definition of “contributory” in Corporations Act, s 9, includes the holder of fully paid shares in relation to a company. The term “holder” refers to the legal owner of shares according to the register of members: Dalgety Downs Pastoral Co Pty Ltd v Commissioner of Taxation (Cth) (1952) 86 CLR 335 at 341. When he commenced these proceedings, Mr Newling was not the holder of shares in the company.

  3. After the question of Mr Newling’s standing as a contributory was drawn to the parties’ attention, the liquidator gave his unconditional written consent to the transfer of 10,000 shares in the company to Mr Newling. In giving that consent, the liquidator expressed his satisfaction that the transfer was in the best interest of the company as a whole. There is evidence that the transfer was registered on 20 March 2017 and a search of the records of ASIC shows Mr Newling is now the holder of 10,000 shares in the company. Thus, Mr Newling is now within the definition of a contributory: Natural Extracts Pty Ltd v Stotter (1998) (unreported, Fed Ct of Aust, Hely J, 18 December 1998) at p 13.

Power to appoint additional liquidator

  1. It is well-established that in the case of a voluntary winding up, the Court has power to appoint an additional or special purpose liquidator on an application by a contributory (among others): Lo v Nielsen & Moller (Auto Glass) (NSW) Pty Ltd [2008] NSWSC 407 at [29]-[30] (Barrett J). That power arises under s 511 of the Corporations Act which relevantly provides:

(1) The liquidator, or any contributory or creditor, may apply to the Court:

(a) to determine any question arising in the winding up of a company; or (b) to exercise all or any of the powers that the Court might exercise if the company were being wound up by the Court.

… (2) The Court, if satisfied that the determination of the question or the exercise of power will be just and beneficial, may accede wholly or partially to any such application on such terms and conditions as it thinks fit or may make such other order on the application as it thinks just.

  1. Although s 511 was repealed by Sch 2, Pt 2, Item 170 of the Insolvency Law Reform Act 2016 (Cth), which came into force on 1 March 2017, the repeal of s 511 will not come into operation until 1 September 2017, by reason of Corporations Regulations 2001 (Cth) reg 10.25.02(3)(h) which was introduced by Schedule 2 of the Corporations and Other Legislation Amendment (Insolvency Law Reform) Regulations 2016 (Cth).

  2. Mr Newling, being a contributory, has standing under s 511 to seek the appointment of an additional liquidator. The appointment of an additional liquidator can be made where the Court considers that it would be “just and beneficial” to do so: s 511(2).

Standing to seek other relief under s 511 and s 477(2B) in advance of appointment of additional liquidator

  1. When the originating process first came before the Court on 20 March 2017, I raised with counsel for Mr Newling the question whether Mr Newling had standing to seek approval of the funding deed and the costs agreement under s 477(2B). Among other things, Mr Hancock, the proposed special purpose liquidator, had not yet been appointed, nor had he been joined as a party to the proceedings.

  2. I indicated to counsel for Mr Newling that the apparent difficulties might be addressed if Mr Hancock filed his own interlocutory process returnable instanter at the adjourned hearing of Mr Newling’s application seeking relief under s 477(2B), contingent upon his appointment as an additional liquidator. That course was taken ultimately by Mr Hancock. In the circumstances it is not necessary to determine the correctness of the “single application” procedure adopted by Mr Newling relying upon the authority of In the matter of Ambient Advertising Pty Ltd (in liquidation) [2015] NSWSC 1079 (Robb J). I would however make the following observations.

  3. In Ambient Advertising a creditor sought in the one application orders for the appointment of an additional liquidator for certain special purposes, together with orders under s 477(2B) to enable the special purpose liquidator to execute a funding agreement that would provide funding to the company and the special purpose liquidator to carry out the special purposes. That relief was granted; however it seems that relevant authorities on the question of standing were not drawn to the Court’s attention.

  4. In Venetian Nominees Pty Ltd & Anor v Conlon (1999) 17 ACLC 301 the applicants sought the appointment of an additional liquidator for specified purposes and also sought approval for that additional liquidator to enter into an indemnity agreement with the applicants. Master Sanderson indicated that he would make the appointment of the additional liquidator and that, once appointed, the additional liquidator could apply under s 477(2B) for leave to enter into the indemnity agreement. Master Sanderson observed at [7] –[8] that:

That is an application which must be considered on its merits and it is an application which can only be made by a properly appointed liquidator. ...

It is only when the liquidator wishes to enter into an agreement of the nature specified in [s 477(2B)] that application is to be made to the Court. Then the Court can empower the liquidator to enter into the agreement. It cannot force him to do so - the sub-section is permissive, not mandatory. It therefore seems to be that it is the liquidator who must apply to the Court under s 477(2B).

  1. In the matter ofAT Air Group Pty Limited (in liq) [2012] NSWSC 1508, Black J at [22] expressed the view that Master Sanderson’s decision was plainly correct because:

no occasion could arise for the grant of approval for an indemnity agreement by the additional Liquidator under s 477(2B) until the additional Liquidator had in fact been appointed, and, as Master Sanderson noted, such approval could only be granted if the additional Liquidator in fact sought to enter into that indemnity agreement and wished to obtain the Court's approval to do so.

I respectfully agree with that analysis.

  1. I would add that the procedural difficulty identified by Master Sanderson is heightened in the present case, where the applicant for appointment of the special purpose liquidator, in addition to seeking approval of a funding agreement under s 477(2B), also sought a declaration under s 511 of the Corporations Act that the liquidator would be justified in entering into a funding agreement and a costs agreement. This is because it would not be appropriate to make a declaration under s 511 in the absence of joinder of all proper parties, relevantly, both the special purpose liquidator (once appointed), and a representative defendant of unsecured creditors.

  2. Ordinarily, the additional liquidator once appointed would make any relevant application for s 477(2B) approvals. That can be achieved in the present case in a single proceeding by the procedure adopted here; a separate application by the proposed special purpose liquidator returnable instanter in the proceedings in which he is appointed.

  3. Black J expressed the view in AT Air Group that he did not see any reason, in principle or practice, why an application under s 477(2B) could not have been made by the other parties to the agreement (in that case, the funder) after the additional liquidator had been appointed and in circumstances where the additional liquidator had reached a decision to enter into the indemnity agreement and indicated that he or she sought approval from the Court to do so, such as by filing an affidavit in support of the application before the Court. His Honour emphasised that s 477(2B) does not specify who has standing to make an application for the approval contemplated by the section. It is, instead, a prohibition on the liquidator taking a particular step unless that approval has been obtained. His Honour continued at [23]:

In my view, the limitation on the circumstances in which an application may be brought under that section depends less on the identity of the applicant than on the fact that the Court's approval can only be obtained for an agreement that a Liquidator in fact proposes to enter into, if the relevant approval is given. It would not, for example, be open to a creditor or party to an agreement to bring an application under that section for approval of anagreement that it contends that a Liquidator should enter into, where the Liquidator does not wish to enter into that agreement.

  1. So much can be accepted, however, as the present case demonstrates difficulty can still arise if the Court is asked by the applicant for s 477(2B) approval to accept undertakings which are merely foreshadowed in an affidavit made by the proposed additional liquidator but he or she is not present or represented before the Court to give such undertakings to the Court. That was the position in this case when the matter was first before the Court on 20 March 2017.

Is an additional liquidator necessary?

  1. The liquidator, Mr Cummins, is unfunded; he is holding $20,000 cash at bank, and his unpaid remuneration is in the order of approximately $50,000. In his report to creditors dated 9 September 2016, Mr Cummins indicated that there will be no distribution to unsecured creditors.

  2. Mr Cummins deposed that his investigations concluded that determining the date of insolvency of the company would be problematic given that there were very few, if any, unrelated creditors; and that the sale of the company’s assets to related parties was for a “meaningful” consideration in circumstances where the company had ceased trading due to the cancellation of the underwriting agreement with CGU and the inability to replace it. However, Mr Cummins did not reach any final conclusion as to whether that consideration was appropriate. Mr Cummins acknowledged that there were payments made to and transactions with related parties which might require further investigation depending upon whether unrelated third parties have been prejudiced. His investigation had not established such prejudice, if any.

  3. Mr Cummins does not oppose the appointment of an additional liquidator provided the appointment does not prejudice the general body of creditors or Mr Cummins as liquidator, and that the general body of creditors of the company might benefit if there were surplus recoveries after repayment of funding advances and the funders’ premium.

The identified special purposes

  1. The identified special purposes in par 2 of the Originating Process are as follows:

(1) Conducting investigations in relation to any of the matters set out in affidavit of Geoffrey Newling sworn 24 February 2017 (the Newling affidavit) including, if thought by him to be appropriate, by:

(i) inspecting the books and records of the Company, excluding any files and working papers of the second defendant;

(ii) conducting examinations pursuant to sections 596A or 596B of the Act or obtaining orders for production pursuant to section 597(9) of the Act; and

(iii) requiring statements to be provided pursuant to section 475(2) of the Act; and

(2) commencing and pursuing any claim, including by commencing legal proceedings, that may be available to the Company or the Special Purpose Liquidator in relation to any of the matters set out in the Newling affidavit, including obtaining and considering legal advice in respect of any such claim;

(3) taking any steps as Special Purpose Liquidator in relation to any of the matters set out in the Newling affidavit, including by commencing legal proceedings to preserve or protect the assets of the Company, or the assets to which the Company or the Special Purpose Liquidator claim to be entitled, and whether or not those assets are in the possession of the Company; and

(4) exercising any powers conferred on the liquidator by sections 477 and 506(1)(b) of the Act, including the power to seek relief under s. 588FF of the Act, for the purposes set out in (i) to (iii) above, except for the powers contained in sub-section 477(1)(a) –(c) and 477(2)(f) and (g).

  1. Counsel for Mr Newling referred to the documentary material in evidence and submitted that there is a need to investigate five specific matters outlined in Mr Newling’s affidavit. Those matters may be grouped as follows.

  2. First, various payments made by the company to related parties which may be uncommercial transactions or otherwise liable to be impugned, namely:

  1. Matter 1: the payment on or about 29 January 2014 of $150,000 to Mr Gardner’s wife, Caroline Gardner, described in the company’s records as “Director’s Fees”, although she had never been a director of the company.

  2. Matter 2: various payments and transfers made from the company’s bank account to Mr Gardner’s company, Corporate Indemnity, including:

  1.  the payment, initially on a monthly basis from 2010, in the sum of $5,000, and thereafter irregularly;

  2. the alleged diversion (or “siphoning”) of part of premiums received from the company’s clients to Corporate Indemnity of $5,667.50 in around October/November;

  3. the transfer to Corporate Indemnity of $80,000 on 10 June 2015 and $49,500 on 12 June 2015.

  1. Mr Newling expressed his belief that there may be other payments from clients to the company that were treated in the same way as referred to in [34(b)] above, and that the company may have made other payments that were not legitimate company expenses.

  2. Matter 3: on 12 June 2015, Mr Gardner caused the company to enter into an assets sale agreement with Corporate Indemnity for a stated purchase price of $21,000 (cl 3.1). In addition, Corporate Indemnity, as the purchaser, agreed to assume liability under various equipment leases, which seem to have been the subject of higher purchase agreements (cl 5.4) and assumed liability for employee entitlements accruing before or after completion in respect of those employees of the company who accepted an offer of employment from Corporate Indemnity (cls 8.3, 8.6).

  3. Mr Newling expressed his concern that the sale appears to be at a gross undervalue. He also pointed to Corporate Indemnity having onsold its business to AssetInsure Pty Ltd on 30 September 2016 for $500,000 plus commission of 15 percent of gross written premiums for a specified period, a trailing commission for two years up to a maximum of $250,000 per annum and a profit share arrangement for two years. Counsel for Mr Newling acknowledged that the business sold by Corporate Indemnity to AssetInsure in 2016 may have comprised more than the business the subject of the sale by the company to Corporate Indemnity in 2015.

  4. Matter 4: Mr Newling referred to the purchase of new business premises at level 4, 142 Clarence Street, Sydney in about December 2012 by a company established by Mr Gardner, known as 4142 Clarence Street Pty Ltd. That company completed the purchase of that property in about March 2013. Mr Newling said that although he discussed the acquisition of the Clarence Street property with Mr Gardner, he left all arrangements to him. Mr Newling said that the purchase of that property was funded in part by money sourced from the company with the balance provided by a mortgage advance from ANZ Bank. There is evidence of various payments by the company totalling $121,105.29 between 28 January 2013 and 28 June 2013 which are described in the company’s ledger as “Loan unsecured – 4142 Clarence Street UT”. Notably, the RATA lodged by Mr Gardner with the liquidator does not include any debt from 4142 Clarence Street Pty Ltd as an asset of the company.

  5. Matter 5: Mr Newling referred to the various transactions on the days which immediately preceded Mr Gardner placing the company into voluntary liquidation on 12 June 2015, referred to at [9] above.

Just and beneficial to appoint a special purpose liquidator

  1. Counsel for Mr Newling submitted that it would be beneficial to the general body of creditors to have a special purpose liquidator appointed because the current liquidator is unfunded; he does not intend to take any further action to investigate the matters identified in Mr Newling’s affidavit; and the only chance of the creditors receiving a distribution will be if another liquidator is able to achieve recoveries for the company

  2. Mr Hancock has given an undertaking to the court that if appointed, he will not seek to recover his fees and expenses out of the funds or property of the company (a) other than in accordance with the terms of the funding deed; or (b) otherwise out of the assets of or, for the benefit of the, the company that he recovers or obtains during the course of his appointment as a special purpose liquidator of the company.

  3. Counsel for Mr Newling emphasised that as a result of the funding agreement, and the undertaking given by Mr Hancock (referred to above), the costs of the investigations and any action by the special purpose liquidator will be met by the funder and the company will be completely isolated from those costs. That may be accepted. As a consequence the two administrations will be financially independent of one another and there is no potential difficulty in allocation of financial resources between the two administrations.

  4. I am satisfied that there are aspects of the affairs of the company which require examination and investigation with a view to possible recoveries for creditors: Lo v Nielson & Moller at [19]. The evidence on this application supports the concerns expressed by Mr Newling. He is willing to finance investigations and proceedings by a liquidator, but only if that liquidator is not Mr Cummins. Mr Newling does not seek the removal of Mr Cummins, and it is not necessary to make findings regarding Mr Newling’s concern that Mr Cummins has not investigated various matters.

  5. I am satisfied that it will be beneficial to the administration of the winding up and the interests of the general body of creditors that a special purpose liquidator be appointed to undertake the work Mr Newling envisages in his affidavit. After repayment of the funder’s advances and payment of the premium to the funder, any recoveries obtained would benefit creditors as a whole. The funder has undertaken not to seek a position of superior claim upon recovery of monies under s 564 of the Corporations Act.

Approval of funding deed and costs agreement

  1. By interlocutory process filed in Court and made returnable instanter on 29 March 2017, contingent upon his appointment as an additional liquidator, Mr Hancock seeks orders under ss 477(2B) and 506(1A) of the Corporations Act, that approval be given for him to enter into the funding deed and a costs agreement with solicitors to enable him to carry out the special purposes. Mr Hancock anticipates that those agreements may end, or the obligations under them may be discharged, more than three months after the deed and the costs agreement are entered into.

  2. Section 506(1A) (a) provides, relevantly, that s 477(2B) applies in relation to the liquidator (in a voluntary winding up) as if he or she were a liquidator in a winding up in insolvency or by the Court.

  3. Although not referred to in his interlocutory process, the draft orders handed up by counsel for Mr Hancock include a declaration under s 511 of the Corporations Act that he would be justified in executing both the funding deed and the costs agreement. As already mentioned, Mr Newling also sought a declaration to this effect.

  4. Confidentiality orders are also sought by both Mr Newling and Mr Hancock in relation to the terms of the funding deed and the costs agreement.

Legal principles – s 477(2B)

  1. Under s 477(2)(a), a liquidator of a company may bring or defend any legal proceedings in the name of and on behalf of the company. Under s 477(2)(b), a liquidator of a company may appoint a solicitor to assist him in his or her duties.

  2. However, under section 477(2B), except with the approval of the Court, of the committee of inspection or a resolution of 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 3 months after the agreement is entered into, even if the term may end, or the obligations may be discharged, within those 3 months.

  3. As indicated, Mr Hancock anticipates that the funding arrangement with G&L Newling and the retainer of solicitors may last longer than 3 months.

  4. The funder, G&L Newling, is the largest creditor ($176,000). Mr Gardner’s company, Corporate Indemnity, is said be owed $151,000; and other creditors total $25,772. No committee of creditors has been appointed, and calling a meeting of creditors to obtain approval of the proposed deed would not be practical where the only other substantial creditor is connected with Mr Gardner.

  5. The object of the approval process under s 477(2B) is to ensure that contractual provisions as to timing do not cut across the general expectation that the winding up will proceed in an expeditious fashion as circumstances allow: Re HIH Insurance Ltd [2004] NSWSC 5 at [15] (Barrett J); Re HIH Overseas Holdings Ltd (inprov liq) [2001] NSWSC 426 at [5] (Barrett J).

  6. The following propositions can be derived from the authorities, when deciding whether to grant approval under s 477(2B):

  1. the controlling consideration is the interests of creditors concerned in the winding up;

  2. the court pays regard to the commercial judgment of the liquidator;

  3. although the court is not a rubber stamp for whatever the liquidator puts forward, it is not the role of the court to independently appraise the commercial desirability and commercial terms of the transaction,

  4. the court will generally not interfere unless there can be seen to be some lack of good faith, some error in law or principle, or some real and substantial ground for doubting the prudence of the liquidator's proposal.

See Re Spedley Securities Ltd (in liq) (1992) 9 ACSR 83 at 85-6; State Bank (NSW) v Turner Corporation Ltd (1994) 14 ACSR 480 at 483; Re HIH Insurance Ltd [2004] NSWSC 5 at [15] and Re G A Listing & Maintenance Pty Ltd (1994) 15 ACSR 308 at 311.

Funding Deed

  1. The proposed funding deed is in evidence and will be made a confidential exhibit. It is sufficient to outline the following. The obligations of G&L Newling are guaranteed by each of Mr Newling and Mrs Newling. The funder agrees to pay Mr Hancock’s costs and disbursements of the investigations, including public examinations, and any subsequent proceedings; any costs order made against Mr Hancock; any security for costs order made against Mr Hancock; and to indemnity Mr Hancock in respect of any adverse costs order made against him in any proceedings. The funding deed preserves the liquidator's control of the proceedings. The funding deed provides that any recoveries by Mr Hancock by way of asset realisations and settlements are to be paid into a “Trust Account” for the benefit of the funder and Mr Hancock, and to be applied in accordance with cl 3.2, which provides for the funder to be first repaid the funding advanced, next payment of the funder’s premium (being a specified percentage of the Resolution Sum (being the gross proceeds received by Mr Hancock by way of asset realisations and settlements, including interest and costs, less funding advanced) and the balance is to be paid to Mr Hancock as liquidator.

  2. The term “Trust Account” seems by its capitalisation to be intended as a defined term, but it is not defined in the funding deed. After this issue was raised with Mr Newling’s solicitors following the conclusion of oral argument, an amended funding deed was provided to the Court addressing this drafting deficiency. The amended funding deed has been marked Confidential Exhibit 2.

  3. Mr Hancock gave evidence that the terms of the draft funding deed were negotiated by him with the funder and expressed the view that the terms are within the normal range of such commercial agreements. He explained why he had not approached or sought funding from other possible litigation funders. The only other contributory of the company is Mr Gardner and the only other significant creditor is his company, Corporate Indemnity. The transactions to be investigated and potentially the subject of legal action are those between the company and Mr Gardner and/or his wife and/or Corporate Indemnity. None of the other creditors appear willing to provide funding to either Mr Cummins or an alternative liquidator to undertake investigations of the kind to which Mr Newling refers.

  4. Mr Hancock also expressed the view that the amounts which might be recovered are too modest to interest an external litigation funder. Moreover, in his experience an external litigation funder would require a success premium in excess of the premium to be paid under the proposed funding deed.

  5. Mr Hancock noted that there is no cap on the level of funding to be provided by the funder under the deed; nor does the funding deed require constant reporting to the funder, which Mr Hancock said can in certain circumstances increase the costs incurred by a liquidator and thereby reduce funds available to be distributed to creditors.

  6. There is evidence that Mrs Newling, the sole director of the funder, G&L Newling, has undertaken to Mr Hancock that the funder will not make any application under s 564 of the Corporations Act should recovery of funds be achieved through its funding of the special purpose liquidator’s investigations and legal actions, but will accept the premium to be paid to it in those circumstances under the funding deed.

  1. The question of whether a litigation funding agreement should be approved under s 477(2B) has been considered in a number of cases including Re HIH Insurance Group Ltd (2001) 19 ACLC 1,102; [2001] NSWSC 308 and Re Leigh [2006] NSWSC 315. In the latter case, Austin J referred to his earlier decision in Re ACN 076 673 875 Ltd (2002) 42 ACSR 296; [2002] NSWSC 578 and summarised the relevant factors as including:

  • the liquidator's prospects of success in the litigation;

  • the interests of creditors other than the proposed defendant;

  • possible oppression in the bringing of the proceedings;

  • the nature and complexity of the cause of action;

  • the extent to which the liquidator has canvassed other funding options;

  • the level of the funder's premium;

  • the liquidator's consultations with creditors; and

  • the risks involved in the claim (including the amount of costs likely to be incurred in the proposed litigation, the extent to which the funder is to contribute to those costs, and the extent to which the funder is to contribute to the defendant's costs if the action is not successful, or towards any order for security for costs).

  1. Not all of these factors can be assessed in the present case, since no decision has yet been made to commence proceedings against Mr Gardner or other possible defendants. Although counsel for Mr Newling submitted that there are reasonable prospects of a claim being made by the company or its liquidator against Mr Gardner, his wife and Corporate Indemnity, there is no draft pleading against which that submission may be assessed, and as Mr Hancock himself acknowledged in his affidavit of 24 March 2017, he would need to at least review the books and records of the company and interview Mr Gardner, before he could express an opinion as to whether the potential claims referred to in Mr Newling’s affidavit ought to be pursued.

  2. Nonetheless, it is in the interests of the general body of creditors, other than Corporate Indemnity, that Mr Hancock investigate the matters the subject of his appointment as special purpose liquidator and pursues actions that may be available to the company or the special purpose liquidator. This has the potential to deliver a recovery to the special purpose liquidator and increase the funds which would be available in the liquidation to discharge debts owed to all creditors generally, including those unsecured creditors with smaller claims. There is nothing to suggest any oppression if Mr Hancock decides to bring any proceedings arising from investigation of the transactions identified in Mr Newling’s affidavit.

  3. Mr Hancock has given evidence explaining why he has not extended the opportunity to fund the proceedings to the other creditors and that explanation appears, on its face, to be commercially reasonable. The only other substantial creditor is not disinterested. Mr Hancock has also given evidence that the alternative of funding by a commercial funder is not a realistic alternative having regard to the modest potential recoveries likely to be involved, and in any event, the terms of such funding would likely be less attractive than those offered by G&L Newling. The provision indemnifying Mr Hancock for adverse costs orders in the funding deed mitigates the risk to creditors from entry into the proceedings.

  4. I am satisfied that the proposed funding deed (as amended in Confidential Exhibit 2) is in the interests of the general body of creditors of the company.

Solicitor’s retainer

  1. Mr Hancock intends to engage Eakin McCaffery Cox as his solicitors to act on his behalf in relation to his investigations and any claims that he may bring as a result of those investigations. Those solicitors are also the solicitors for Mr Newling, and G&L Newling.

  2. There is nothing exceptional about the proposed retainer in the context of the proposed public examinations or ensuing commercial litigation which might be brought by the special purpose liquidator. Mr Hancock has expressed the view that the hourly rates charged by those solicitors and disbursement costs are within the normal range of small to medium law practices.

  3. There is no universal rule that prevents a liquidator from retaining lawyers who have previously acted for a contributory or creditor of the company. In Re Laurie Cottier Productions Pty Ltd (in liq) (1992) 9 ACSR 513 at 518, Waddell CJ in Eq said:

It is submitted for Mr Blondin that an inference that the liquidator is acting only in the interests of Macquarie Print is supported by the fact that both are represented by the same solicitor. It is said that there is necessarily a conflict of interest so far as that solicitor is concerned because matters might arise where they would owe a different duty to each of their clients. No example has been proposed. It is not unusual for the petitioning creditor's solicitor later to act for a liquidator. This is, in general, not desirable because a liquidator should be seen to be independent and to represent only the body of creditors. However, sometimes it may be unavoidable and there may be no conflict of interest. Each case must depend on its own circumstances. In the present case there are, I think, no consequences which are adverse to the liquidator.

  1. Authorities subsequent to Laurie Cottier have emphasised the undesirability of a liquidator retaining the lawyers for a secured creditor: Re Smarter Way(Aust) Pty Ltd (2000) 35 ACSR 595; [2000] VSC 408; Commonwealth Bank of Australia v Fernandez (2011) 81 ACSR 262; [2010] FCA 487. It has also been said that it is ‘generally undesirable’ for the liquidator to retain the same solicitors as a substantial creditor, however that is not ‘an absolute rule’: Re Kala Capital Pty Ltd (in liq) [2012] NSWSC 1073 at [29].

  2. More recently in Re ACN 151 726 224 Pty Ltd (in liq) (previously Ridley Capital Holdings Pty Ltd) [2016] NSWSC 1801 at [51], Black J summarised the position as follows:

… I accept, that the courts have regularly cautioned against an insolvency practitioner engaging the solicitors who act for a substantial creditor, although there is no absolute rule preventing that course. Those cautions have been put in strong terms. In Smarter Way (Aust) Pty Ltd v D’Aloia [2000] VSC 408; (2000) 35 ACSR 595 at [26], Byrne J observed that an administrator’s engagement of the solicitors retained by the appointing chargee “is, in general, undesirable”, where creditors are entitled to an administrator’s independent opinion. In Commonwealth Bank of Australia v Fernandez [2010] FCA 487; (2010) 81 ACSR 262 at [89], Finkelstein J observed that:

“In Smarter Way (Aust) Pty Ltd v D’Aloia (as admin of) Smarter Way (Aust) Pty Ltd [above] Byrne J spoke about the undesirability of an administrator engaging solicitors who act for a secured creditor: at [26]. He said that such a course was undesirable. I would go one step further than did Byrne J. Not only should an administrator not appoint solicitors retained by the secured creditor, they should not appoint solicitors who are on the secured creditor’s panel of solicitors. I think that solicitors on a secured creditor’s panel are just as likely to be perceived as loyal to the secured creditor as is the solicitor who happens to be retained by the secured creditor.”

  1. In Ridley Capital, Black J added the following observations at [53] – [54]:

In Re Colorado Products Pty Ltd (in prov liq) [2013] NSWSC 1613 at [14], I similarly observed that:

“… liquidators and provisional liquidators to remain conscious of the reservations expressed by Byrne J in Re Smarter Way (Aust) Pty Ltd; Smarter Way (Aust) Pty Ltd v D’Aloia (as admin of Smarter Way (Aust) Pty Ltd) [above] at [26] as to the retainer by an insolvency practitioner of solicitors who act for a secured creditor. On the other hand, I accept that in some circumstances it may be appropriate for a liquidator or provisional liquidator to retain solicitors who have previously been engaged by a secured creditor to act for a company in liquidation in proceedings, although considerable care needs to be taken in that regard and the liquidator will need to remain alert both to his obligations as an officer of the Court and to the possible need for independent advice: Re Mustang Marine Australia Services Pty Ltd [2012] NSWSC 620.”

In IND Energy Inc (a company incorporated in the British Virgin Islands) v Langdon & Rocke [2014] WASC 364 at [138], EM Heenan J similarly noted that, although there is no absolute bar preventing an administrator from seeking and obtaining legal advice from a solicitor who acts for a party interested in the company to which the administrator is appointed, “both Smarter Way and Commonwealth Bank of Australia v Fernandez incline strongly towards the unsuitability of such a practice.”

  1. The guiding principle is that whether such an arrangement offends the requirement for independence of the liquidator will depend upon the circumstances: Re Colorado Products Pty Limited (in prov liq) [2013] NSWSC 1613 at [14] (Black J); In the matter of Mustang Marine Australia Services Pty Limited [2012] NSWSC 620 at [7] (Black J).

  2. Although the funder is a substantial creditor of the company, I do not regard that as an impediment to Mr Hancock retaining the same solicitors as the contributory and the funder in the present case. As indicated, this is a relatively small liquidation. The company has only one other substantial creditor, which is related to Mr Gardner’s interests. There is nothing in the material before the Court to suggest that Mr Hancock’s independence is likely to be compromised by the fact that he intends to retain the same solicitors as the solicitors for the contributory and a creditor of the company. However, I would emphasise the caution expressed by Black J in Re Kala Capital at [29]. The Court expects the special purpose liquidator, as its officer, to maintain continued alertness to whether this position needs to change, that is, whether circumstances arise in the course of the retainer which might necessitate the liquidator seeking advice from another solicitor either on a particular aspect of the investigations or any proceedings, or more generally.

  3. I am satisfied that the proposed costs agreement is in the interests of creditors.

Should declaratory relief be granted?

  1. As mentioned, Mr Hancock also seeks a declaration under s 511 that he would be justified in executing, in his capacity as special purpose liquidator, the funding deed and the costs agreement in substantially the same form as the documents in Annexures A and B to the affidavit of Mr Hancock sworn 24 March 2017.

  2. No submissions by Mr Hancock were directed to the grant of a declaration under s 511. As indicated, this relief was only referred to in the draft orders provided to the Court on Mr Hancock’s application. The terms of the proposed declaration follow that made by Robb J in the matter of Ambient Advertising at [47].

  3. I decline to make the declaration sought, for the following reasons.

  4. First, there is an important distinction between a direction (or declaration) under s 511 and an approval under s 477(2B). The latter does not exonerate the liquidator from personal liability. As Brereton J explained in Re One.Tel Limited (2014) 99 ACSR 247; [2014] NSWSC 457 at [26]:

[26] … In reviewing the liquidator's proposal, the court pays due regard to his or her commercial judgment and knowledge of all of the circumstances of the liquidation, but satisfies itself that there is no error of law or ground for suspecting bad faith or impropriety, and evaluates whether the proposal is consistent with the expeditious and beneficial administration of the winding up. Importantly, the Court's approval is not an endorsement of the proposed agreement, but merely permission for the liquidator to exercise his or her own commercial judgment in the matter. Thus the approval confers, or completes, the liquidator's power to enter into the transaction, but does not amount to the court approving the transaction itself. The distinction is material, because it means that - unlike a direction under s 479(3) or s 511 - an approval under s 477(2A) or (2B) alone does not exonerate the liquidator from personal liability.

  1. Second, the Court will not usually give a direction under s 511 where the matter relates to a commercial decision, rather than a legal issue. Generally, what is required before the Court will give directions is a legal issue or an issue of power, propriety or reasonableness: Re Ansett Australia (No 3) (2002) 115 FCR 409; [2002] FCA 90; Re River City Motorway Pty Limited (Admin appointed) (Recs and Mgrs appointed) (2014) 225 FCR 541; [2014] FCA 1008.

  2. In the present case, no legal issue, question of power, or issue of power, propriety or reasonableness in the proposed conduct of Mr Hancock as special purpose liquidator has been identified. I am not persuaded that this is an appropriate case in which to give a direction under s 511.

  3. Third, while the Court has a discretion to determine substantive competing claims in an application for directions under s 511 by joining affected parties with competing interests and permitting the filing of claims for declaratory relief (Re MF Global Australia Ltd (in liq) [2012] 267 FLR 27; [2012] NSWSC 994 at [7]-[12]; Meadow Springs Fairway Resort Ltd (in liq) v Balanced Securities Ltd (2007) 25 ACLR 1433; [2007] FCA 1443), that course has not been taken in the present case. A case for declaratory relief has not been made out.

Orders

  1. Accordingly, I make the following orders:

  1. Order, pursuant to ss 7 and 8(1)(a) of the Courts Suppression and Non-Publication Orders Act 2010 (NSW), that:

  1. disclosure of annexure “A” to the confidential affidavit of Geoffrey Newling sworn 14 March 2017, annexures “A” and “B” to the affidavit of Geoffrey Trent Hancock sworn 24 March 2017 and confidential exhibit 2 be prohibited except by order of the Court made on application of which the plaintiff has been given at least three business days’ notice;

  2. that the documents referred to in (i) above be retained in the Court file in an envelope marked “Confidential: to be opened only by Order of the Court”; and

  3. that this Order take effect in the Commonwealth of Australia,

  1. Order pursuant to s 511 of the Corporations Act 2001 (Cth) (the Act) that Geoffrey Trent Hancock be appointed as an additional liquidator (the Special Purpose Liquidator) to the first defendant (Company) for the following purposes:

  1. Conducting investigations in relation to any of the matters set out in the affidavit of Geoffrey Newling sworn 24 February 2017 (the Newling affidavit) including, if thought by him to be appropriate, by:

  1. inspecting the books and records of the Company, excluding any files and working papers of the second defendant;

  2. conducting examinations pursuant to ss 596A and 596B of the Act or obtaining orders for production pursuant to s 597(9) of the Act; and

  3. requiring statements to be provided pursuant to s 475(2) of the Act;

  1. commencing and pursuing any claim, including by commencing legal proceedings, that may be available to the Company or the Special Purpose Liquidator in relation to any of the matters set out in the Newling affidavit, including obtaining and considering legal advice in respect of any such claim;

  2. taking any steps as Special Purpose Liquidator in relation to any of the matters set out in the Newling affidavit, including by commencing legal proceedings to preserve or protect the assets of the Company, or the assets to which the Company or the Special Purpose Liquidator claim to be entitled, and whether or not those assets are in the possession of the Company; and

  3. exercising any powers conferred on the liquidator by ss 477 and 506(1)(b) of the Act, including the power to seek relief under s 588FF of the Act, for the purposes set out in (i) to (iii) above, except for the powers contained in ss 477(1)(a)–(c) and 477(2)(f) and (g).

  1. Order the Special Purpose Liquidator to report to creditors of the Company and to the liquidator, Mr Cummins, in accordance with the requirements of the Act, on the terms of his appointment and subsequently once every three months during the course of his appointment;

  2. Order the second defendant (Mr Cummins):

  1. refrain from exercising any of the powers given to the Special Purpose Liquidator in Order 2 above, except with the prior written consent of the Special Purpose Liquidator (such consent not to be unreasonably withheld) or by leave of the Court; and

  2. use reasonable endeavours to assist the Special Purpose Liquidator to exercise the powers given to him on Order 2 above, including by providing any documents or information previously prepared or obtained by or for him in investigating or pursuing any claim in relation to any of the matters set out in the Newling affidavit;

  1. Order under s 477(2B) of the Act that approval be given for Mr Hancock, in his capacity as Special Purpose Liquidator of the Company, entering into:

  1. a funding deed in or substantially to the effect of the deed that is annexure “A” to the affidavit of Geoffrey Trent Hancock sworn 24 March 2017, including the amendment to the definition of “Trust Account” in the form contained in Exhibit 2; and

  2. a costs agreement in substantially the same form as the document in annexure “B” to that affidavit.

  1. Note the undertaking given to the Court by Mr Hancock that he will not look to or assert any entitlement to resort to funds or property of the Company, or to recover his fees and expenses in respect of his appointment from the Company, other than:

  1. in accordance with the terms of the funding deed; or

  2. out of the assets or benefits recovered by him during the course of his appointment as a Special Purpose Liquidator of the Company,

and in each case in accordance with s 473 of the Act.

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Decision last updated: 21 April 2017

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Cases Cited

27

Statutory Material Cited

4

In the matter of Commercial Indemnity Pty Ltd [2016] NSWSC 1125
AMCI (IO) P/L v Aquila Steel P/L; AMCI (BC) P/L v Belcoal P/L [2007] QSC 238
Lo v Nielsen & Moller (Autoglass) (NSW) Pty Ltd [2008] NSWSC 407