In the matter of ACN 152 546 453 Pty Ltd (Formerly Hemisphere Technologies Pty Ltd (In Liq))

Case •

[2020] NSWSC 270

•

16 March 2020

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: In the matter of ACN 152 546 453 Pty Ltd (Formerly Hemisphere Technologies Pty Ltd (In Liq)) [2020] NSWSC 270
Hearing dates: 16 March 2020
Date of orders: 16 March 2020
Decision date: 16 March 2020
Jurisdiction:Equity
Before: Emmett AJA
Decision:

1. Order nunc pro tunc with effect from 16 January 2020, pursuant to s 90-15 of the Insolvency Practice Schedule (Corporations) of the Corporations Act 2001 (Cth) (the Act), that the purposes for which Mr Giles Woodgate (Special Purpose Liquidator) was appointed as an additional liquidator of ACN 152 546 453 Pty Ltd (formerly known as Hemisphere Technologies Pty Ltd) (in liquidation) (the Company) on 29 June 2018 also include the following:
(a)   conducting investigations in relation to:
(i)   whether the receipt of funds by Zon No.1 Pty Ltd (ACN 604 836 259) and Spaki Properties No.1 Pty Ltd (ACN 604 836 393) in relation to the purchase of real property located at 2 Ada Avenue, Brookvale, NSW, 2100, gives rise to any claim by the Company in law or in equity or under statute;
(ii) whether any transactions between the Company and Alpha Nu Accountants Pty Ltd (ACN 168 996 978) in about December 2016 give rise to any claim in law or in equity or under statute, including whether any such transaction was a voidable transaction within the meaning of s 588FE of the Act;
(iii) whether any transactions between the Company and Portfolio IT Pty Ltd (ACN 157 931 569) between about April 2013 and June 2017 give rise to any claim in law or in equity or under statute, including whether any such transaction was a voidable transaction within the meaning of s 588FE of the Act;
(iv) whether any transactions between the Company and ACG Building Pty Ltd (ACN 144 650 411) (in liquidation) between about January 2013 and November 2016 give rise to any claim in law or in equity or under statute, including whether any such transaction was a voidable transaction within the meaning of s 588FE of the Act;
(v)   whether the valuation undertaken by dVT Consulting Pty Ltd (ACN 129 494 006) for the Company on about 15 December 2016 gives rise to a claim on behalf of the Company in contract, tort or under statute,
(together, the Further Matters) including, if thought by him to be appropriate, by:
(vi)   inspecting the books and records of the Company;
(vii) 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
(viii) 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 Further Matters, 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 Further Matters, 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 claims 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 section 588FF of the Act, for the purposes set out in Orders 1(a) to (c) above, except for the powers contained in ss 477(1)(a) – (c) and 477(2)(f) and (g) of the Act.
2.   Order that Order 2 of the orders made by Gleeson JA on 29 June 2018 be varied such that pursuant to section 90-15 of the Insolvency Practice Schedule (Corporations) of the Act, the defendants must:
(a)   refrain from exercising any of the powers of the Special Purpose Liquidator (as extended in these orders), except with the prior written consent of the Special Purpose Liquidator (such consent not to be unreasonably withheld) or by leave of the Court;
(b)   use their reasonable endeavours to assist the Special Purpose Liquidator to exercise the powers given to him (as extended in these orders), including by providing any documents or information previously prepared or obtained by him in investigating or pursuing any claim in relation to any of the Matters or the Further Matters.
3. Pursuant to s 588FF(3)(b) of the Act, extend the time for commencing any legal proceedings pursuant to s 588FF of the Act to 17 January 2021.
4. Approve, pursuant to s 477(2B) of the Act, the entry by the Special Purpose Liquidator into a Funding Deed in substantially the same terms as the draft Funding Deed marked as Exhibit 1 on 16 March 2020.
5. Order, pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), that, except by order of the Court, with the Plaintiff being provided 3 days’ notice of any such order being sought, disclosure of the documents contained in Confidential Exhibit “GGW-2” of the Affidavit of Giles Woodgate sworn 13 February 2020 and Exhibit 1 (the Confidential Documents) is prohibited on the grounds that they contain commercially confidential or privileged information arising out of the conduct of the investigations of the Special Purpose Liquidator.
6.   Note that the undertaking given to the Court by Mr Shane Anderton of Deutsch Miller that the solicitors for the Special Purpose Liquidator will retain the Confidential Documents for production, if required, on further order of the Court.
7.   Note the undertaking given by the Special Purpose Liquidator that he will not seek to recover his fees and expenses out of the funds or the property of the Company other than in accordance with the terms of the funding arrangement to be entered into with the plaintiff or otherwise out of the assets of or for the benefit of the Company that he recovers or obtains during the course of his appointment as additional liquidator of the Company.

Catchwords: CORPORATIONS — Winding up — Liquidators — Powers — Application for powers to enter litigation funding agreement and conduct investigations
Legislation Cited: Corporations Act 2001 (Cth), ss 475, 477, 506, 588FE, 588FF, 596A, 596B, 597, 1322
Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7
Insolvency Practice Schedule (Corporations), s 90-15
Cases Cited: In the matter of ACN 152 546 453 Pty Ltd (formerly Hemisphere Technologies Pty Ltd) (in liq) [2018] NSWSC 1002
In the matter of ACN 152 546 453 Pty Ltd (formerly Hemisphere Technologies Pty Ltd) (in liq) [2018] NSWSC 1224
Category:Principal judgment
Parties: Kaspersky Lab UK Ltd (Plaintiff)
Riad Tayeh (First Defendant)
Suelen McCallum (Second Defendant)
Giles Geoffrey Woodgate in his capacity as Special Purpose Liquidator of ACN 152 546 453 Pty Ltd (Formerly Hemisphere Technologies Pty Ltd (In Liq) (Applicant)
Representation:

Counsel:
P F Santucci (Applicant) ( Special Purpose Liquidator)

  Solicitors:
Deutsch Miller (Applicant) ( Special Purpose Liquidator)
File Number(s): 2017/00386177

EX TEMPORE Judgment

  1. HIS HONOUR: By interlocutory process filed on 16 January 2020, Mr Giles Woodgate (the Special Purpose Liquidator) applied, under s 90-15 of the Insolvency Practice Schedule (Corporations), ss 1322 and 588FF(3)(b) of the Corporations Act 2001 (Cth) (the Act) for orders in relation to the affairs of ACN 152 546 453 (Formerly Hemisphere Technologies Pty Ltd) (in liquidation) (the Company).

  2. The interlocutory process sought two substantive orders: first, that the powers conferred on him when he was appointed be extended to include further powers; second, that pursuant to s 588FF(3)(b) of the Act, the time granted for commencing any legal proceedings under the Act be extended by one year until 17 January 2021. By a further amended interlocutory process filed in Court on 17 February 2020, the Special Purpose Liquidator also sought further relief, being an order pursuant to s 477(2B) of the Act, approving the entry by him into a funding deed with Kaspersky Lab UK Ltd (Kaspersky).

  3. The relevant prayer in the interlocutory process erroneously referred to s 588FE rather than s 588FF as the section pursuant to which the proceedings were to be brought. It is clear that the reference to s 588FE was a typographical mistake. Accordingly, I consider that the application should be treated as having been brought on 16 January 2020 when the interlocutory process was filed. In the events that occurred, an amended interlocutory process was filed on 17 January 2020, amending the relevant prayer to refer to s 588FF rather than s 588FE.

  4. The Special Purpose Liquidator was appointed on 29 June 2018 by Gleeson JA. [1] The purpose of the Special Purpose Liquidator's appointment was to conduct certain investigations. On 6 July 2018, the Special Purpose Liquidator entered into a funding deed (the First Funding Deed) with Kaspersky. On 30 July 2019, Gleeson JA granted leave nunc pro tunc for the Special Purpose Liquidator to enter into the First Funding Deed. [2] Kaspersky claims to be a creditor of the Company and originally applied for the appointment of the Special Purpose Liquidator for certain specified purposes. It was pursuant to that application, that the Special Purpose Liquidator was appointed by Gleeson JA.

    1. See In the matter of ACN 152 546 453 Pty Ltd (formerly Hemisphere Technologies Pty Ltd) (in liq) [2018] NSWSC 1002.

    2. See In the matter of ACN 152 546 453 Pty Ltd (formerly Hemisphere Technologies Pty Ltd) (in liq) [2018] NSWSC 1224.

  5. Since the date of his appointment, the Special Purpose Liquidator has conducted a number of investigations, as a result of which he has identified a number of potential claims that he considers are available to the Company or warrant further investigation. Thus, following his appointment, the Special Purpose Liquidator conducted a number of investigations relating to the Company in August 2018 and September 2018. In addition, his staff reviewed certain records of the Company that were obtained by dVT Consulting Pty Ltd (dVT Consulting), a company to which I shall refer later. However, because of the limited scope of his powers as Special Purpose Liquidator, he is presently unable to pursue those claims.

  6. The Special Purpose Liquidator issued an initial report to creditors of the Company on 27 July 2018. On 19 September 2018, he issued a further report to the creditors, which provided an update of the progress of the winding up. On 11 December 2018, he issued a further report to creditors, which provided a summary of receipts and payments for the period from 29 June 2018 to 30 November 2018.

  7. It is desirable to say something about the circumstances surrounding the winding up of the Company. The Company apparently conducted the business of distributing antivirus and cyber security software in Australia, New Zealand and Pacific Islands for software developers, including products supplied by Kaspersky pursuant to a distribution agreement entered into in August 2011. On 25 August 2016, Kaspersky gave notice to the Company that it was exercising its right to terminate its distribution agreement with effect from 14 September 2016. On 19 October 2016, Kaspersky terminated the distribution agreement.

  8. Up until 14 October 2014, Mr Peter Phokos was a director, secretary and shareholder of the Company. He was replaced on that day as director, secretary and shareholder by Mr Philip Rodou. On 15 December 2016, the Company obtained from dVT Consulting a valuation report in respect of its business (the Valuation Report). The Valuation Report expressed the view that the valuation range of the Company's business as at 15 December 2016 was $368,451 before costs and realisation and administration and without claims of creditors. The valuation was based on the net tangible assets on a forced sale basis and noted that it was to be used to assist management in forming a view of the value of the Company for the purposes of negotiations in relation to the business value of the Company.

  9. Against that background, on 22 December 2016, the Company entered into an agreement with Hemisphere Technologies Australia Pty Ltd (HTA), which provided that the Company would sell to HTA certain assets for a purchase price of $370,000 plus GST. That price was paid into the Company's bank account on 22 December 2016. On 3 April 2018, HTA itself was wound up.

  10. On 17 January 2017, Mr Rodou, the sole member of the Company, resolved that the Company be wound up voluntarily, and appointed Mr Riad Tayeh and Ms Suelen McCallum as liquidators (the Liquidators). Because there was no declaration of solvency, the Company became subject to a creditors’ voluntary winding up. On 24 January 2017, Kaspersky submitted a proof of debt in the liquidation of the Company, in the amount $3,988,117.31.

  11. At a meeting of the creditors of the Company, held on 27 January 2017, Kaspersky proposed a resolution that an alternative liquidator be appointed in place of the Liquidators. That resolution was defeated on a poll.

  12. In his reasons of 29 June 2018, Gleeson JA indicated that the Liquidators were holding funds of approximately $93,000,[3] and that the amount of their unpaid remuneration and estimated disbursements to the finalisation of the liquidation was $38,700. That would result in an estimated return to creditors of less than one cent in the dollar.

    3. In the matter of ACN 152 546 453 Pty Ltd (formerly Hemisphere Technologies Pty Ltd) (in liq) [2018] NSWSC 1002, [21].

  13. On 22 May 2019, following his appointment, the Special Purpose Liquidator commenced examination proceedings in this Court. Five summonses for examination were issued to Mr Tayeh, Ms McCallum, Mr Phokos, Mr Nicholas Kaperonis, an accountant employed by Alpha Nu Accountants Pty Ltd (Alpha Nu), who were the former external accountants of the Company, and Mr Andrew Mamonitis, a former employee of the Company. In addition, thirteen orders for production were issued in the examination proceedings to various entities, including examinees.

  14. Public examinations of Mr Tayeh, Ms McCallum, Mr Phokos, Mr Kaperonis were conducted in August 2019. On 21 November 2019, the Special Purpose Liquidator submitted a report to Kaspersky, which set out a summary of the information he had gathered from the public examinations and the orders for production, and the nature of potential claims available to the Company. A copy of his report is in evidence. However, it contains confidential information, and it is proposed that orders be made that the contents of the report not be publicly available.

  15. As a result of the investigations that he has conducted, the Special Purpose Liquidator identified a number of potential claims that he considers are available to the Company which warrant further investigation, but because of the limited scope of his powers under the orders made by Gleeson JA, he is presently unable to pursue them. The potential claims relate to various transactions involving the Company, and one or other of HTA, Zon No.1 Pty Ltd (Zon No.1), Spaki Properties No.1 Pty Ltd (Spaki Properties), Alpha Nu, dVT Consulting, Portfolio IT Pty Ltd (Portfolio IT), and ACG Building Pty Ltd (ACG Building).

  16. So far as the Special Purpose Liquidator is aware, none of those potential claims has been pursued by the Liquidators, who have not conducted public examinations. In various reports, the Liquidators identified possible breaches by the director and former director of the Company. However, they were not in a position to pursue the voidable transactions or other recoveries to their full potential without additional funding from creditors. The Liquidators invited expressions of interest from creditors who may be interested in funding further investigation; however, there was no interest expressed.

  17. Further, the Special Purpose Liquidator has formed the view that it is possible that the Liquidators are in a position of actual or possible conflict of interest, having regard to the fact that the Valuation Report was prepared by Ms McCallum. In their declaration of independence, relevant relationships and indemnities, the Liquidators disclosed that, prior to their appointment, dVT Consulting was engaged by the Company to provide it with the Valuation Report, and that dVT Consulting was paid some $10,000 for its services in connection with the Valuation Report. The Valuation Report formed the basis for the Company entering into the agreement with HTA for the sale of the Company's business on 22 December 2016 before HTA itself was placed in liquidation.

  18. The Special Purpose Liquidator has formed the view that the relation-back day, in relation to the winding up of the Company, is 17 January 2017. Accordingly, any voidable transaction claims against any of the relevant companies must be brought on or before 17 January 2020.

  19. The Special Purpose Liquidator has formed the view that Alpha Nu were responsible for referring to dVT Consulting the work consisting of the obtaining of the Valuation Report, and, ultimately, securing the appointment of the Liquidators. On 19 January 2017, the Liquidators engaged Alpha Nu to undertake work in relation to the liquidation of the Company.

  20. The Special Purpose Liquidator has formed the view that the Company became insolvent on or about 30 September 2016 and, in his November 2019 report to creditors, he identified an unfair preference claim in respect of a payment of $35,000 made by the Company to Alpha Nu on 22 December 2016. He has formed the view that the payment to Alpha Nu constitutes a voidable transaction within the meaning of s 588FE of the Act and that, if such a claim were brought against Alpha Nu, there would be good prospects of success. However, the scope of his current powers do not allow him to commence proceedings in respect of that transaction.

  21. dVT Consulting provided the Valuation Report to the Company on 15 December 2016. As I have said, the author was Ms McCallum, and the Valuation Report expressed the view that the value of the Company's business assets as at 15 December 2016 was $368,451. The Company entered into the sale agreement on 22 December 2016 for a price of $370,000.   The Special Purpose Liquidator has obtained a report by Lonergan Edwards of 9 April 2018, which concludes that the Valuation Report understated the commercial value of the assets of the Company, and that the indicative value of the business operated by the Company, as at the time of Valuation Report, was between $775,000 and $930,000. On that basis, the Special Purpose Liquidator considers that the Company may have a potential claim against dVT Consulting for breach of contract or negligence in preparing the Valuation Report. The Special Purpose Liquidator’s present powers do not extend to making such a claim.

  22. Zon No.1 was registered on 18 March 2015. Mr Phokos has been the sole director and Company secretary since that time. He is the sole member. Spaki Properties was also registered on the same day. Mr Phokos has been the sole director and secretary and member of Spaki Properties since that time.

  23. On 9 April 2015 and 27 April 2015, the Company made two payments, totalling $160,000, to a real estate agent. The payments were made in relation to the purchase of property situated in Brookvale, NSW by Zon No. 1 and Spaki Properties for a purchase price of $1,600,000. The Special Purpose Liquidator has been unable to find any records of the Company explaining the nature of the payments made in connection with the purchase of the Brookvale property by Zon No. 1 and Spaki Properties. A possible claim against Zon No.  1 and Sparki Properties for money had and received or knowing receipt of trust property requires further investigation. However, the Special Purpose Liquidator’s current powers do not extend to such an investigation.

  24. Portfolio IT was registered on 23 April 2012. Mr Phokos has been the sole director and secretary of Portfolio IT since 24 April 2012 and is currently the only member. Portfolio IT was deregistered on 8 September 2019. However during the period from 23 April 2013 to 16 January 2017, a total of $10,875,410 was paid by the Company to bank accounts of Portfolio IT. Portfolio IT's only source of income seems to have been derived from the Company and, at the time when it was placed into liquidation, the Company was making weekly payments of $42,900 to Portfolio IT. It appears that Portfolio IT sublet premises in Brookvale to the Company and the payments may or may not have been related to rent for the occupation of those premises. On the basis of the material available to the Special Purpose Liquidator at present, he is unable to determine whether the payments made to Portfolio IT were made in good faith and for a proper purpose, or conferred some benefit on the Company. At present his powers do not extend to inquiring into those matters.

  1. ACG Building was registered on 16 June 2010. Mr Phokos was the sole director and secretary since 27 September 2010. Mr Phokos' wife was then the sole member of ACG Building since 7 August 2017. ACG Building was placed into liquidation on 30 January 2019. During the period from 23 January 2013 to 30 November 2016, payments totalling $4,982,106 were made from the Company's accounts to ACG Building. The Special Purpose Liquidator cannot yet determine whether those payments were made in good faith or for a proper purposes or conferred any benefit on the Company. However his powers do not enable him to inquire further into those matters.

  2. Based on his present investigations, the Special Purpose Liquidator is of the opinion that the sale pursuant to the asset sale agreement to HTA was at undervalue. However, at present he is not yet able to determine the extent to which there was a failure of good faith or a proper purpose when the agreement was entered into. He is presently of the opinion that the agreement may constitute a voidable transaction within the meaning of s 588FE of the Act, but is yet to reach the opinion that it resulted in a breach of the statutory fiduciary duties owed to the Company by any of its directors or officers. His opinion may change following further consideration and investigation but at present his powers do not extend to examining those matters.

  3. At the time when the Special Purpose Liquidator was appointed, some 18 months had elapsed since the relation-back day. I have indicated already the investigations that have been carried out by the Special Purpose Liquidator. During the course of those investigations, the Special Purpose Liquidator experienced delays for several reasons. First, there was considerable difficulty associated with parties complying with the orders for production of documents. For example, no information was produced in response to the orders for production issued to ACG Building and Mr Phokos. Only a handful of bank statements were produced in response to the order for production issued to Portfolio IT. Neither Zon No. 1 nor Sparki Properties produced documents until after the public examinations had been completed. That limited the use to which those documents could be put. Alpha Nu originally required payment of a sum of $10,767.43 for the production of documents; however, following questions posed during public examinations about the basis for the charges, it appears that Alpha Nu is no longer pressing for payment.

  4. The report by the Special Purpose Liquidator of 21 November 2019 identified the potential claims available to the Company and provided an estimate of costs to pursue the potential claims. Following that report, the Special Purpose Liquidator engaged in discussions with the solicitors acting for Kaspersky to determine whether Kaspersky would be prepared to continue to fund him and the Company for the purposes of pursuing the potential claims that I have identified. The discussions with Kaspersky took considerable time given the complexity and nature of the potential claims and the fact that the person issuing instructions for Kaspersky is based in Moscow in Russia. It was not until early January 2020 that Kaspersky agreed to continue to fund the Company and the Special Purpose Liquidator for the purpose of pursuing the potential claims.

  5. Proceedings in relation to any voidable transaction claims or an application for the extension of time within which to bring such claims must be brought on or before 17 January 2020. Once Kaspersky confirmed by email that it was prepared to provide further funding, this application was filed on behalf of the Special Purpose Liquidator.

  6. The complexity of the affairs of the Company and the lack of books and records has had a significant impact on the capacity of the Special Purpose Liquidator to complete his investigations after the stage when his November 19 report was provided. The matters for which he was appointed to investigate involved a complex matrix of third parties relationships which made it difficult for him to complete his investigation in the absence of full compliance with orders for production. That resulted in the investigations taking much longer than might otherwise have been the case.

  7. The books and records of the Company are deficient and otherwise of poor quality. Mr Phokos explained the lack of records as being the result of a flood at the Company's Brookvale premises. Be that as it may, the Special Purpose Liquidator was faced with considerable difficulty in the absence of proper books and records.

  8. In the absence of prima facie evidence that the payments to Portfolio IT were made in good faith, or for proper purpose, or conferred any benefit on the Company the Special Purpose Liquidator had to engage in tracing exercises to determine, to endeavour to determine the legitimacy or otherwise of the payments. There were similar difficulties concerning several other third party entities related to Mr Phokos and to which large sums of money had been paid, including ACG Building. As a result of the deficiencies in the records available, the Special Purpose Liquidator has not been able to determine whether the payments to Portfolio IT constitute a voidable transaction within the meaning of s 588FE of the Act.

  9. The Special Purpose Liquidator has formed the view that no prejudice would result from the Court granting an extension of time within which to pursue voidable transaction claims against HTA, ACG Building, Alpha Nu or Portfolio IT. He considers that it is in the best interests of creditors to have those matters investigated and to have power to commence proceedings if necessary.

  10. All of the prospective defendants in relation to the claims that have been identified have been served with notice of the present application. None of them appeared when the matter was called either before Gleeson JA earlier today or when the matter was referred to me later in the morning.

  11. In all of the circumstances outlined above, I consider that it is appropriate to make orders along the lines of the orders sought in relation to the extension of the powers of the Special Purpose Liquidator and the extension of time for the commencement of legal proceedings pursuant to s 588FF of the Act.

  12. Kaspersky has now agreed to provide the Special Purpose Liquidator with further funding in relation to the possible further claims under a new funding deed (the Second Funding Deed). The operation of the proposed Second Funding Deed may well end more than three months after it is entered into and, accordingly, the Special Purpose Liquidator seeks an order under s 477(2B) of the Act approving the entry into of the proposed Second Funding Deed with Kaspersky.

  13. Having regard to the nature of the claims that might be made and the fact that, at the first meeting of creditors on 27 January 2017, the creditors voted against the resolution proposed by Kaspersky to appoint an alternative liquidator, he is of the opinion that calling a meeting of creditors to approve the Second Funding Deed would not be practical.

  14. As indicated, the Liquidators invited the Company's creditors to provide funding for a recovery action. Kaspersky is the only creditor prepared to provide funding.

  15. The Special Purpose Liquidator has been involved in the negotiation of and entry into various funding agreements with commercial litigation funders and government litigation funders. In his experience, the terms of any funding offered by commercial litigation funders would be less favourable to the Company than that which has been offered by Kaspersky. A commercial litigation funder will normally seek to recover a funding premium in the order of 25 per cent to 40 per cent of the value of the recoveries whereas the amount sought by Kaspersky is only 15 per cent. The terms of the proposed funding deed are substantially similar to those approved by Gleeson JA in his orders of 30 July 2018.

  16. The Special Purpose Liquidator repeats his undertakings that he will not seek to recover his fees and expenses out of the funds or property of the Company other than in accordance with the terms of the First Funding Deed and the Second Funding Deed or otherwise out of the assets of the benefit of the Company that he recovers or obtains during the course of his appointment as Special Purpose Liquidator.

  17. He is of the opinion that the Second Funding Deed will facilitate the recovery of assets of and for the benefit of the Company and its creditors and the prosecution of the specific matters identified at the time of his appointment. He is therefore of the opinion that entry into the Second Funding Deed will be in the interests of the creditors of the Company as a whole.

  18. In all of the circumstances, I consider that it is appropriate to give approval pursuant to s 477(2B) of the Act for the Special Purpose Liquidator to enter into the proposed Second Funding Deed in the form of Exhibit 1, tendered before me today. Accordingly, I propose to make orders to the effect of those sought by the Special Purpose Liquidator.

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Endnotes

Decision last updated: 19 March 2020

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