In the matter of Banksia Securities Limited (in liq) (recs and mgrs apptd)

[2025] NSWSC 1217

Supreme Court

New South Wales

Medium Neutral Citation:

In the matter of Banksia Securities Limited (in liq) (recs and mgrs apptd) [2025] NSWSC 1217

Hearing dates:

2 - 3 October 2025

Date of orders:

17 October 2025

Decision date:

17 October 2025

Jurisdiction:

Equity - Corporations List

Before:

Black J

Decision:

Decline leave to bring proceedings against Court-appointed special purpose receiver; release and discharge the special purpose receiver, with the exception of limited further work; approve special purpose receiver’s remuneration and anticipated remuneration to the completion of the limited further work in the receivership; reserve the question of costs.

Catchwords:

CORPORATIONS — receivers and managers — special purpose receiver — application for release and discharge of receivership — where substantive work of the receivership complete — where approval sought for renumeration in respect of completed work and limited further work — applications for release and discharge and renumeration approved

CIVIL PROCEDURE — whether leave required to bring proceedings against court-appointed receiver in another court — where special purpose receiver appointed by Supreme Court of NSW — held that leave required to commence proceedings — decline to grant leave to bring the proposed proceedings

Legislation Cited:

- Civil Procedure Act (Vic), ss 29–31

- Corporations Act 2001 (Cth), s 283HB

- Court Suppression and Non-Publication Orders Act 2010 (NSW)

- Evidence Act 1995 (NSW), s 91

- Uniform Civil Procedure Rules 2005 (NSW), r 26.5

Cases Cited:

- Australian Executor Trustees Ltd v Provident Capital Ltd (2012) 203 FCR 461

- Australian Securities and Investments Commission v Letten (No 28) [2020] FCA 892

- Australian Securities and Investments Commission v Letten (No 29) [2023] FCA 315

- Australian Securities and Investments Commission v Piggott Wood & Baker (a firm) (No 7) [2023] FCA 193

- Bolitho v Banksia Securities Ltd (No 4) [2014] VSC 582

- Bolitho v Banksia Securities Ltd(No 5) (2019) 60 VR 486; [2019] VSC 554

- Bolitho v Banksia Securities Ltd (No 18) (remitter) [2021] 69 VR 28; [2021] VSC 666

- Botsman v Bolitho (2018) 57 VR 68; [2018] VSCA 278

- Eighty Second Agenda Pty Ltd v Handberg (2014) 32 ACLC 14081; [2014] VSC 665

- Gippsreal Ltd v Kenny (2016) 52 VR 149, [2016] VSCA 319

- Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd(No 4) [2013] VSC 14

- Kenny v Gippsreal Ltd [2015] VSC 284

- Lindholm v Elliott [2023] VSC 442

- Lindholm v Elliott (No 2) [2023] VSC 572

- Mamone v Pantzer (2001) 36 ACSR 743; [2001] NSWSC 26

- O’Shane v Harbour Radio Pty Ltd (2023) 85 NSWLR 698; [2013] NSWCA 315

- Re Australasian Barrister Chambers Pty Ltd (in liq) [2017] NSWSC 245

- Re Australasian Barrister Chambers Pty Ltd (in liq) [2017] NSWSC 597

- Re Banksia Securities Ltd (in liq) (recs and mgrs apptd) [2015] NSWSC 1378

- Re Banksia Securities Ltd (in liq) (recs and mgrs apptd) [2016] NSWSC 357

- Re Banksia Securities Ltd (recs and mgrs apptd) (in liq) (No 2) [2018] VSC 47

- Re Banksia Securities Ltd (in liq) (recs and mgrs apptd) [2019] NSWSC 136

- Re Banksia Securities Ltd (in liq) (recs and mgrs apptd) [2025] NSWSC 697

- Re Idylic Solutions Pty Ltd [2018] NSWSC 700

- Re Siromath Pty Ltd (No 1) (1991) 9 ACLC 1580

- Re St Gregory’s Armenian School (in liq) (2012) 92 ACSR 588; [2012] NSWSC 1215

- Re Zita (a solicitor) [2022] VSC 354

- Reichel v MaGrath (1889) 14 App Cas 665

- Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310

- Sydlow Pty Ltd (in liq) v TG Kotselas Pty Ltd (1996) 65 FCR 234

- Vrantsidis v Milekovic [2025] VSC 255

- Wayland as Liquidator of ABC Container Line NV (in liq) (2005) 52 ACSR 750; [2005] NSWSC 1

Texts Cited:

AS Bell, Forum Shopping and Venue in Transnational Litigation, [4.134]–[4.135], [4.230]

Category:

Procedural rulings

Parties:

John Lindholm (Special Purpose Receiver)
Wendy Botsman and Others (Interveners)

Representation:

Counsel:
J Redwood SC / M Grady (Special Purpose Receiver)
M Izzo SC / C Trahanas (Contradictor)
B Orow (Interveners)

Solicitors:
Maddocks (Special Purpose Receiver)
Hartwell Legal (Interveners)

File Number(s):

2015/252832

JUDGMENT

Nature of the application and background

1. By a Third Further Amended Interlocutory Process filed on 3 October 2025, Mr Lindholm as Special Purpose Receiver (“SPR”) of Banksia Securities Ltd (recs and mgrs apptd) (in liq) (“BSL”) seeks an order that he be discharged from appointment as SPR and discharged and released from liabilities in connection with that appointment, including liabilities arising out of certain proceedings in the Supreme Court of Victoria (“Banksia Proceedings”). That relief is sought subject to an exclusion to permit him to complete a final distribution to debenture holders of funds that he presently holds and any further funds that he may receive in connection with the receivership. Second, the SPR seeks an ancillary order that the requirement under r 26.5 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) for accounts be dispensed with. Third, the SPR seeks an order that he be appointed as receiver to any dividend or distribution from the liquidation of Lehman Brothers Australia Ltd (“Lehman”) for the purpose of getting in and distributing such funds to the debenture holders of BSL as part of any final distribution made by the SPR. Fourth, the SPR seeks orders approving his past and prospective remuneration in respect of the completion of the receivership.

2. By a Notice of Motion filed on 5 September 2025, Mrs Botsman and 28 other persons (“Victorian Applicants”) who are named in a schedule to an appearance filed by them in these proceedings on 30 July 2025 and are also named as Plaintiffs in a Summons dated 4 July 2025 filed in proceedings brought by them in the Supreme Court of Victoria (“Section 29 Proceeding”), seek the Court’s leave, nunc pro tunc, to continue the Section 29 Proceeding.

3. Three, or possibly four, substantial questions arise in respect of the application brought by the Victorian Applicants and the release sought by the SPR. The first question is whether, as the Victorian Applicants contend, they can bring the Section 29 Proceeding against the SPR, although he is a receiver appointed by this Court under s 283HB of the Corporations Act 2001 (Cth) (“Act”), without leave of the Court. Second, Dr Orow, who appears for the Victorian Applicants, identifies a related question whether the answer to the first question is different because of the nature of the Section 29 Proceeding, where that proceeding is brought by the Victorian Applicants under s 29 of the Civil Procedure Act (Vic) (“CPA”) or, as he seeks to re-characterise it, is an invitation to the Supreme Court of Victoria to make orders against the Respondents to that proceeding, including the SPR, of its own motion. I will conclude below that the answer to both those questions is no, for the reasons that I set out below. The third question is whether the Victorian Applicants should be granted leave to continue the Victorian proceedings. I will conclude, for the reasons set out below, that the Victorian Applicants should not be granted that leave. The fourth question is whether the SPR should now be released, which raises a contested question as to whether the Court has power to make such an order. That question is otherwise consequential on the answer to the first three questions where no other claims are pending or threatened against the SPR and the receivership is substantially complete.

4. The Court appointed a contradictor (“Contradictor”) in this application, Mr Izzo SC, with who Ms Trahanas appeared. They made helpful submissions as to relevant issues, outlining the Contradictor’s reasoning as to those issues. The Contradictor was largely supportive of the ultimate position taken by the SPR, which it considered was in the interests of debenture holders generally, although it took issue with one aspect of the SPR’s reasoning which I address below. I address the Contradictor’s submissions below.

5. I recognise that Dr Orow noted that the Contradictor’s submissions largely support the position and submissions made by the SPR. That position was only partly true, so far as the Contradictor departed from the SPR’s view as to, for example, abuse of process. Mr Izzo also made clear that, rightly, the Contradictor understood its role to be directed to protecting debenture holders’ interests, particularly as to any matter where there may be a potential conflict between the interest of the SPR and the interest of debenture holders. It is properly open to a contradictor, once it has considered available arguments to the contrary and concludes that a step is in the interests of the debenture holders or is legally justified, to advise the Court of its view. There can be no suggestion that the Contradictor did not properly undertake its role here.

6. I now turn to the factual background to the application, which I have drawn in part from the many earlier decisions in which this Court has addressed issues arising in the special purpose receivership of BSL, most recently my decision in Re Banksia Securities Ltd (in liq) (recs and mgrs apptd) [2025] NSWSC 697 (“BSL 2025”). BSL operated as a non-bank lender and raised monies from the public by issuing debentures to investors pursuant to prospectuses and product disclosure statements and advanced funds raised from debenture holders to third party borrowers for property investment and development purposes. BSL failed following a merger with another non-bank lender. Representative proceedings were then brought by Mr Laurence Bolitho against, inter alia, BSL (“Bolitho Proceedings”) which, inter alia, claimed damages in respect of misleading statements and omissions in various prospectuses issued by BSL and also claimed damages under s 283F of the Act for breach of BSL’s obligation, under s 283BB of the Act, to conduct its business in a proper and efficient manner in accordance with the trust deed. The receivers of BSL also brought proceedings (“BSL Proceedings”) against, inter alia, The Trust Company (Nominees) Limited (“TrustCo”) in the Supreme Court of Victoria. The outcome of the two proceedings, and any settlement of them, was obviously connected I will refer to them together as the “Banksia Proceedings.”

7. By orders made on 30 September 2015 and varied on 29 February 2016, this Court appointed Mr Lindholm and Mr McCluskey (who has since retired) as joint and several special purpose receivers of specified property of BSL, including BSL’s rights and entitlements in proceedings in the BSL Proceedings. Those orders were made pursuant to s 283HB of the Act, in the circumstances summarised in the judgments in Re Banksia Securities Ltd (in liq) (recs and mgrs apptd) [2015] NSWSC 1378 and Re Banksia Securities Ltd (in liq) (recs and mgrs apptd) [2016] NSWSC 357 (“BSL 2016”).

8. The Banksia Proceedings were subsequently settled as against TrustCo, subject to Court approval and later against other parties (“Banksia Settlement”). An application to approve the settlement was heard on 30 January 2018 (“Approval Hearing”) in the Supreme Court of Victoria where the Court made orders approving that settlement, for reasons set out in Re Banksia Securities Ltd (recs and mgrs apptd) (in liq) (No 2) [2018] VSC 47. Mrs Botsman, who was a debenture holder, appealed against that decision in the Court of Appeal of the Supreme Court of Victoria and sought orders setting aside the approval of that settlement. By its judgment in Botsman v Bolitho (2018) 57 VR 68; [2018] VSCA 278 (“Bolitho VSCA”), the Court of Appeal of the Supreme Court of Victoria declined to set aside the settlement but allowed Mrs Botsman’s appeal against a litigation funding commission payable to a company (“AFP”) associated with the late Mr Mark Elliott and the legal costs payable in the Bolitho Proceedings and remitted the proceedings as to that commission and legal costs and other matters (“Remitter”) to another judge of the Supreme Court of Victoria.

9. Two of the Counsel who appeared in the Bolitho Proceedings, Mr Norman O’Bryan and Mr Michael Symons; the solicitor who had represented Mr Bolitho and his firm, Mr Anthony Zita and Portfolio Law; Mr Alex Elliott, who is the late Mr Mark Elliott’s son; and a costs consultant, Mr Trimbos, were subsequently joined as defendants to the Remitter. By his judgment in Bolitho v Banksia Securities Ltd (No 18) (remitter) [2021] 69 VR 28 (in an abbreviated version); [2021] VSC 666 (in a longer version) (“Remitter Judgment”), Dixon J reviewed, inter alia, the Court’s earlier decision in Bolitho v Banksia Securities Ltd (No 4) [2014] VSC 582 (“Bolitho No 4”) relating to Mr Elliott’s attempt to act, broadly, as both solicitor in and funder to the Bolitho Proceedings; the initial partial settlement of the Banksia Proceedings and the subsequent TrustCo Settlement, including the approach taken by Mr Elliott in negotiating the relevant settlement deed (“TrustCo Settlement Deed”); the manner in which the Approval Hearing was conducted; and the appeal from the approval of the settlement, including the improper steps that had been taken by AFP and Mr Elliott in seeking to dissuade Mrs Botsman from pursuing that appeal. His Honour also observed (at [3]) and I keep firmly in mind that:

“The spoils, had they been obtained, would have been ill-gotten. The conduct in winning and dividing them was dishonourable. The truth was obfuscated. The perpetrators went to extraordinary lengths to conceal their misdeeds. Others stood by, failing in their duty to protect. About 16,000 elderly investors in a failed company had suffered substantial financial loss. The process of exposing misdeeds was laborious, costly and delayed. The victim was the proper administration of justice.”

I also recognise that, as Dixon J plainly also recognised, the victims of the conduct were also the debenture holders, in financial terms, substantial delay and likely emotional distress.

10. I also bear in mind that Dixon J recognised (at [2129]) that at least one matter, namely whether the legal representatives for some of the parties in the Remitter had appropriately discharged their obligations to the Court, went beyond the scope of the Remitter. It appears that matter is to be pursued in the Section 29 Proceeding in a manner which is not affected by the outcome of this application so far as it concerns the SPR. In the result, Dixon J held that the Defendants to the Remitter must jointly and severally pay compensation of $11,700,127, as to which post judgment interest of $713,625.65 had accrued as at 27 July 2022 and continued to accrue to the SPR for the benefit of BSL debenture holders and costs under various indemnity costs orders made in favour of the SPR. An appeal from that decision by one party was subsequently dismissed for want of prosecution.

11. It is not clear that the Victorian Applicants go so far, in this application or in the Section 29 Proceeding, as to assert that the SPR, rather than AFP, Mr Elliott and Counsel and the solicitor acting for Mr Bolitho in those proceedings, all of which were Defendants in the Remitter Proceedings, were party to the attempted “division of the spoils” or to the dishonourable conduct or obfuscation or concealment to which Dixon J referred, or had “stood by” in the manner to which his Honour also referred. Generally, Dr Orow was conscious of his professional obligations and refrained from directly making such an allegation. I should record that the minimal evidence led by the Victorian Applicants in this application provided no basis for such an allegation.

12. Subsequently, in Re Banksia Securities Ltd (recs and mgrs apptd) (in liq) [2022] NSWSC 1106 (“BSL 2022”), I directed the SPR that he was then justified in not accepting a global settlement proposal put by the judgment debtors in respect of the Remitter Judgment. In my further judgment in BSL 2025, I made orders directing the SPR that, as events had developed, he was now justified in settling the remaining proceedings.

13. As I will note below, Mrs Botsman and her son had expressed discontent as to aspects of the special purpose receivership for a significant time. Mr Botsman provided a lengthy draft of the claims to be made in the Section 29 Proceeding to the SPR, presumably on Mrs Botsman’s behalf, on 3 December 2024, although that draft advanced wider claims than were later brought. As I noted above, Mrs Botsman and the other Victorian Applicants have now commenced those proceedings against, inter alia, the SPR, and I will address the relief they seek in those proceedings below. The issue raised in this application, as to the status of those proceedings, will determine whether a final distribution can now be made to BSL’s debenture holders or whether that distribution will be further delayed, in whole or in part, likely for a substantial further period.

Affidavit evidence

14. The SPR reads detailed affidavit evidence and tenders several exhibits in this application, with some of those affidavits and some of those exhibits being read or tendered subject to orders made under the Court Suppression and Non-Publication Orders Act 2010 (NSW). I will now refer to those affidavits and relevant exhibits, although I will only deal with the affidavits and exhibits that are the subject of suppression orders in relatively general terms

15. By an affidavit dated 4 December 2024, Mr Kingston, a solicitor acting for the SPR, exhibited correspondence with, inter alia, the Australian Securities and Investments Commission (“ASIC”) and with Mr Botsman in respect of the then proposed form of the Section 29 Proceeding. By his further affidavit dated 18 December 2024, Mr Kingston addressed further correspondence with Mr Botsman, which included Mr Botsman’s contention that this application should be determined in the Supreme Court of Victoria rather than in this Court, and with ASIC.

16. By his affidavit dated 14 February 2025, the SPR referred to the then foreshadowed Section 29 Proceeding, which has since been narrowed. Mr Lindholm (14.2.25 [10]) there observed that:

“I have formed the view that the Section 29 Proceeding, as it relates to the allegations against me, is flawed and has low prospects of success and, if it is filed and proceeds, will interfere with the due and proper administration of the special purpose receivership. For these reasons, I do not consider that the Section 29 Proceeding is in the best interests of the special purpose receivership or debenture holders.”

17. Mr Lindholm also there addressed the consequences of the Section 29 Proceeding for the special purpose receivership, most significantly, the likelihood that, if the SPR is required to defend the Section 29 Proceeding, he will need to hold back funds from a final distribution to debenture holders to support his indemnity towards the costs of any such defence and that will further delay or reduce the distribution to debenture holders. Mr Lindholm also referred to several suggested factual errors in the then proposed Section 29 Proceeding and addressed the circumstances in which issues raised in that application had previously been considered in Dixon J’s judgment in the Remitter and by this Court in giving directions to the SPR, including in a previous remuneration application in which Mr Izzo acted as contradictor, in Re Banksia Securities Ltd (in liq) (recs and mgrs apptd) [2019] NSWSC 136 (“Banksia 2019”) where I reviewed the circumstances of the TrustCo Settlement Deed. Mr Lindholm also there addressed the position in respect of alternative proceedings against TrustCo filed but not served by Mr McKenzie (“McKenzie Proceeding”), which is now raised in the Section 29 Proceeding, and which I address below.

18. By his affidavit dated 14 February 2025, Mr Kingston addressed the then status of the Section 29 Proceeding; provided a detailed account of the conduct of the Remitter proceedings; and addressed the potential costs of the Section 29 Proceeding, which were then in a wider form than their present form. By his affidavit dated 11 April 2025, Mr Kingston addressed further correspondence with Mr Botsman and his solicitor. By his further affidavit dated 26 May 2025, Mr Gashi, a solicitor acting for the SPR, addressed further correspondence with the Victorian Applicants and ASIC in the course of these proceedings.

17. By his affidavit dated 11 July 2025, Mr Lindholm addressed the steps which were being taken to finalise the receivership, the impact of the Section 29 Proceeding on the cost and duration of the receivership, and the extent to which it has delayed a further distribution to debenture holders of a final distribution. He also provided a detailed factual response to the claims made in then wider version of the Section 29 Proceeding. Mr Lindholm also there led evidence in respect of his claim for remuneration. By a confidential affidavit dated 11 July 2025, Mr Lindholm also addressed allegations that were made in the then version of the Section 29 Proceeding relating to a decision not to pursue claims against the solicitors that had acted for AFP in the Remitter. I need not address that evidence further, where Mrs Botsman does not pursue a claim against the SPR as to that matter in the current version of the Section 29 Proceeding, although she pursues a claim against those solicitors.

18. By his further affidavit dated 10 September 2025, Mr Lindholm addressed further developments since I made orders approving settlements with several third parties in July 2025, and he identified four remaining issues in the receivership, namely receiving a dividend from the liquidation of Lehman; his remuneration claims; the making of a final distribution to debenture holders, subject to resolution of the Section 29 Proceeding; and resolving the Section 29 Proceeding. He also there addressed a further communication with debenture holders in respect of the Section 29 Proceeding and responses from debenture holders. Some of the Victorian Applicants have responded to that communication by opposing the release of the SPR that is sought in this application and other debenture holders have recognised the adverse effects of a continuing delay in the final distribution which, as I have noted above, is likely to result from the Section 29 Proceeding.

19. By a further affidavit dated 30 September 2025, Mr Kingston addressed further correspondence with ASIC. The SPR also tendered an email dated 1 October 2025 (Ex R14) from a debenture holder, which expresses the view of some debenture holders of the difficulties arising from the Section 29 Proceeding.

20. The Victorian Applicants read the affidavit dated 22 August 2025 of Ms Peiros, their solicitor, which attached a bundle of documents relevant to the Section 29 Proceeding. The Summons filed in those proceedings identified Ms Botsman and the 28 other Victorian Applicants as applicants in the proceedings. The Summons seeks relief against, relevantly, Ferrier Hodgson, a firm with which the SPR was previously associated, Mr Lindholm as the SPR, Mr McCluskey who was formerly the SPR together with Mr Lindholm and KPMG which acquired Ferrier Hodgson. The relief sought is, first, a direction that all matters related to recoveries and distribution following from the TrustCo settlement must be heard and determined by the Supreme Court of Victoria. I think it unlikely that the Supreme Court of Victoria could or would make such a direction, where the SPR was appointed by this Court in accordance with its statutory jurisdiction under s 283HB of the Act, and this Court has a continuing role in supervising the SPR, as it has done throughout the special purpose receivership.

21. The Victorian Applicants also seek an order that they have sufficient interest in the Bolitho proceedings and the Remitter to allow them standing to bring the Section 29 Proceeding and there was no controversy as to that question in this hearing. They also seek an order under s 30 of the CPA that the application was made prior to finalisation of the Bolitho Proceedings and the Remitter, or alternatively an order under s 31 of the CPA that they be granted an extension of time for making the application under s 29 of the CPA. I will address that question below, because it is plainly relevant to an assessment of their prospects of success against the SPR in the Section 29 Proceeding.

22. The Victorian Applicants then seek an order that, on the basis of the Remitter Judgment:

“There be an investigation into the conduct of the Respondents for contraventions of section 14 and Part 2.3 of Chapter 2 of the CPA.”

They also seek an order that the persons named as the “ABL Respondents” pay a specified amount, which it is not necessary to address for the purposes of this application. The Summons did not, in terms, seek further relief against the SPR, although it is plain enough that the Section 29 Proceeding seek such relief, for reasons which I address below.

25. The exhibit to Ms Peiros’ affidavit included an affidavit dated 1 July 2025 of Ms Botsman, filed in the Section 29 Proceeding, which referred to the Remitter Judgment and indicated that:

“The basis for alleging that the Respondents engaged in wrongdoing is set out in the Applicants’ Proposed List of Issues, which has been prepared by Dr Bill Orow, of Counsel (List of Issues). Now produced and shown to me and marked “WDB-1” is a true copy of the List of Issues. The List of Issues refers to and relies on findings in the Remitter Judgment. On the basis of the matters raised and addressed in the List of Issues, I believe that the relief sought in the summons is appropriate.

In the circumstances, I respectfully request that the Court grant the relief sought in the summons.”

I should here note, as also emerges below, that it does not appear that those allegations, so far as they relate to the SPR, find any or any sufficient basis in the findings made in the Remitter Judgment.

26. I should now address the Victorian Applicants’ proposed List of Issues in the Section 29 Proceeding in some detail, because it makes clear that the Victorian Applicants are not merely posing questions for the Supreme Court of Victoria to consider if so inclined, but advancing specific allegations against the SPR.

27. Paragraph 6 of that List of Issues indicates that the Victorian Applicants seek compensation from the Respondents, which there include the SPR, for a shortfall in recoveries under the Remitter plus costs on an indemnity basis for the benefit of debenture holders, including debenture holders other than the Victorian Applicants. Paragraph 7 of the List of Issues indicates that it is appropriate or necessary for the Court to order that the Respondents, again including the SPR, pay compensation for the Shortfall (as defined) by reason of a breach by the Respondents, again including the SPR, of the paramount duty and overarching obligations under the CPA and the common law. The Victorian Applicants there contend that the Respondents, again including the SPR:

“should be ordered to pay compensation for loss and damage occasioned to the [Victorian] Applicants, including but limited to, shortfall in loss recovery, loss and damage referable to delay in the distribution to the [Victorian] Applicants as debenture holders of their entitlements and to pay compensation to individual Applicants, including, Mrs Botsman.”

28. I pause to note that it is not apparent that there is any causative connection between the allegations made against the SPR in the Section 29 Proceeding and a loss of that character, where the SPR’s inability to recover the full amount of the Remitter Judgment reflects the impecuniosity of some defendants in the Remitter and the manner in which other had structured their affairs, and that position does not result from any conduct of the SPR. However, I put that matter aside where the SPR did not rely on it in opposition to the application for leave brought by the Victorian Applicants

29. The Victorian Applicants repeat, in paragraph 19 of the List of Issues, allegations of breach of the paramount duty and obligations under the CPA as allegations put against, relevantly, the SPR rather than merely as matters as to which the Supreme Court of Victoria might inquire. Lengthy claims are then made against the ABL Respondents, which the Victorian Applicants do not need leave of this Court to pursue. Paragraphs 63ff of the List of Issues then articulates a claim against the SPR, which refers to the Banksia Proceedings and the terms of the Banksia Settlement. The Statement of Issues refers to observations of the Court of Appeal in the Bolitho VSCA judgment and then identifies, at paragraph 99 of the List of Issues, eleven allegations against the SPR which turn upon the impact of certain terms of the Banksia Settlement on the manner in which the Approval Application was conducted at first instance in the Supreme Court of Victoria.

30. Paragraph 101 of the List of Issues then alleges that the SPR was “derelict in its duties to the debenture holders” in entering into the Banksia Settlement and was “in breach of its overarching obligations and duties under the CPA and general law” in taking certain steps and, in paragraph 102, alleges that:

“The SPR failed to further the administration of justice, did not act honestly and engaged in conduct that was misleading and deceptive in breach of its obligations under the CPA and general law – both at the approval hearing, the appeal and in the initial stages of the [R]emitter.”

Again, this is not put as simply a matter as to which the Supreme Court of Victoria may inquire, if it considers fit. It is, in express terms, an allegation of dishonesty against the SPR. Paragraph 105 of the List of Issues then makes a positive allegation that the SPR misled the Supreme Court of Victoria in specified steps, before again alleging that the SPR was in breach of his overriding obligations and duties under the CPA and general law in supporting the Bolitho Settlement. These matters are in turn relied upon to support the relief claimed in the Summons and repeated in paragraph 107 of the List of Issues, which extends to “such alternative or other orders that the Court thinks appropriate or necessary to ensure that justice is done in the [proceedings].”

31. Annexure B to that document is headed “Outline of issues concerning the SPR Respondents” and includes further allegations that the SPR Respondents (as defined) helped Mr Elliott exert “significant control” over the Banksia litigation, notwithstanding the earlier judgment of the Supreme Court of Victoria in Bolitho No 4 which required that a separate solicitor be appointed in those proceedings. The Victorian Applicants then contend that:

“By allowing [Mr] Elliott to negotiate the terms of the TrustCo Settlement, the SPR was complicit in the circumvention of [Bolitho 4] and thereby contravened the paramount duty and the obligation not to mislead or deceive.”

I will address these allegations below.

32. It is plain enough here that the Victorian Applicants seek relief against the SPR in the Section 29 Proceeding, since they commenced those proceedings and the SPR is one of the named Respondents to those proceedings. It is also plain enough that they do so by reference to the allegations made against the SPR in the List of Issues, which I have addressed above, and that they seek to have the Supreme Court of Victoria grant the relief sought in the List of Issues. I do not accept Dr Orow’s submission before me that the Section 29 Proceeding could be characterised as proceedings commenced by the Supreme Court of Victoria of its own motion, which is untenable as a matter of fact.

Whether leave is required to commence and continue the Section 29 Proceeding

33. As I noted above, the first issue that arises in these proceedings is whether, as the Victorian Applicants contend, they can bring the Section 29 Proceeding against the SPR in the Supreme Court of Victoria, although he is a receiver appointed by this Court under s 283HB of the Act, without leave of this Court. That question is resolved by the case law.

34. In Re Siromath Pty Ltd (No 1) (1991) 9 ACLC 1580 (“Siromath”), McLelland J observed that:

“It is well established that at least unless the Court's leave has been obtained, the Court "will not allow its officer to be subject to an action in another court with reference to his conduct in the discharge of the duties of his office, whether right or wrong. The proper remedy for anyone aggrieved by his conduct is to apply to the court in the action in which he was appointed." (See Re Maidstone Palace of Varieties (1909) 2 Ch 283 at 286 applying Aston v Heron 2 My and K 390 39 ER 993; cf. Re Hutton (1969) 2 Ch 201).

An application to the Court to enforce this principle is properly made, as it has been in the present case, by notice of motion in the proceedings in which the relevant officer was appointed, in this case the winding up proceedings. In the circumstances it is appropriate that this Court take whatever steps are open to it to protect its own officers …”

35. In Mamone v Pantzer (2001) 36 ACSR 743; [2001] NSWSC 26 at [4]–[5] (“Mamone”), in the context of proceedings against a Court-appointed liquidator, Santow J summarised the effect of Siromath and also adopted the reasoning of Tamberlin J in Sydlow Pty Ltd (in liq) v TG Kotselas Pty Ltd (1996) 65 FCR 234 at 241–242 as follows:

“The applicable principles and their public purpose which underlie the requirement that a prospective litigant must obtain leave to sue a court appointed liquidator can be stated in the following propositions:

(i) The court will protect its officer from spurious or vexatious litigation: Re Siromath Pty Ltd (No 3) (1991) 25 NSWLR 25 at 29 ; Re Magic Aust Pty Ltd (in liq) (1992) 7 ACSR 742 at 746 ; 10 ACLC 929 at 932; and

(ii)The court will protect the integrity of the winding up process to ensure no wrongful interference with that process: Sydlow Pty Ltd (in liq) v T G Kotselas Pty Ltd (1996) 65 FCR 234 at 241 ; 144 ALR 159 at 165–6 .

To those ends, a prospective litigant must, to obtain the necessary leave, demonstrate its claim has sufficient merit. What is sufficient is affected by the circumstances and timing in which that leave is sought. Moreover courts recognise that liquidators, like administrators, often have to make decisions on the run; to expect perfection in those circumstances is unrealistic. In Sydlow, above, Tamberlin J stated at FCR 242; ALR 165 :

The discretionary power of the court to grant leave must be exercised having regard to all the circumstances of the particular cases and bearing in mind the need to protect the integrity of its process. It does not necessarily follow that, in order to obtain leave, a prima facie case must be demonstrated. There is no specific threshold appropriate in all cases, however there must be more than mere assertion. The court's discretion may be exercised on many grounds, including, but not limited to, the sufficiency of the evidence adduced, as to the prospects of success of the action on the application for leave.”

I would adopt the reasoning of Tamberlin J in Sydlow, recognising that he was at pains to avoid laying down a rigid test for when the court should refuse leave. Thus I would not adopt as a universal rule some variant of the test applicable to the setting aside of statutory demands or which draws on the analogy of interlocutory injunctions. This is because the two factors earlier identified will have a significant effect on how the court should exercise its discretion. Indeed they do so here.”

36. Subsequently, in Eighty Second Agenda Pty Ltd v Handberg (2014) 32 ACLC 14081; [2014] VSC 665 (“Eighty Second Agenda”), which again deals with the position of a court-appointed liquidator, Croft J observed at [18]–[22] that:

“The rationale behind this requirement derives from two distinct, yet related, aspects of the protective role that a court often must undertake; in this instance, that role is enlivened to ensure that a court appointed liquidator be unencumbered so as to allow them to perform their official functions, as well as providing a means of protecting the courts own processes.

This latter aspect focuses on the role which a court-appointed official in this case, a court appointed liquidator undertakes as a representative of the court. When acting in such a position, the court takes the view that the actions of the appointed official are to be deemed as actions of the court. This proposition can be traced back to a decision of Lord Chancellor Brougham in Aston v Heron (1834) 2 My & K 390 at 3967; 39 ER 993 at 995.

The rationale behind the first branch of the principle to which I referred earlier that a court will act to protect its own officers so as to ensure they may perform their official function was explained by Robb J in Fortress Credit Corp (Australia) II Pty Ltd v Fletcher (as liquidator of Octaviar Administration Pty Ltd) (in liq) (No 2) [2013] NSWSC 1625 , where his Honour said:

The principle is intended to protect liquidators from being subjected to claims against them in their personal capacity in relation to the performance of their duties, so putting their personal assets at risk, by any application made outside the winding up of the company, unless leave be given by the winding up court.

As the judicial statements in these cases indicate, there is a close relationship between a court and a court-appointed liquidator; so much so that it will protect the liquidator as one of its officers, through the same processes by which it will protect its own processes.”

37. Dr Orow also refers to the observations of Rees J in Aardwolf Industries LLC v Tayeh [2020] NSWSC 299 at [81]ff (“Aardwolf”) recognising the position that leave of the Court is required to bring proceedings against a Court-appointed liquidator. Several of these decisions were also cited by Leeming JA on appeal in Aardwolf Industries LLC v Tayeh [2020] NSWCA 301 at [89]–[90], where his Honour observed that:

“First, what is the underlying rationale for the requirement of leave? The weight of authority appears to favour the explanation given in the elaborate judgment of Brougham LC in Aston v Heron (1834) 2 My & K 390 at 396; 39 ER 993 at 995, concerning a court-appointed receiver who was sued in trespass in a common law court, leading to a common injunction restraining the action. The Lord Chancellor refused to discharge the injunction, on this basis:

“The acts of the receiver, in the administration of the estate, are the acts of the Court; and the Court may, therefore, if it pleases, prevent any other jurisdiction from questioning those acts, because, strictly speaking, that would be to question the Court’s administrative proceedings. Nevertheless, the Court is fully authorised, on a case being made, to leave the acts of its receiver to be questioned elsewhere, for the purpose of trying a right in those for whom it holds possession, just as it is fully authorised to leave a complaint of irregular or oppressive execution of its orders to be adjudicated elsewhere, if that, upon the facts disclosed, should appear to be the preferable course.”

This was regarded as settled by Neville J in In re Maidstone Palace of Varieties Ltd [1909] 2 Ch 283 at 286 , by Tamberlin J in Sydlow Pty Ltd (In Liquidation) v T G Kotselas Pty Ltd (1996) 65 FCR 234 at 240, by McLelland J in Re Siromath (1991) 9 ACLC 1,580 , and most recently by Brereton J in In the matter of Worldwide Speciality Property Services Ltd (in liq) [2017] NSWSC 1851; 35 ACLC 17–063 at [21] –[23].”

38. The question of the rationale for the leave requirement, where a claim is brought against a Court-appointed liquidator in the Court which had appointed that liquidator, does not arise here. This application falls within the area in which the requirement for leave is well established, including in respect of a Court-appointed receiver, where the Section 29 Proceeding are brought in a Court other than the Court which appointed the SPR.

39. In his text Forum Shopping and Venue in Transnational Litigation, Dr Bell (as the Chief Justice then was) also refers to Siromath at [4.134] and points (at [4.135]) to the policies which support protection of a Court’s jurisdiction. He also notes (at [4.230]), in the context of dealing with anti-suit relief, that:

“Where the basis for the grant of anti-suit relief relates to the protection of the jurisdiction of the Court issuing the injunction, once a Court has determined that the integrity of its process is being abused, or that the Court’s jurisdiction is in some way being improperly invaded or impeached, arguments for restraint based on considerations of comity are least strong and it may even be that, in this situation, Courts are or may be bound to grant anti-suit injunctive relief.”

40. Mr Redwood points out that the leave requirement has been recognised at least since Aston v Herron (1834) 2 MY&K 390 and has been consistently applied in Australia since Siromath. While I am not bound to follow decisions of other judges of coordinate jurisdiction, I would do so as a matter of comity, unless I was convinced that such a judgment was wrong: Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310 at [57]. Here, to the contrary, I am comfortably satisfied that the decision in Re Siromath is correct, and reflects an important public interest in the Court protecting its officers from unjustified litigation which might interfere with or hinder the performance of their duties or erode assets which they would otherwise recover for the benefit of interested persons or delay or increase the costs of a receivership: Eighty Second Agenda; Aardwolf at [86]. Here, the proposed Section 29 Proceeding would have all of those results. I would follow that and subsequent decisions to the same effect for that reason and to promote predictability in judicial decision-making.

41. Mr Izzo also responds to the Victorian Applicants’ submission that they do not require the Court’s leave to proceed with the application under CPA s 29, as follows:

“First, it is well-settled that an officer of the court (appointing court) can only be subject to an action in another court in relation to the discharge of their duties with leave of the appointing court: Re Siromath Pty Ltd (No 1) (1991) 9 ACLC 1580 at 1581-1582 [a footnote also cites In the matter of Worldwide Speciality Property Services Ltd (in liq) [2017] NSWSC 1851 at [21]-[23] (Brereton J); Sydlow Pty Ltd (In Liq) v T G Kotselas Pty Ltd And Others (1996) 65 FCR 234 at 240-241 (Tamberlin J).] There is no dispute that the SPR, as a court-appointed receiver, is an officer of the Court.

(No question arises in the present proceeding about whether leave of the Court is required for the Victorian Applicants to commence proceedings against the SPR in this Court: see generally In re Maidstone Palace of Varieties Limited [1909] 2 Ch 283. No such application has been made and there is no proposal by the Victorian Applicants to do so.)

Secondly … the underlying rationale for the leave requirement is sound. The rationale … is to protect the integrity of the function being undertaken by the court officer (in this case, a special purpose receivership in accordance with the orders made on 30 September 2015) and to ensure that there is no unwarranted interference or hinderance with the performance of the officers’ duties. There is no conflict of interest involved in the Court adjudicating applications for leave to proceed against a court-appointed officer. Any application would be decided by an independent judge in accordance with established principes. The Court routinely determines such applications (for example, in cases to proceed against a court-appointed liquidator).

Thirdly … the effect of the leave requirement is not that the Victorian Proceeding is heard and determined by the Supreme Court of NSW. The only question determined by the Supreme Court of NSW is whether the Victorian Applicants should be given leave to make and maintain such an application. Whether the proposed proceeding has sufficient merit and the connection between the proposed proceeding and the forum for that proceeding are relevant to the question of leave but these factors do not give rise to a determination of the proceeding in respect of which leave is sought.

Fourthly … the discretionary nature of the grant of leave is not a reason why there should be no requirement to obtain leave. The Court frequently adjudicates matters based on discretions that involve having regard to all the relevant circumstances of a particular case, bearing in mind the nature of the decision being made by the Court, including its purpose: see, eg, Corporations Act, s 423; Sahab Holdings Pty Ltd v Tonks [2023] NSWCA 12; 167 ACSR 560 at [12]-[14], [17]-[26] (Kirk JA, Macfarlan and Meagher JJA agreeing). In noting in obiter that “there is perhaps some vagueness as to the precise nature of the test”, Leeming JA in Aardwolf Industries LLC v Tayeh [2020] NSWCA 301 at [93], raised a matter that could be considered further in an appropriate case. This was not an argument against the leave requirement.

Fifthly… the leave requirement does not impair the jurisdiction of the Supreme Court of Victoria. Section 29(1) of the [CPA] confers a discretion on the Supreme Court of Victoria to make certain orders it considers appropriate in the interests of justice, if it is satisfied that, on the balance of probabilities, a person has contravened any overarching obligation. That discretion persists, regardless of the outcome of the grant of leave, because the Court can make such orders on its own motion: [CPA] s 29(2)(b).”

42. I accept these admirable submissions in their entirety.

43. As I noted above, Dr Orow also identifies a second question whether the answer to this question is different because of the nature of the Section 29 Proceeding, where they are brought by the Victorian Applicants under s 29 of the CPA or, as he seeks to re-characterise them, are an invitation to the Supreme Court of Victoria to make orders against the Respondents to those proceedings, including the SPR, of its own motion. Dr Orow also took me through and I have regard to the terms of the CPA and particularly s 7 which sets out the overarching purpose; s 8 which requires the Court to give effect to the overarching purpose; s 10 which applies the overarching obligations which apply, inter alia, to a party to proceedings and legal practitioners acting for or on behalf of a party and a funder of proceedings; s 11 which deals with the application of overarching obligations in civil proceedings; and Part 2.3 which sets out the content of the overarching obligations, including the paramount duty in s 16 of the CPA.

44. Dr Orow also submits that the obligations imposed by the CPA are non-delegable and that it is not a defence for a person accused of breaches of the overarching obligations to say that he or she relied on legal advice: Re Zita (a solicitor) [2022] VSC 354 (“Zita”). I will assume, without deciding, the correctness of that proposition, but it does not assist the Victorian Applicants unless they have a sufficient factual basis to allege a breach of the overarching obligation against the SPR in the first place. Dr Orow submits that most of the issues in this application depend on the essential character of proceedings under s 29 of the CPA, and he places heavy reliance on submissions made by the SPR in the Remitter concerning that matter. It is not necessary to decide any wider question as to the nature of proceedings under s 29 of the CPA for the purposes of this application, which largely turns on the narrower questions whether the Section 29 Proceeding are within time and whether the Victorian Applicants have established a sufficient factual basis for their claims to warrant granting leave to them to pursue them, notwithstanding the detriment to debenture holders of a delay in a final distribution and a likely reduction in the amount of that distribution by reason of costs incurred by the SPR in defending the Section 29 Proceeding.

45. Part 2.4 of the CPA in turn sets out sanctions for contravening the overarching obligation and provides, in s 29, that a Court may make certain orders if it is satisfied, on the balance of probabilities, that a person has contravened any overarching obligation, including an order that the person compensate any person for any financial loss or other loss that was materially contributed to by the contravention of the overarching obligation, including specified matters. I have regard to Dixon J’s consideration of the scope of CPA s 29 in Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd (No 4) [2013] VSC 14 and Daly AsJ’s observations in Vrantsidis v Milekovic [2025] VSC 255, including at [98]ff, to which Dr Orow drew my attention. Such an order may be made, under CPA s 29(2)(a), on the application of any party to the civil proceeding, or any other person who, in the Court’s opinion, has a sufficient interest in the proceeding or, under CPA s 20(b), on the Court’s own motion. It is not necessary to address the latter power here, where it is plain here (notwithstanding Dr Orow’s submission that I address below) that the Section 29 Proceeding is brought by the Victorian Applicants, on the express basis that they contend that they have sufficient interest to bring it and is not an application commenced by the Supreme Court of Victoria on its own motion.

46. Section 30 of the CPA provides that an application for an order under s 29 of the CPA is to be made in the Court in which the civil proceeding was or is being heard. Subsections 30(2)-(3) in turn provide that:

“(2) An application for an order under section 29 must be made prior to the finalisation of the civil proceeding, to which the application relates (excluding any period for appeals).

(3)   For the purposes of sub-section (2), if an order, including an order in respect of costs, is made after the date of finalisation of the civil proceeding to which the application relates, the date of making of the last of the orders is taken to be the date of finalisation of the proceeding.”

47. Section 31 in turn provides for an extension of time for such an application, but s 31(2) provides that:

“(2) The Court may grant an extension of time for making an application under section 29 if satisfied that the person making the application was not aware of the contravention of the overarching obligations until after the end of the period specified in s 30(2).”

I return to the significance of ss 30 and 31 of the CPA below.

48. Dr Orow submits that the application brought by the VSC Applicants is not a proceeding to vindicate a cause of action or a claim but rather “nothing more than a petition by an interested or affected person” asking the Court to “investigate” potential breaches of the overarching obligations. There are two difficulties with that submission. The first is that, as the review of the List of Issues which I have set out above demonstrates, the VSC Applicants advance specific factual allegations against the SPR which are said to give rise to a right of compensation against the SPR and associated persons. The second is that, in any event, the public interest in protecting a Court-appointed receiver, as an officer of the Court, extends to claims against the SPR in the broadest possible sense, including an inquiry into the SPR’s conduct which could otherwise be undertaken in this Court. I recognise, of course, that the Supreme Court of Victoria could commence an inquiry into the conduct of the SPR of its own motion, and would not require the leave of this Court to do so. As a matter of reality, that is not what has occurred here; instead, as occurs in any adversarial proceedings, the Victorian Applicants ask the Supreme Court of Victoria to reach findings against the SPR as to the allegations which they identify in the List of Issues and to grant relief, which they identify, against the SPR and that relief falls within the scope of the public interest in protecting a Court appointed receiver as its officer.

49. Dr Orow also refers, variously, to the scope of the orders which may be made by the Court under s 29 of the CPA and submits that proceeding under that section is analogous to a proceeding for contempt and “nothing should be done to deter a person from bringing a contempt to the notice of the Court”. I do not accept that submission, where contempt proceedings against a Court-appointed liquidator or Court-appointed receiver, brought in a Court other than that which made the appointment, would also require the leave of the appointing Court. I have not neglected, but it is not necessary to summarise, Dr Orow’s extensive further submissions as to other elements of proceedings under CPA s 29. I accept, as Dr Orow points out, that the Supreme Court of Victoria itself has power to conduct an inquiry under CPA s 29 and to take steps to protect itself from abuse of its processes. However, that position is not unique to an application under CPA s 29 nor does it displace the constraints that exist in respect of proceedings brought in another Court against a Court-appointed officer, without the leave of the appointing Court. Dr Orow also submits that an application brought under s 29 of the CPA is “nothing more than a petition by an interested or affected person asking the Court to investigate”. As I have noted above, it is plain that the Victorian Applicants have not approached the Section 29 Proceeding in that manner, as their formulation of their List of Issues demonstrates. Dr Orow’s further submission that the investigation would be conducted by the Victorian Supreme Court “act[ing] through the medium of the [Victorian] Applicants” seems to me to misstate the character of the proceedings, where it is plain that the Victorian Applicants advance a series of allegations, on their own behalf and not on behalf of the Supreme Court of Victoria, in the List of Issues; invite that Court to determine them in the Section 29 Proceeding; and contemplate that their claims will be pursued by, inter alia, “a list of questions for, amongst others, the SPR to answer, discovery of documents, filing of affidavits, viva voce examinations and submissions”, formulated on their own behalf and not on the Court’s behalf.

50. Dr Orow also submits that this Court does not have jurisdiction to restrain or prevent the Supreme Court of Victoria from undertaking an inquiry under relevant provisions of the CPA or to release the SPR from his obligations to the Supreme Court of Victoria. The SPR does not ask the Court to do so. Instead, as is ordinarily the case where a claim is brought against a Court-appointed receiver in another Court, the question of leave arises, not in respect of the other Court’s exercise of its functions but in respect of persons who invoke that Court’s jurisdiction. The question of release arises here only where leave is not granted to the Victorian Applicants to bring the Section 29 Proceeding and there are no other foreshadowed claims against the SPR.

51. Dr Orow submits, alternatively, that leave of this Court is only required where conduct of a Court-appointed receiver occurred in the same jurisdiction as the appointing Court. I do not accept that submission, where it seems to me that the leave requirement is directed to the nature of the defendant, namely an officer of the Court, rather than to any question of the jurisdiction in which particular conduct occurred. In further submissions, Dr Orow also points to the jurisdiction of the Victorian Supreme Court to, for example, stay proceedings which are an abuse of process, or dismiss proceedings by summary judgment. I accept, of course, such mechanisms are well-established but that also does not address the issues that arise from proceedings being brought, without leave, against a Court-appointed receiver as an officer of the Court.

52. I have not accepted Dr Orow’s characterisation of the Section 29 Proceeding here, but, in any event, the requirement for leave does not turn upon the nature of the Section 29 Proceeding or the scope of any liability that is sought to be established in that proceeding or whether it is investigative or has some other character, but upon the fact that the proceeding is brought against the SPR who is an officer of this Court and will interfere with the performance of the SPR’s remaining duties and the completion of the special purpose receivership, and these matters support applying the requirement for leave that applies in other proceedings to the Section 29 Proceeding. For these reasons, the Victorian Applicants cannot bring the Section 29 Proceeding against the SPR without leave of this Court.

Whether leave should be granted to the Victorian Applicants to commence, nunc pro tunc, or continue the Section 29 Proceeding

53. As I noted above, the Victorian Applicants’ primary position was that they did not require leave to continue the Section 29 Proceeding. However, against the contingency that I did not accept (as I have not accepted) that proposition, they alternatively sought the Court’s leave, nunc pro tunc, to continue the Section 29 Proceeding.

54. In Re St Gregory’s Armenian School (in liq) (2012) 92 ACSR 588; [2012] NSWSC 1215 at [112] (“St Gregory’s Armenian SchooI”), Brereton J observed, in respect of the approach to be applied in determining whether to grant leave to bring proceedings against a Court-appointed liquidator, that:

“The discretionary power of the court to grant leave must be exercised having regard to all the circumstances of the particular case and bearing in mind the need to protect the integrity of its process [Sydlow Pty ltd (in liq) v T G Kotselas Pty Ltd [1996] FCA 1384; (1996) 65 FCR 234, 241 (Tamberlin J)]. An applicant for leave must demonstrate that its claim has sufficient merit. What is “sufficient” is affected by the circumstances and timing in which that leave is sought, and does not necessarily mean a prima facie case [Mamone v Pantzer, [4]]. There is no specific threshold applicable to every case, but there must be more than mere assertion. The court’s discretion may be exercised on many grounds, including, but not limited to, the sufficiency of the evidence adduced as to the prospects of success of the action [Sydlow, 242; Mamone, [5]]. Courts recognize that liquidators often have to make decisions on the run, and that to expect perfection in those circumstances is unrealistic [Mamone v Pantzer, [4]].”

55. Dr Orow adopts, in the alternative, if leave is required, the test adopted by Rees J in Aardwolf at [83], requiring that discretionary power to grant leave be exercised having regard to the circumstances of the particular case; that it is not necessary for the applicant to demonstrate a prima facie case; but there must be more than an assertion. I recognise that, on appeal, Leeming JA recognised the understandable reluctance in the authorities to express a test for leave in absolute terms. I assume, without deciding, that the test proposed by Dr Orow is the appropriate test, where it has support in the case law and is likely the most favourable position for the Victorian Applicants.

56. Mr Izzo also submits that:

“The [C]ontradictor agrees with the Victorian Applicants that the discretionary power as to leave must be exercised having regard to all circumstances of the particular case: … Aardwolf Industries LLC v Tayeh [2020] NSWSC 299 at [83] (Rees J)). Those factors include whether the claim made by the Victorian Applicants has sufficient merit and the sufficiency of evidence adduced as to the prospect of success of the action.”

57. Mr Redwood submits that this Court, which appointed the SPR, is the appropriate forum for the Victorian Applicants to raise any complaint about the SPR’s conduct. The Victorian Applicants do not raise, or seek to raise, a complaint in this Court and they make clear that they seek to pursue the Section 29 Proceeding only in the Supreme Court of Victoria. I recognise that the fact that the Court which appoints a Court-appointed receiver has the power to supervise his or her conduct, including by disciplinary action, would in a proper case be sufficient basis to decline leave to commence proceedings in another Court against that receiver. I do not take that course here, where I recognise that CPA s 30(1)(a) requires that an order under CPA s 29 be brought in the Court in which the civil proceeding was heard, the Supreme Court of Victoria, and the Victorian Applicants may not be able to invoke the jurisdiction under CPA s 29 in proceedings brought in this Court. I therefore address the question of leave by reference, not to the availability of jurisdiction in this Court as an alternative to the Supreme Court of Victoria, but by reference to the merits of the Section 29 Proceeding.

57. The next question that arises in determining whether that leave should be granted is whether the Section 29 Proceeding is out of time. The applicable provisions in ss 30 and 31 of the CPA have been considered in the case law. In Kenny v Gippsreal Ltd [2015] VSC 284, Vickery J considered the concept of “finalisation” under s 30 of the CPA and noted (at [65]) that s 30(3) of the CPA did not defer the “finalisation” of proceedings to a date on which a party’s costs application was finally determined following the making of orders which otherwise result in the “finalisation” of proceedings. His Honour also observed (at [66]) that:

“On a proper construction of s 30(3), I am of the view that it applies only to orders made in the same proceeding as orders which otherwise would have resulted in the proceeding being finalised. The “finalisation“ of a proceeding, which is the critical factor in s 30(2) for the purposes of determining the statutory time limit, would not work as it was intended if the effect of orders made in other proceedings was also to be taken into account.”

His Honour there found that orders which had expressly reserved the question whether third parties may be liable to pay the parties’ costs of the proceedings nonetheless evidenced the finalisation of those proceedings.

59. On appeal in Gippsreal Ltd v Kenny (2016) 52 VR 149, [2016] VSCA 319 at [106], the Court (Whelan, Priest and Kyrou JJA) observed that:

“… [Sections] 30 and 31 of the CPA evince a clear legislative intention that applications for relief based on a breach of an overarching obligation must be made prior to final orders being made in the relevant litigation, subject to the power of the Court to grant an extension where the person making the application was not aware of the breach prior to the making of final orders.”

60. Mr Redwood submits that the Banksia Proceedings have long been finalised and the Section 29 Proceeding is not brought within the time for such an application permitted under s 30 of the CPA, relying on the decisions which I have noted above. Mr Izzo also submits that:

“The [Section 29] Proceeding was not made prior to the finalisation of the Banksia Proceeding to which it relates, contrary to s 30(2) of the [CPA], and there is no real prospect of the Victorian Applicants obtaining an extension under s 31 … As noted by the SPR, the Victorian Applicants make no submissions as to why there is any prospect that they would be granted an extension of time for their application.

Relatedly, the Victorian Applicants have not explained why they did not make their application under s 29(2)(a) of the [CPA] during the remitter or soon after judgment. The Victorian Proceeding concerns events preceding the Remitter Judgment, and the extent of the SPR’s participation in the scheme that formed the subject matter of the remitter: … The remitter commenced in November 2018. On 11 October 2021, John Dixon J delivered judgment on the remitter. The [C]ontradictor understands that, during the remitter, the SPR provided a significant volume of material about the matters that form the subject of the Victorian Applicants’ complaint: Lindholm 10 September 2025 at [33].”

61. Dr Orow responds that the Section 29 Proceeding is not out of time because the Bolitho Proceeding or the Remitter is ongoing and has not been finalised. Dr Orow also submits that:

“Leaving aside the question whether an extension may be sought under section 31 of the CPA, the V[ictorian] Applicants’ position is that the relevant civil proceeding is the whole Banksia proceedings that was carried, in the main, by the SPR including all ancillary proceedings (eg against Elliot and Zita) to the time when all orders are made to make final distributions and to discharge the SPR. That is certainly the approach that was adopted by Justice Dixon … and was supported by the SPR. Further, it is no accident that Parliament chose the word “finalisation” rather than the making of final orders because the word finalisation may involve steps that go beyond the making of final orders. It mandates a practical rather than a technical judgement.”

62. On 11 October 2021, Dixon J made final orders in the Remitter. The VSC Applicants refer to subsequent judgments were connected with the Remitter, including Zita; Lindholm v Elliott [2023] VSC 442 and Lindholm v Elliott(No 2) [2023] VSC 572. Assuming, without deciding, that the question of “finalisation” of the Banksia Proceedings and the Remitter may have reference to other associated proceedings, where that assumption is the most favourable position to the Victorian Applicants, that does not assist them here, because there is no suggestion that any associated proceeding extended beyond 2023. Dr Orow was also not able to identify any open issue in the Bolitho Proceedings, at the time the Section 29 Proceeding was brought, in response to my invitation to him to do so. In oral submissions, he retreated to the proposition that the Bolitho Proceedings and the Remitter were not finalised because the Section 29 Proceeding might be brought at some future date. However, that approach would render the time limit in s 30 of the CPA nugatory, if no proceeding were ever finalised while an application under s 29 of the CPA might in future be brought, months or years after orders were made that otherwise brought it to an end.

63. Dr Orow also submits that distributions to debenture holders in respect of BSL are not yet complete. However, this submission confuses two matters. First, in Bolitho v Banksia Securities Ltd(No 5) (2019) 60 VR 486; [2019] VSC 554, Dixon J approved an interim settlement distribution scheme, but there is no suggestion that the Remitter was not finalised by his Honour’s judgment in it and associated orders. There are issues that remain open in these proceedings in this Court, but they do not have the consequence that any aspect of the Banksia Proceedings or the Remitter was not finalised.

64. I am satisfied that the Section 29 Proceeding is out of time, unless the Supreme Court of Victoria could extend the time to bring that proceeding under CPA s 31. The Victorian Applicants made no real attempt to establish, and did not establish, that that Court had power to grant that extension where, as I noted above, that power is conditioned on the fact that the person making the application was not aware of the alleged contravention of the overarching obligations until after the end of the period specified in CPA s 30(2). Neither Mrs Botsman nor the other Victorian Applicants lead any evidence to establish any earlier lack of knowledge of the matters now asserted in the Section 29 Proceeding, where Mr Botsman had raised complaints as to those matters over an extended period. At least by 30 November 2018, long before the finalisation of the Bolitho Proceedings on Dr Orow’s account, Mr Botsman had contended that the SPR should not have agreed to the terms contained in the Banksia Settlement, and the debenture holders should not be required to bear the SPR’s costs of the appeal. That contention raised a significant aspect of the allegations now sought to be pursued in the Section 29 Proceeding.

65. After the Remitter, on 29 October 2021, but still prior to the finalisation of the proceedings associated with the Remitter on which Dr Orow relies, Mr Botsman wrote to the SPR contending that the SPR had “advance warning of potential wrongdoing” in respect of the Banksia Settlement, again advancing a core allegation now sought to be pursued in the Section 29 Proceeding. Since at least 23 February 2022, Mr Botsman has contended that any settlement with third parties arising from the Remitter should include specific payments to Mrs Botsman and Mr Pitman, who is also one of the Victorian Applicants, for conduct by Mr Elliott and his associated entities which involved “intimidation and bullying” against them. By 13 June 2022, Mr Botsman was raising a suggestion of criminal and disciplinary accountability of, inter alia, the SPR, if “financial accountability” was not established, implicitly by payment of further compensation to Mrs Botsman beyond the recoveries available to debenture holders generally. By letter dated 24 June 2022, Mr Botsman contended that the SPR was on notice of Mr Elliott’s “depravity”, because the SPR had approved payments to the SPR’s solicitors and Counsel who had done the very substantial part of the work that led to a successful resolution of the Banksia Proceedings. The correspondence with Mr Botsman continued thereafter, but it is not necessary to further summarise it. The significant matter here is not whether Mr Botsman or Mrs Botsman were or are justified or unjustified in their criticisms of the SPR; it is instead that those criticisms are longstanding and indicated that Mr Botsman has long been aware of the matters which Mrs Botsman now contends found significant parts of the Section 29 Proceeding.

66. Dr Orow did not contend that Mrs Botsman did not know what Mr Botsman knew, where he plainly corresponded with the SPR on her behalf (noting that he was not a debenture holder and had no personal interest in the matter). He also did not contend that an extension under CPA s 31 could be granted for proceedings in which Mrs Botsman was the lead applicant, if Mrs Botsman knew the relevant matters within the relevant time period, simply because other persons joined with her as applicants in the Section 29 Proceeding. This is sufficient basis, without more, to decline leave to bring the Section 29 Proceeding.

67. The second question that arises in determining whether that leave should be granted is whether the Section 29 Proceeding are an abuse of process, at least in seeking to relitigate matters previously addressed in the Remitter. I bear in mind that the concept of abuse of process includes at least the renewed litigation of a case that has already been disposed of by earlier proceedings: Reichel v MaGrath (1889) 14 App Cas 665 at 668.

68. In Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 at [25]–[26], the plurality observed that:

“Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.

Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel. Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel. [citations omitted]

69. In O’Shane v Harbour Radio Pty Ltd (2023) 85 NSWLR 698; [2013] NSWCA 315 at [99], Beazley P also noted that a matter may be found to be an abuse of process if it will bring the administration of justice into disrepute.

70. Mr Redwood submits that the Section 29 Proceeding are an “impermissible attempt to revive and expand the Remitter long after it has concluded”, that they seek to “relitigate matters that have already been the subject of extensive judicial consideration and determination” and that they offend principles of finality essential to the administration of justice. That proposition is contested by the Victorian Applicants. Mr Redwood also makes detailed submissions as to the extent to which the SPR’s conduct was investigated under the Remitter. I do not address those submissions at length, where it is not necessary to do so in order to determine this application. I will assume, without deciding, favourably to the Victorian Applicants, that the review of the SPR’s conduct in the course of the Remitter was at least not central to the Remitter.

71. Mr Izzo as Contradictor in turn submits:

“In submitting that the [Section 129] Proceeding is an abuse of process, the SPR relies on (a) findings that were not made but that might have been made … and (b) findings that were made in the Remitter Judgment and that the Victorian Applicants seek to contradict ... Findings falling into the former category may not be sufficient to ground an abuse of process because it is unclear the extent to which the contradictor and judge in the remitter proceeding considered the matters that might have given rise to those findings. However, the [C]ontradictor acknowledges that the remitter contradictor’s investigation was unrestricted and far-reaching … and that John Dixon J showed a willingness to expand the remitter if necessary ... Even if there is no finding of an abuse of process, the matters relied on in support of that argument also support the absence of merit underpinning the Victorian Proceeding.”

72. Dr Orow responds, and I accept, that the primary focus of the Remitter was on the conduct of persons other than the SPR. Having said that, I also recognise that Dixon J, in the Remitter, directed his attention to the conduct of the SPR. His Honour there found (at [205]) that, in negotiating the resolution of the relevant proceedings, the then SPRs were “focused on maximising the return to debenture holders from any settlement”. His Honour also addressed (at [256], [269], [1482] and [1486]) the circumstances of the Bolitho Settlement, observing that terms of that settlement were presented by Mr Elliott to the SPR on a “take it or leave it basis”; that (at [1886]) the SPRs had resisted the impugned settlement terms and sought conventional and appropriate terms; and that the SPRs ultimately accepted the Bolitho Settlement for “pragmatic and commercial reasons”. His Honour also addressed the SPRs’ consideration of the commission that AFP claimed under relevant commission arrangements. For completeness, I should also recognise that his Honour found that the SPR was deceived by Mr Elliott, and persons associated with him, in respect of the entry into that settlement, and that is plainly a matter that is relevant to the SPR’s conduct, even if intention is a requirement for contravention of s 29 of the CPA. His Honour also observed at [2042] that:

“Further, I monitored the conduct and performance of each of the SPR and the Contradictor to ensure that the best interests of debenture holders were protected. Black J (of the Supreme Court of New South Wales) has exercised similar supervisory jurisdiction and has made specific observations about the work undertaken by, and the conduct of, the SPR, in the context of approval of fees. On at least one occasion, Black J was assisted by a contradictor when approving fees incurred in the remitter. From my perspective, I would add, with the greatest of respect, that I agree with Black J’s assessment of the SPR’s approach to his role in the remitter.”

73. Where Mrs Botsman and other Victorian Applicants were not party to the Remitter or the proceedings in this Court, there is at least a question whether principles of abuse of process would prevent them pursuing allegations which they personally have not pursued in the Remitter or in the proceedings in this Court. I do not determine the application for leave by reference to any question of abuse of process, and I instead have regard to whether the Section 29 Proceedings was commenced within time, or the time to commence that proceeding could be extended, and the substance of the allegations brought in that proceeding.

74. The third question that arises in determining whether leave should be granted for the Section 29 Proceeding is whether they have sufficient merit to support the grant of leave, where they will plainly delay the final distribution to debenture holders in whole or in part. Mr Redwood submits that, as I have noted above:

“The claims made [by the Victorian Applicants] in the [Section 29 Proceeding] make very serious allegations about the SPR, including dishonesty and misleading the Court, expressly stated to be based on the findings made in the Remitter Judgment. There is nothing tentative or qualified in the allegations made in the Victorian Proceedings.”

75. Mr Redwood also submits that the Victorian Proceedings rely on a “flawed construction” of the overarching obligations enumerated in the CPA. It is not necessary to determine that proposition, in general terms, although I will note one aspect of those allegations which does not seem to me to be supportable below.

76. Mr Izzo also indicates that the Contradictor does not consider that the Victorian Applicants’ application for leave to bring the Section 29 Proceeding should be granted. He submits that:

“The Leave Application should be dismissed because: …

The Victorian Proceeding does not appear to have been brought to protect the interests of debenture holders as a whole. The Victorian Proceeding is motivated by a desire of 29 debenture holders (assuming all Victorian Applicants are debenture holders) to obtain further compensation: Victorian Applicants’ Proposed List of Issues at [5]-[7] … It is also, at least in part, motivated by a desire by some of the Victorian Applicants to obtain individual compensation from the SPR: see Victorian Applicants’ Proposed List of Issues at [7] ...

As a matter of substance, there is no viable cause for complaint that there has been a breach of the overriding obligations on which the Victorian Applicants rely at [19] of their proposed list of issues…. The allegations against the SPR are set out in that document and summarised in the SPR’s submissions ... Subject to the submission below at [22] concerning abuse of process, the submissions at SPR Subs 2 [138]-[146], [149]-[169] and [172]-[175] are compelling.

The Victorian Applicants seek compensation for a shortfall between the amounts ordered to be paid by way of compensation and costs in the Remitter Judgment and Non-Party Costs Order, and the amount able to be recovered in satisfaction of those amounts ... It is unclear whether, in seeking compensation, the Victorian Applicants are questioning the settlements reached by the SPR and other recoveries taken by the SPR, which this Court and the Supreme Court of Victoria have found to be justified: see [BSL 2025]; Lindholm v Elliott [2023] VSC 442. If this is the case, the Leave Application should be dismissed because it seeks to reopen matters on which this Court and the Supreme Court of Victoria have already decided. Debenture holders were notified of the applications giving rise to the orders made by those courts. The Victorian Applicants could have aired any grievances concerning the shortfall occasioned by these settlements and recoveries in the proceedings seeking those orders. They did not.”

77. The first aspect of the claims raised in the Section 29 Proceeding relates to the SPL’s entry into the TrustCo Settlement and the impact of the terms of that settlement to limit his participation in the Approval Application. Mr Redwood submits that the Victorian Applicants’ allegations of breach of s 29 of the CPA, by reason of the SPL’s agreement to the terms of the TrustCo Settlement, are wrong and directly inconsistent with Dixon J’s findings in the Remitter and with this Court’s findings in its supervisory jurisdiction in respect of the SPR. I recognise that Dr Orow refers to a number of matters addressed in the Remitter to suggest improper conduct on the part of the SPR. I note, but need not address, any question whether those matters are admissible in these proceedings as evidence of the fact, by reason of s 91 of the Evidence Act. I note that the Victorian Applicants raise specific allegations in the Section 29 Proceeding, which I address below. I also note that, as to the critical question of the Banksia Settlement, Dixon J had held in the Remitter that the SPR had acted pragmatically and commercially, as I have noted elsewhere in this judgment.

80. Second, the Victorian Applicants contend that the SPR misled the Court by deposing to his belief that the TrustCo settlement was reasonable and represented a good commercial outcome for debenture holders and represented the best possible outcome that could be achieved in all the circumstances. Mr Redwood submits that allegation is also wrong and is inconsistent with previous findings in the Remitter and this Court. The Victorian Applicants lead no evidence which is capable of supporting it in this application, and there is no reason to think that it could be established in the Section 29 Proceeding, where the opinion expressed by the SPR was consistent with the findings of Dixon J in the Remitter judgment that the settlement was reached on pragmatic and commercial grounds, and with the observations of this Court in Banksia 2019 to which I have referred above.

81. Third, the Victorian Applicants rely on a 15 April 2019 notice to debenture holders as giving rise to the alleged breach of CPA s 29 on the part of the SPR. Mr Redwood submits that this allegation is “wholly misconceived”. This allegation seems to me to be untenable, where the relevant notice was drafted by AFP and the contradictor appointed by the Court in the Remitter; it was reviewed by Dixon J in the Remitter before it was sent; and it was issued before the full range of issues as to AFP’s and Mr Elliott’s conduct had emerged in the Remitter. The Victorian Applicants lead no evidence to establish that the SPR had any role in that notice, still less an improper role, beyond dispatching it to debenture holders after it was settled by others and reviewed by the Court in the Remitter. It seems to me that that allegation does not have sufficient prospect of success, alone or combined with other allegations, to support the grant of leave, given the real disadvantage to debenture holders of granting leave for the Section 29 Proceeding to be pursued.

82. Fourth, the Victorian Applicants rely on matters relating to Bolitho No 4 as giving rise to the alleged breach of s 29 of the CPA on the part of the SPR. As I noted above, the “Outline of issues concerning the SPR Respondents” that is Annexure B to their List of Issues in the Section 29 Proceeding includes allegations that the SPR Respondents (as defined) helped Mr Elliott exert “significant control” over the Banksia litigation, notwithstanding the judgment in Bolitho No 4 which required that a separate solicitor be appointed in those proceedings. As I noted above, the Victorian Applicants then contend that:

“By allowing [Mr] Elliott to negotiate the terms of the TrustCo Settlement, the SPR was complicit in the circumvention of Bolitho No 4 and thereby contravened the paramount duty and the obligation not to mislead or deceive.”

84. Mr Redwood responds that the alleged breaches in respect of Bolitho No 4 “proceed upon a grave misunderstanding of the facts”. Again, no evidence is led by the Victorian Applicants to seek to establish the factual basis of these allegations in order to show that they have any prospect of success in the section 29 Proceeding. It seems to me that these allegations have the obvious difficulty that, as Mr Redwood points out, the judgment in Bolitho No 4 did not prevent AFP acting as funder of the Bolitho proceedings, under Mr Ellott’s control. The basis of any expectation that the SPR could have avoided AFP’s or Mr Elliott’s involvement in a negotiation of the settlement of the Bolitho proceedings, where AFP was funding those proceedings, is neither apparent nor established by evidence led by the Victorian Applicants in this application. For the SPR to simply decline to settle the Banksia Proceedings, by reason of AFP’s or Mr Elliott’s involvement in the Bolitho proceedings, would likely have resulted in the loss of that settlement with the adverse consequences for the debenture holders to which I have referred above.

85. Fifth, the Victorian Applicants allege that the SPR ought to have terminated the Bolitho Proceeding and instead pursued the McKenzie Proceeding. Mr Redmond responds that the allegations in respect of the conduct of the McKenzie Proceedings are “wrong and misconceived”. Again, the Victorian Applicants lead no evidence to establish the basis for this allegation. In his affidavit evidence, Mr Lindholm sets out his reasoning process for not seeking to pursue the McKenzie Proceeding and instead pursuing the BSL Proceedings in parallel to the Bolitho Proceedings. It seems to me that that evidence is likely to be accepted by the Supreme Court of Victoria, not least because the pursuit of the McKenzie Proceeding would have disadvantaged the significant number of debenture holders who would likely not receive any recovery under them. However, this allegation may be dealt with more briefly, because the McKenzie Proceeding was filed but not served and it seems to me that there is no conceivable basis on which a party’s decision not to serve proceedings could amount to a contravention of CPA s 29. It is an essential element of the autonomy of a party, prior to the service of proceedings before a Court, that that party has the choice whether to serve the proceedings or not and a decision not to serve proceedings could not be attacked on that basis.

86. I have found that the Section 29 Proceeding are out of time and the Victorian Applicants also have little prospect of success in them on the merits and these matters tend strongly against the grant of leave to pursue them. I also have regard to the real disadvantages to debenture holders generally which would follow from the continuance of those proceedings. In oral submissions, Mr Redwood responds that the receivership is practically complete, with a recovery of over $100 million which has amounted to substantial recovery of principal for debenture holders, although they have not recovered interest on funds as to which debenture holders have been out of pocket for a substantial time. He points out that the Section 29 Proceeding are now the only obstacle to finalising the special purpose receivership and distributing all outstanding funds, subject to the need to resolve the costs of these proceedings and the SPR’s modest claim to remuneration which I address below. I also recognise that, as Mr Izzo also submitted:

The debenture holders, many of whom are elderly, number in the thousands. In light of their age and the extremely long-running nature of proceedings involving them, the primary interest of the debenture holders (or most of them), is the prompt distribution of funds, the non-depletion of funds available for distribution and the finalisation of the special purpose receivership.

87. I recognise that the continuance of the Section 29 Proceeding would not necessarily prevent a partial distribution to debenture holders, because the SPR would likely not insist on withholding all the remaining funds to protect his right of indemnity, but that is not an answer to the delay in distribution of those funds that are withheld to elderly debenture holders. The Victorian Applicants also raise a faint submission that a right of indemnity might not be available by reason of the nature of the claim in the Section 29 Proceeding. There seems to me to be no basis for that submission, where there has been no finding of wrongdoing by the SPR in that application and two Courts have, as I noted above, previously scrutinised his conduct in respect of the Banksia Settlement and found that it was respectively commercial and pragmatic and not such as to disentitle him to any part of his remuneration. I also have regard to circumstances and timing in which the leave is sought: Mamone at [4]; St Gregory’s Armenian at [112]. That matter is particularly significant here, where the application for leave is brought in the last stages of the special purpose receivership, when a final distribution to debenture holders is pending and could be made but for the continuance of the Section 29 Proceeding.

88. For completeness, Dr Orow also suggests that the Court should order the SPR to distribute the balance of debenture holder funds in whole or in part and to retain an amount to fund the defence of the Section 29 Proceeding. That question does not arise, where I have held that leave should not be granted for the Victorian Applicants to bring the Section 29 Proceeding. In any event, the Court does not exercise, in respect of a Court-appointed liquidator or Court-appointed receiver, jurisdiction by making orders as to matters which are properly questions for the exercise of the liquidator’s or receiver’s judgment in the first instance.

89. Given the conclusions that I have reached above as to the allegations raised by the Victorian Applicants in the Section 29 Proceeding, there does not seem to me to be sufficient basis further to delay a final distribution to debenture holders and leave the SPR to incur further costs in defending the Section 29 Proceeding at the expense of debenture holders generally, so to allow the Victorian Applicants to pursue this claim where they do not show it has any real prospect of success. I decline to grant leave to the Victorian Applicants to bring, nunc pro tunc, or continue the Section 29 Proceeding against the SPR.

The SPR’s application for release

90. As I noted above, the SPR seeks is an order that he be discharged from appointment as SPR and discharged and released from liabilities in connection with that appointment, including liabilities arising out of the Bolitho Proceedings. As I also noted above, that relief is sought subject to an exclusion to permit him to complete a final distribution of funds to debenture holders of funds that he presently holds and any further funds that he may receive in connection with the receivership.

91. Dr Orow submits that the Court does not have power to release and discharge the SPR from liability under s 283HB of the Act and that, had Parliament intended to authorise Courts to make such orders, it would have enacted specific provisions equivalent to ss 480 and 481 of the Act. The parties accept that that question is to be approached having regard to settled principles of statutory construction, and I have regard to the authorities to which they have drawn my attention in that respect. It seems to me that that submission is wrong, for the reasons noted below. Dr Orow also points to the possibility of a conflict between the interests of debenture holders and the interests of a receiver as to whether the receiver should be released. I accept that conflict may arise in a particular case, but that does not assist as to the scope of the Court’s power to release the receiver under s 283HB of the Act. Such a conflict does not arise here, where, as a matter of fact, it is in the interests of debenture holders that the SPR be released where that is a necessary step in allowing a final distribution to debenture holders, a substantial amount of which would otherwise likely need to be set aside by the SPR to support his indemnity against the costs of defending the Section 29 Proceeding.

92. Section 283HB of the Act expressly confers on the Court, in its terms, the power to make an order appointing a receiver of property constituting security for a debenture and the power to appoint necessarily implies a power to order that that appointment will end and the consequences of its ending. Second, that section expressly confers a power to make any other order that the Court considers appropriate to protect the interests of existing or prospective debenture holders and, as a matter of fact, that power is sufficient to support the order that is here sought.

93. The scope of the Court’s power under s 283HB of the Act generally were considered in Australian Executor Trustees Ltd v Provident Capital Ltd (2012) 203 FCR 461 at [72], [77]–[78] as follows:

“The power conferred on the court by that section is remedial and protective of the interests of those who have lent money to corporations on debentures. Provisions conferring jurisdiction or granting powers to a court cannot be read down by making implications or imposing limitations that are not to be found in the express words: Owners of “Shin Kobe Maru” v Empire Shipping Co Inc (1994) 181 CLR 404 at 421 ; 125 ALR 1 at 10 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. …

In addition, in Australian Securities and Investments Commission v BridgeCorp Finance Ltd (2006) 58 ACSR 499; [2006] NSWSC 836 at [18] Barrett J held that s 283HB(1)(g), and similarly worded provisions, were intended to confer a broad, remedial and protective jurisdiction. He said that once relevant interests were identified under s 283HB(2), it was open to the court to make any order that appeared to it to be calculated to safeguard those interests. His Honour there identified the interests of debenture holders in receiving payments due to them under their debentures as and when they became due as being such a consideration, justifying the making of, in that case, orders by consent. I agree.

The conferral of power on the court to make orders under s 283HB was intended by the Parliament to supplement the armoury of relief that the court could otherwise give either under the general law, the provisions of debenture trust deeds or other provisions in legislation. There are no constraints on the exercise of the powers under s 283HB(1), other than the requirement that the court have regard to the relevant considerations in subs (2). However, the subject matter, scope and purpose of Pt 2L is a relevant matter in considering the exercise of the discretions created by s 283HB(1): R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49–50 ; 27 ALR 321 at 325 per Stephen, Mason, Murphy, Aickin and Wilson JJ. These provisions are intended to provide protection for persons who have invested in companies that have raised funds by way of issuing debentures.”

94. I am satisfied that s 283HB of the Act empowers the Court to make an order for the release and discharge of the SPR as a necessary incident of its power to appoint a receiver. Although Dr Orow addressed this question at length, and Mr Redwood also spent some time on it, I regard this question as straightforward, and it can be resolved by analogy with the many cases dealing with the termination of the appointment of, and release of, a liquidator appointed to a managed investment scheme under s 601EE of the Act, to whom ss 480–481 of the Act does not apply. In Re Idylic Solutions Pty Ltd [2018] NSWSC 700 at [3], I observed that, where the Court had power to appoint a liquidator to the relevant managed investment scheme under s 601EE of the Act, then it also had the power to order their release under that section, and would have regard, by way of analogy, to matters that would ordinarily be relevant to an application for release under ss 480 and 481 of the Act and r 7.5 of the Supreme Court (Corporations) Rules 1999 (NSW). That approach has since been approved in later cases including Australian Securities and Investments Commission v Letten (No 28) [2020] FCA 892 at [9]; Australian Securities and Investments Commission v Piggott Wood & Baker (a firm) (No 7) [2023] FCA 193 at [10] and Australian Securities and Investments Commission v Letten (No 29) [2023] FCA 315 at [29]. The Court also has power to make that order under s 283HB(1)(g), which allows it to make such order as is necessary to protect debenture holders. That order is here necessary to protect debenture holders against further delay in a final distribution and the risk of further erosion of that distribution by costs incurred by the SPR in defending the Section 29 Proceeding.

95. For completeness, Mr Redwood also submits that the SPR’s decision not to bring further claims against legal representatives acting for other parties was open to him and is not a reason to refuse the release orders. I do not understand the Victorian Applicants to pursue any suggestion to the contrary, although they seek to pursue allegations against the legal representatives that acted for AFP in the Remitter in the Section 29 Proceeding.

96. Mr Izzo indicates that the Contradictor does not take issue with the SPR’s application for release. The Contradictor in turn submits in respect of the question whether a release should be granted:

“First, in the event that those orders are not made, there is a risk that the distribution of funds to debenture holders could be delayed and that the funds available for distribution could be depleted. … This is because the SPR would need to participate in the [Section 29] Proceeding, and his costs and expenses in defending those proceedings would be paid from funds that could otherwise be distributed to debenture holders. The SPR’s right of indemnity extends to the costs of defending a proceeding brought against him in connection with his conduct as SPR, provided that any defence is reasonable: see Kirwan v Cresvale Far East Ltd (in liq) [2002] NSWCA 395; 44 ACSR 21 at [259] (Giles JA, Meagher JA agreeing) ... The Victorian Proceeding is such a proceeding.

Secondly, [the proposed release] protects debenture holders by maintaining the SPR’s appointment in respect of the final step of the special purpose receivership – distribution – and not releasing the SPR from any claims that may arise against him in respect of work arising out of or in connection with final distribution.

Thirdly, apart from the [Section 29] Proceeding, there is no claim or likely claim against the SPR that arises out of his appointment as SPR about which the [C]ontradictor is aware. In the event that other debenture holders had a claim, the expectation is that those claims would have been raised in response to the circular made accessible to debenture holders on 4 August 2025 …; see also Hutchins, in the matter of Ardenberg Pty Ltd (in liq) (Administrators Appointed) (No 3) [2021] FCA 519 at [14]-[15] (Yates J); In the matter of RR Impex Pty Ltd (in liquidation) [2013] NSWSC 1667 at [3].

Fourthly, to assess whether the [Section 29] Proceeding is a reason not to make orders 13C and 13D, the Court should assess whether it would grant leave for the proceeding to be maintained.”

97. I am satisfied that the release sought should be granted for all these reasons and where I have not granted leave to continue the Section 29 Proceeding and there are no other foreshadowed claims against the SPR.

98. Turning now to the effect of the release that is sought, the case law relating to the release of liquidators, which has been applied in other contexts such as liquidators of managed investment schemes, indicates that a release will absolve the SPR of any liabilities and “wipe the slate clean”: Wayland as Liquidator of ABC Container Line NV (in liq) (2005) 52 ACSR 750; [2005] NSWSC 1 at [26]–[29]. I recognise that both Dr Orow and Mr Redwood also addressed a question whether, if (as I have held) s 283HB of the Act empowered the Court to make an order for the discharge and release of the SPR, and the Court were to make orders in the form sought by the SPR, that would have the effect of releasing the SPR from any liability in the Section 29 Proceeding. It is not necessary to address that question, because it does not arise here. I make an order under s 283HB of the Act because I have found that the Victorian Applicants require the leave of this Court to bring or continue the Section 29 Proceeding against the SPR and that leave should not be granted. In those circumstances, the Section 29 Proceeding cannot be maintained by the Victorian Applicants against the SPR and no liability will arise in them. Dr Orow also identifies a question whether any release of the SPR should extend to the Section 29 Proceeding. That question also does not arise, because I only grant that release where I have found that leave should not be granted to bring the Section 29 Proceeding against the SPR and associated entities, and they therefore cannot proceed; and there are no other claims or threatened claims against the SPR to prevent the grant of the release in the ordinary course.

97. As I noted above, the SPR also seeks an associated order that the requirement under r 26.5 of the UCPR for accounts be dispensed with. I am satisfied there would be no utility in preparing such accounts where the SPR has reported to the committee of debenture holders as to the conduct of the special purpose receivership and issues arising in it have been the subject of Court oversight, and the costs involved in preparing accounts over a long period would be to the detriment of debenture holders. I will make that order.

Other matters as to the Section 29 Proceeding

100. The SPR, responsibly, did not seek to raise or have the Court determine any question whether the commencement of the Section 29 Proceeding against a Court appointed receiver, without leave, amounted to a contempt of Court, in accordance with the principles reviewed in Australasian Barrister Chambers Pty Ltd (in liq) [2017] NSWSC 245 at [7]–[13] and Re Australasian Barrister Chambers Pty Ltd (in liq) [2017] NSWSC 597. I do not address that question further. Dr Orow submits that, if it were necessary to determine the question of an anti-suit injunction, the power to grant such an injunction in respect of a proceeding in another State should be exercised with caution. He also refers to the power to transfer proceedings under the Act; however, that submission does not engage with the question that arises here, where proceedings are brought in another Court against an officer of this Court.

101. It is not presently necessary to address the question of what relief might be granted by the Court if, notwithstanding this judgment, the Victorian Applicants, who are bound by this judgment, sought to continue the Section 29 Proceeding where I have held that they could only do so with leave and have declined to grant that leave. First, there is no suggestion that they are anything other than law-abiding citizens, who had the double misfortune to suffer loss in their dealings with Banksia, and then suffer further loss as a result of the misconduct of Mr Elliott and others exposed in the Remitter. There is no reason to think that they will not act in accordance with this decision, unless it is set aside on appeal by the Court of Appeal of this Court; and there is every reason to think that they will act in accordance with this decision, where Dr Orow fairly recognised that, if it was adverse to them, the Section 29 Proceeding would need to be amended to limit that proceeding to exclude the claims against the SPR and his associated parties. Third, the SPR did not presently seek injunctive or other relief at this point, where he accepted it was likely not required for these reasons. Fourth, in the unlikely event that the Victorian Applicants or their privies took a different approach, there is no reason to think that the Court does not have ample powers to protect the SPR (who remains an officer of the Court while the remaining steps in the receivership are completed) and the integrity of the administration of justice. I will reserve liberty to the SPR to apply, while I am confident that it will not need to be exercised in this respect.

The Lehman dividend or distribution

102. The SPR also seeks an order that he separately be appointed as receiver to any dividend or distribution from the liquidation of Lehman for the purpose of getting in and distributing such funds to the debenture holders of Banksia as part of any final distribution made by the SPR. This order was not contested and is plainly appropriate.

The SPR’s remuneration application

103. As I noted above, the SPR seeks an order approving his remuneration to 30 June 2025 in a specified amount, which has been approved by the committee of debenture holders, and which is supported by a detailed remuneration report exhibited to Mr Lindholm’s 22 July affidavit. I have addressed the principles applicable to the determination of the receiver’s remuneration in earlier judgments in this matter, including BSL 2025 at [48], which I adopt without repeating. I accept that the evidence is sufficient to support the SPR’s remuneration claim, and I bear in mind its quantum is modest, given the complexity of the proceedings, and continued issues arising in respect of this application.

104. The SPR also seeks an order fixing future remuneration, for the period after his discharge and release, where he will be performing specific tasks including receiving any Distribution from Lehman and completing the final distribution to debenture holders. The Court has power to prospectively approve that remuneration by analogy with the approach that is regularly taken in respect of liquidator’s remuneration. I am satisfied that the Court should here do so, where this has the advantage, common in such applications, of avoiding the need for and costs of an additional application for approval of remuneration, at the point the receivership is complete. I accept that the amount remaining to be done in the receivership, within the area of the qualifications to the release, are in narrow scope and I am satisfied that the evidence led sufficiently supports the amount of that future remuneration which I will also approve.

Costs and orders

105. I recognise that some remaining issues in the receivership will remain to be determined after the delivery of this judgment, including orders relating to the making of a final distribution to debenture holders and orders in relation to the treatment of unpresented payments, a matter which was considered in Banksia 2025. It was also common ground between the parties and the Contradictor that the costs of the application should be determined after delivery of this judgment. It also seems to me to be preferable to allow the Victorian Applicants an opportunity to give effect to the result of this judgment by amending the Section 29 Proceedings to delete the claims against the SPR, as Mr Orow foreshadowed they would do. Plainly, their conduct in that respect will likely be relevant to whether, and on what basis, an order for costs may be made against them in this application and whether the Court should now make orders of the kind made in Sheridan v Colin Biggers & Paisley [2019] NSWSC 621 in respect of the costs of these proceedings. I will therefore set a timetable for dealing with the question of costs that allows the Victorian Applicants an opportunity to address these matters before costs are determined.

106. I make the following orders, consequential on the findings that I have reached above:

1. John Ross Lindholm be appointed receiver over the rights and entitlements of Banksia Securities Limited (special purpose receiver appointed) (in liquidation) (“BSL”) to any dividend or distribution from the liquidation of Lehman Brothers Australia Limited (in liquidation) (“Lehman”) for the purpose of getting in and distributing such funds to the debenture-holders of Banksia as part of any final distribution made by the Special Purpose Receiver.

2. Subject to paragraph 4, the Special Purpose Receiver forthwith:

(a)   be discharged from his appointment as special purpose receiver of BSL; and

(b)   be discharged and released from any and all liabilities whatsoever and howsoever arising out of or in connection with his appointment as special purpose receiver of BSL, including from claims arising out of or in connection with the Banksia Proceedings.

1. For the purposes of paragraph 2 of this order, the “Banksia Proceedings” means all proceedings, appeals and applications relating and incidental to the claims and issues arising in:

(a)   proceeding number S CI 2012 7185 in the Supreme Court of Victoria, including for the avoidance of doubt those matters remitted to the Supreme Court of Victoria pursuant to paragraph 10 of the orders of the Victorian Court of Appeal dated 1 November 2018 (as amended) in proceeding number S APCI 2018 0037;

(b)   proceeding number S CI 2014 5875 in the Supreme Court of Victoria; and

(c)   proceeding number S CI 2015 1384 in the Supreme Court of Victoria.

1. The release in paragraph 2 shall not discharge or otherwise terminate the appointment of the Special Purpose Receiver as special purpose receiver of Banksia in respect of work arising out of or in connection with a final distribution to debenture holders of:

(a)   any funds held by him as at the date of any order for his discharge; and

(b)   any further proceeds received by the Special Purpose Receiver, including any dividend or distribution receiver from the liquidation of Lehman.

1. The requirement under r 26.5 of the Uniform Civil Procedure Rules 2005 for the applicants to file and pass final accounts be dispensed with.

2. Order that the remuneration of the Special Purpose Receiver for the period 1 August 2024 to 30 June 2025 be approved and fixed in the sum of $103,678 plus GST.

3. Order that the Special Purpose Receiver’s future remuneration for acting as special purpose receiver of Banksia from 1 July 2025 be approved and fixed in the sum of $119,580 plus GST.

4. The Notice of Motion filed on 5 September 2025 by Mrs Botsman and others (“Victorian Applicants”) be dismissed.

5. By 4:00pm on 26 November 2025, the Special Purpose Receiver file and serve proposed orders as to costs, and its submissions not exceeding 8 pages in arial font 12, one and a half spacing, in respect of costs.

6. By 4:00pm on 5 December 2025, the Victorian Applicants and the Contradictor file and serve their submissions as to costs.

7. By 4:00pm on 12 December 2025, the Special Purpose Receiver file and serve any submissions in reply.

8. Relist the matter for further directions and as to costs before Black J at 9.15am on 16 December 2025.

9. Reserve liberty to the Special Purpose Receiver to apply on two business days’ notice.

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Decision last updated: 17 October 2025