In the matter of Newheadspace Pty Limited (in liq)

[2020] NSWSC 173

Supreme Court

New South Wales

Medium Neutral Citation:

In the matter of Newheadspace Pty Limited (in liq) [2020] NSWSC 173

Hearing dates:

27 June 2019

Date of orders:

04 March 2020

Decision date:

04 March 2020

Jurisdiction:

Equity - Corporations List

Before:

Rees J

Decision:

The summonses for examination set aside as an abuse of process. Liquidator to pay costs of application to set aside the summonses. Further directions made to consider replacement of liquidator.

Catchwords:

CORPORATIONS – creditors voluntary winding up – threats of bad publicity including liquidator’s examinations as pressure to pay claim – appointment of voluntary liquidator for sole purpose of conducting such examinations – confected insolvency – not proper purpose to place corporation into external administration so that liquidator or litigation funder can avail themselves of forensic advantage conferred by public examinations – abuse of process

 

CORPORATIONS – examinations – power to issue examination summons – eligible applicants – role of ASIC – onus – relevant purpose to consider is that of applicant for summons – use of examinations to obtain forensic advantage not available in ordinary pre-trial procedures – proceedings contemplated – litigation funding – plausible claim – negotiating pressure – need for liquidators to independently consider whether examination summons appropriate and for a proper purpose – importance of getting in books and records – left decisions and review of records to those who appointed the liquidator – inherited improper purpose of appointors – predominant purpose to exert pressure to enter into settlement – abuse of process

 

CORPORATIONS – examinations – whether satisfied examinees may be able to give information

 

CORPORATIONS – examinations – whether dress rehearsal for cross-examination – no proceedings commenced – no decision to litigate – where suggested claim does not turn on oral representations

 

CORPORATIONS – examinations – lack of disclosure in affidavit to registrar – extent of liquidator’s knowledge – failure to review books and records – material non-disclosure

 

CORPORATIONS – winding up – termination of winding up – lack of notice – relevant party not joined – ASIC not notified – commercial morality

EVIDENCE – rule in Browne v Dunn (1893) 6 R 67 – whether findings available in the absence of cross-examination – where allegations addressed in affidavits – where credibility not in issue

Legislation Cited:

Corporations Act 2001 (Cth), ss 9, 53, 596A, 596B, 596B(1)(b)(ii), 597B, Schedule 2 Insolvency Practice Schedule (Corporations), ss 60-15, 90-15, 90-15(3)(b) and 90-15(3)(c)
Uniform Civil Procedure Rules 2005 (NSW), r 49.19

Cases Cited:

Accord Pacific Holdings Pty Limited v Accord Pacific Land Pty Ltd [2011] NSWSC 707
Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Australian Beverage Distributors Pty Ltd v Evans & Tate Premium Wines Pty Ltd (2007) 69 NSWLR 374; (2007) 61 ACSR 441; [2007] NSWCA 57
Australian Securities and Investments Commission v Edge (2007) 211 FLR 137; [2007] VSC 170
Blacktown City Council v Macarthur Telecommunications Pty Ltd (2003) 47 ACSR 391; [2003] NSWSC 883
Bosun Pty Limited (in liq) (2000) 34 ACSR 597; [2000] SASC 180
Browne v Dunn (1893) 6 R 67
BWK Elders (Australia) Pty Ltd v White [2004] FCA 1611
Cellarit Pty Ltd v Cawarrah Holdings Pty Ltd [2018] NSWCA 213
Clyne v Deputy Commissioner of Taxation [1984] HCA 44; (1984) 55 ALR 143; (1984) 154 CLR 589
Collier v Country Women's Association of New South Wales [2018] NSWCA 36
Cousins & Ors v Clout (unreported, Federal Court of Australia, Spender J, 16 October 1998)
Dae Boong International Co Pty Ltd v Gray [2009] NSWCA 11
Dowling v Colonial Mutual Life Assurance Society Ltd (1915) 20 CLR 509; (1915) 21 ALR 425; [1915] HCA 56
Edelsten v Deputy Commissioner of Taxation (NSW) (1989) 86 ALR 257
Ex parte Painter; In re Painter [1895] 1 QB 85; King v Henderson [1898] AC 720
Ex parte Sir William Russell (1875) LR 10 Ch App 255
Ex parte Staff, In re Staff (1875) LR 20 Eq 775
Godfrey as liquidator of Pobjie Agencies Pty Ltd (in Liquidation) (2007) 61 ACSR 54; [2007] NSWSC 138
Grosvenor Hill (Qld) Pty Ltd v Barber (1994) 48 FCR 301; (1994) 120 ALR 262
Gusdote Pty Ltd v Ashley (2011) 193 FCR 227; (2011) 277 ALR 579; [2011] FCA 250
Highstoke Pty Ltd v Hayes Knight GTO Pty Ltd (2007) 156 FCR 501; (2007) 237 ALR 753; [2007] FCA 13; (2007) 156 FCR 501
Hong Kong Bank of Australia v Murphy (1992) 8 ACSR 736; (1992) 28 NSWLR 512
In Re A Debtor [1967] Ch 590
In re Davies; ex parte King (1876) 3 Ch D 461; Ex parte Griffin; in re Adams (1879) 12 Ch D 480
In the matter of ACN 004 410 833 Limited (formerly Arrium Limited) (subject to a deed of company arrangement) [2019] NSWSC 1606
In the matter of Affinity Capital Pty Ltd – Indrasith v Ku [2011] NSWSC 1158
In the matter of DW Marketing Pty Ltd (in liquidation) [2009] VSC 663
In the matter of Idoport Pty Ltd (in liq) (recs apptd) (2011) 82 ACSR 164; [2011] NSWSC 322
In the matter of Parkway One Pty Limited (in liquidation) [2019] NSWSC 1495
Ji Woo International Education Centre Pty Ltd (2019) 134 ACSR 448; [2019] NSWSC 93
Kimberley Diamonds Limited v Arnautovic (2017) 252 FCR 244; [2017] FCAFC 91
Krejci (liquidator), in the matter of Community Work Pty Ltd (in liq) [2018] FCA 425
Liverpool City Council v Estephen [2008] NSWCA 245
Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234; (2009) 261 ALR 382
Meteyard v Love (2006) 56 ACSR 487; [2005] NSWCA 444
Mohareb v Kelso [2018] NSWCA 164
National Australia Bank Ltd v Market Holdings Pty Ltd (in liq) (2001) 161 FLR 1; (2001) 37 ACSR 629; [2001] NSWSC 253
NSW Bar Association v Stevens [2003] NSWCA 261
NU v NSW Secretary of Family and Community Services (2017) 95 NSWLR 577; [2017] NSWCA 221
Onefone Australia Pty Ltd v Onetel Ltd [2007] NSWSC 69; (2007) 61 ACSR 246
Palmer v Ayres (in their capacities as liquidators of Queensland Nickel Pty Ltd) (in liq) (2017) 259 CLR 478; [2017] HCA 5
Park (liquidator) In the matter of Queensland Nickel Pty Limited (in liq) (2019) 369 ALR 284; [2019] FCA 340
Pleash, Re Equititrust Limited (in liq) (receivers and managers appointed) (No 2) (2017) 122 ACSR 299; [2017] FCA 758
Pockett v Dean-Willcocks [2004] NSWCA 192
R v Toohey; ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170
Re Akai Australia Pty Ltd (1978) 3 ACLR 353
Re Cornish; Ex parte English (1984) 6 FCR 257
Re Crowl, DM v Ex parte Kleinwort Benson Australia Ltd [1988] FCA 57
Re Crust ‘n’ Crumb Bakers (Wholesale) Pty Ltd (1991) 5 ACSR 70; (1991) 9 ACLC 912; [1992] 2 Qd R 76
Re Dalstonville Pty Ltd (in liq) and Don Leunig Pty Ltd (in liq) (2018) 133 ACSR 473; [2018] VSC 774
Re Excel Finance Corporation Limited (receiver and manager appointed); Worthley v England (1994) 52 FCR 69
Re Hugh J Roberts Pty Ltd (in liq) (1969) 91 WN (NSW) 537
Re Kassem (as liquidators of Clarecastle Pty Ltd) [2011] NSWSC 490
Re Kimberley Carpet Mills (Aust) Pty Ltd (In Liq.) (1979) CLC 40–532; (1979) 4 ACLR 50
Re Laurie Cottier Productions Pty Limited (in liquidation) (1992-1993) 9 ACSR 513
Re Majory [1955] Ch 600
Re Manband Pty Ltd (in liq) (Subject to Deed of Company Arrangement [2018] NSWSC 1282
Re Mecirt Holdings Pty Ltd (1998) 16 ACLC 1148
Re Mendarma Pty Limited (in liq) (2006) 24 ACLC 1611; [2006] NSWSC 1306
Re Moncada (1986) 11 FCR 205
Re New Tel (in liq); Evans v Wainter Pty Ltd (2005) 145 FCR 176; [2005] FCAFC 114
Re New Tel. In New Zealand Steel (Australia) Pty Ltd v Burton (1994) 13 ACSR 610
Re Norman Baker Pty Ltd (in liq); Ex parte Hillman [1982] WAR 349; (1981) 6 ACLR 257; (1982) 1 ACLC 79
Re Owston Nominees No 2 Pty Ltd (in liq) (Receivers and Managers Appointed) (2013) 94 ACSR 500; [2013] NSWSC 538
Re Qintex Group Management Services Pty Ltd (in liq) [1997] 2 Qd R 91
Re Southern Equities Corporation Ltd (in liq); Bond and anor v England (1997) 15 ACLC 1582; (1997) 25 ACSR 394
Re Southland Coal Pty Limited (2005) 189 FLR 297; [2005] NSWSC 259
Re Valofo, Sheahan & Lock as liquidator of Valofo Pty Limited (in liq) [2010] NSWSC 1255
Rees v Bailey Aluminium Products Pty Ltd (2008) VR 478; [2009] VSCA 96
SAMM Property Holdings Pty Ltd v Shaye Properties Pty Ltd (2017) 345 ALR 633; [2017] NSWCA 132
Sandhurst Trustees Limited v Harvey (2004) 49 ACSR 422; [2004] SASC 157
Sent v Andrews [2002] VSCA 209
Southern Cross Petroleum Sales (SA) Pty Ltd (in liq) v Hirsch (1998) 70 SASR 527; (1998) 144 FLR 356
Sutherland v Pascoe (No 2) (2012) 297 ALR 328; (2012) 92 ACSR 174; [2012] FCA 1361
Sutherland v Pascoe; in the matter of Matrix Group Ltd as Trustee for the Matrix Group Unit Trust (in liq) ACN 061 549 371 (2013) 297 ALR 44; [2013] FCAFC 15
Terrence Parsons (a pseudonym) v R [2016] VSCA 17
Thomas, In the matter of La La Land Byron Bay Pty Ltd (in liq) (No 2) [2019] FCA 1559
Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369
Trevor, in the matter of Bell Group NV (in liq) (No 2) (2017) 122 ACSR 418; [2017] FCA 927
Walter Rau Neusser Oel Und Fett AG v Cross Pacific Trading Ltd [2005] FCA 955
White Industries (Qld) Pty Limited v Flower & Hart (1998) 156 ALR 169
Williams v Spautz (1992) 174 CLR 509; (1992) 107 ALR 635; [1992] HCA 34
Wily re LED (South Coast) Pty Ltd (2009) 76 NSWLR 428; (2009) 74 ACSR 145; [2009] NSWSC 946

Texts Cited:

Butterworths, Ford, Austin & Ramsay’s Principles of Corporations Law (online, 2019)

Category:

Principal judgment

Parties:

National Rugby League Limited (First Applicant)
Todd Greenberg (Second Applicant)
Paul Heptonstall (Third Applicant)

  Andrew Needham as liquidator of Newheadspace Pty Ltd (in liq) (Respondent)

Representation:

Counsel:
Mr F Assaf SC / Mr S Dametto (Applicants)
Mr S Golledge SC / Mr SL Lipp (Respondent)

  Solicitors:
Kardos Scanlan Lawyers (Applicants)
SRM Lawyers (Respondent)

File Number(s):

2018/288279

Judgment

1. HER HONOUR: This is an application by National Rugby League Limited (NRL) to set aside examination summonses issued by Andrew Needham, the liquidator of Newheadspace Pty Limited, to Paul Heptonstall, Senior NRL Welfare and Education Manager, and Todd Greenberg, Chief Executive Officer, on the basis that the voluntary liquidation of Newheadspace was a contrivance by those standing behind the company to enable a liquidator to request the issue of summons for public examinations and thereby exert commercial pressure on the NRL to pay various claims being asserted by the company. The NRL’s complaints about those standing behind Newheadspace are well-founded; the question is whether Mr Needham, as liquidator of Newheadspace, is nonetheless entitled to proceed to conduct public examinations if he considers it necessary to do so, which he says he does.

2. For the reasons which follow, the examination summonses will be set aside. Whilst there is ample authority that a liquidator may conduct public examinations to investigate whether a company has a viable claim, including for the purposes of enabling a litigation funder to decide whether to provide funding to pursue the claim, the troubling and hopefully unique facts of this case have led me to conclude that, not only was the sole purpose of those standing behind the company to place it in liquidation in order to conduct, or threaten to conduct, public examinations of senior NRL officers and thereby to enhance the company’s ability to prevail upon the NRL to pay a claim, but Mr Needham does not appear to have independently turned his mind to whether the elements of section 596B of the Corporations Act2001 (Cth) were satisfied or whether the summonses were issued for a proper purpose. Rather, Mr Needham has left it to those interested in conducting public examinations, being Ms Culver, the funder and legal representatives engaged before his appointment. He has not put his ‘stamp’ on this process but has effectively inherited the improper purpose of those who placed Newheadspace into liquidation, which has remained the predominant purpose of the processes which have continued under his name.

3. I am troubled that examinations have already been completed of other persons who did not apply to set aside the summonses addressed to them. One was the sole director and shareholder of Newheadspace and another was a long-standing supporter, who answered a series of “Dorothy Dixers” from counsel engaged by the company months before Mr Needham was appointed. More concerning, one was a third party who presumably did not have access to the same legal resources as the NRL and did not apply to set the summons aside. As a consequence, a member of the public was subjected to the invasive process that is a liquidator’s examination. Further, these three examinations wasted valuable court hearing time which could have been used by other liquidators of other companies.

facts

4. The sole director and shareholder of Newheadspace, Jhanna Culver, describes herself as a life change strategist with qualifications in social work, executive coaching and dance movement therapy. Newheadspace provided consulting services specialising in helping clients manage change. Newheadspace is also trustee of the Culver Family Trust.

Program provided to NRL clubs

5. In 2010, Newheadspace developed a program called “Extend the Dream” to prepare professional sportspeople for life after sport and ran a pilot program for players from an NRL club, the New Zealand Warriors. According to Ms Culver, the opportunity to provide such a program to the NRL arose through her friendship with the wife of the then chief executive officer of the NRL, David Gallop. Mr Heptonstall signed a letter of engagement confirming that Newheadspace would deliver the programme for one week in January 2011 for $11,205. Following the pilot program, Newheadspace began to provide the program to the remaining 15 NRL clubs but, in late 2012 or early 2013, the program was not continued.

6. In September 2014, the program was again offered to NRL clubs Newcastle and North Queensland Cowboys. Although Newheadspace’s invoices are confusing, it appears that in September 2014, Newheadspace provided the program to four players in the NRL club North Queensland Cowboys and rendered invoices to those players totalling $11,516. In November 2014, Newheadspace rendered further invoices for these players and also to three players from the Newcastle Knights totalling some $13,962.

7. On 23 November 2014, Ms Culver sent an email to Mr Heptonstall requesting payment of the invoices, although it is not immediately obvious why payment was sought from the NRL as the invoices were addressed to individual players of particular NRL clubs. The reason became clearer from an email from Dr Tilda Khoshaba, General Manager – Player Engagement and Development, of the Rugby League Players Association Limited to Mr Heptonstall on 25 November 2014 suggesting that he was “withholding funding” for players who wished to engage in the program notwithstanding that they were entitled to $2,000 for educational programs. Dr Khoshaba suggested that Mr Heptonstall either had a problem with Ms Culver or a problem with the Rugby League Players Association supporting her program.

The reason I say this is, is that you seem to like the ‘concept’ of the program as you are ok to fund the MOL in developing a ‘copycat’ program as well as fund the development of this program by someone else (namely by the individual based in Canberra).

It would appear that there was a tension between the Rugby League Players Association, which supported various programs being provided to players, and the NRL, which was called upon from time to time to pay for the programs. Michael Crocker, also of the Rugby League Players Association, was copied on this email and has also been the subject of an examination summons with which he has complied.

8. Mr Heptonstall responded in detail, explaining that personal development programs such as that offered by Newheadspace did not fit within the requirements for education grants but, “[a]s personal development programs such as ‘New Headspace’ does not fit into this category, I have allocated a separate amount of money ($2k per Club) in which the Clubs can choose how to spend. It is up to the Clubs Welfare and Education Manager to determine the use of this money”. Further:

I have also asked all Clubs to conduct a player/partner session in 2015 and have suggested that Jhanna is one of the programs that can be delivered. I have even said to Jhanna that I can assist in paying for the group workshop and then let the Clubs or players fund the individual sessions themselves.

Dr Khoshaba forwarded Mr Heptonstall’s response to Ms Culver. Jane Lowder of Max Coaching was copied in on this email as she liaised with all the Club Career Coaches. Ms Lowder has also been the subject of an examination summons, with which she has complied.

9. According to NRL’s solicitor, Anthony O’Reilly, Newheadspace ceased to offer the program to NRL players in December 2014. On 2 February 2015, Ms Culver again emailed Mr Heptonstall and sought payment of invoices rendered to the Newcastle Knights in November 2014 although it is not entirely clear why she looked to the NRL for payment. In any event, Mr Heptonstall paid $6,000 of the invoice and, on 31 March 2015, Ms Culver sought payment of the balance of the invoice from the Newcastle Knights, noting that “Paul has paid his part of it”.

Efforts to provide program again

10. On 1 April 2015, apparently after a meeting between Ms Culver and Mr Heptonstall, Mr Heptonstall sent a text message confirming the NRL’s commitment to her conducting player and partner sessions at $2,500 per workshop, and that he was aiming for these workshops to be conducted for four clubs. Ms Culver replied, suggesting that his wording was not what they had agreed, although did not say what they had agreed.

11. In about May 2015, Ms Culver submitted a proposal to the NRL to implement the program across all NRL clubs, to be funded by the NRL. From May to September 2015, Ms Culver had various meetings and telephone discussions with Suzanne Young, the chief operating officer of the NRL, in relation to her proposal. On 27 October 2015, Ms Young informed Ms Culver that the NRL was commencing a review with the Rugby League Players Association of programs and funding, and proposed to include Ms Culver’s proposal in that review. Further, “[w]e are reviewing your allegation regarding potential breach of IP and will respond in due course”. The allegation concerning intellectual property is clarified by an email from Ms Culver to Ms Young of 4 November 2015 expressing herself to be “completely astounded” at how negotiations had unfolded from initial enthusiasm for Newheadspace’s program said to have been expressed in May 2015, to an inability to get funding for the program, to the proposal being included in a review with no funding to be approved until the completion of the review. A new program was said to have been developed by “Jane and Judy” of Max Coaching called “Play On!” based on Newheadspace’s program.

12. On 6 November 2015, Ms Young replied in no uncertain terms that, until the review was finalised, the NRL would not be approving nor funding players’ participation in the program unless the Rugby League Players Association confirmed in writing that the association would support the program being delivered. Ms Young advised that the NRL was under no obligation to fund the program and reserved its right to provide programs internally or through external providers as it saw fit. In respect of the alleged breach of intellectual property, Ms Young made plain that the allegation was taken very seriously but, on the information provided by Ms Culver, “it is not clear to us what exactly your claim is”. Further information was sought from Ms Culver being:

(a)   the specific intellectual property you say you own;

(b)   copies of the intellectual property and any documents and information that you say contains or comprises the intellectual property;

(c)   how and when the intellectual property was developed, and by whom;

(d)   what part of your intellectual property you say has been breached (if any); and

(e)   who committed the breach and particulars on when the breach occurred.

Until this information is provided, we are not in a position to respond to your assertions in any meaningful way.

13. Ms Culver never provided the information or documents sought but, instead, approached Todd Greenberg, then Head of Football. Mr Greenberg had met Ms Culver when he was chief executive officer of the NRL club known as the Canterbury-Bankstown Bulldogs and some of the club’s players had participated in the program. Ms Culver asked Mr Greenberg whether there was something he would be able to do to get the NRL to fund the program and, although it was not an area for which he had management responsibility, Mr Greenberg spoke with Ms Young in support of the program and was told that the question as to whether the program would be funded was a matter to be considered as part of the NRL’s review.

14. In December 2015, the business name “Newheadspace” lapsed and the company ceased to trade.

Further efforts and NRL offers to pay old invoices

15. In March 2016, Mr Greenberg became the chief executive officer of the NRL. On 14 June 2016, Mr Greenberg met with Ms Culver at her request. Ms Culver again sought his support to get the NRL and the Rugby League Players Association to support the program. Ms Culver also asked that he arrange for payment by the NRL of invoices for which she said the NRL was liable. The suggestion that the NRL was liable to pay the invoices is not obviously consistent with emails already referred to, in particular, at [9].

16. On 15 June 2016, Ms Culver followed up her meeting with Mr Greenberg by attaching the proposal which she had previously submitted to Ms Young in June 2015. On 4 July 2016, Ms Culver submitted the unpaid invoices to Mr Greenberg suggesting that the invoices had not been paid because she “got caught in the crossfire” between the NRL’s Welfare and Education program and the Rugby League Players Association. Ms Culver also forwarded by separate email further invoices for travel reimbursement, stating that she had a standing agreement with Mr Heptonstall that she was reimbursed for airfares and accommodation when she travelled outside of Sydney.

17. On 5 July 2016, Mr Greenberg spoke to Mr Heptonstall about the invoices and was told that the work the subject of the invoices had been undertaken by the relevant players and NRL clubs at their own volition and without the approval of the NRL. Mr Greenberg sought legal advice from an internal lawyer at the NRL and formed the view, based on that advice, that the NRL was not legally liable to Newheadspace for the invoices or on any other basis. Mr Greenberg considered that, as the services had been provided to the players by Newheadspace and the NRL club had not paid the invoice, he would agree to the NRL paying the invoices even though it was not responsible for them on the basis that this settled all claims that Newheadspace may have.

18. On 26 July 2016, Mr Greenberg sent an email to Ms Culver offering, “in good faith and in the interests of moving on” to pay the outstanding invoices without any admission that the NRL was in fact obliged to pay the outstanding amounts, and in settlement of all outstanding amounts and claims that Ms Culver may have in relation to Newheadspace’s program. Ms Culver replied unhappily on 27 July 2016 suggesting that Mr Greenberg’s written offer departed from an oral acceptance by him in which he apparently said he was fine to pay the invoices because it was for work that she had performed. Mr Greenberg stood firm, noting that he had looked into the matter as requested by her, considered the information objectively, explained the outcome to her over the phone and confirmed it in writing. “I have agreed to pay you a significant amount of money that ultimately we are not obliged to do, but I have chosen to do so for the simple fact that it is the right thing to do & to demonstrate my respect for you”. Mr Greenberg again sought confirmation of her acceptance of his offer following which he would arrange for immediate payment. Ms Culver did not reply.

A litigation funder

19. Six months passed. On 20 February 2017, Ms Culver forwarded her emails with Mr Greenberg to Douglas Whelan, Executive Director of Litigation Funding Solutions. On 23 May 2017, Ms Culver forwarded further emails to Mr Whelan noting, “the fire and power is BUILDING!!! FAST!!!! :)))))” and attaching a draft letter with a file name, “JUSTICE WILL PREVAIL”. The draft letter was one to Mr Greenberg claiming some $3 million for damages for unpaid invoices of $7,500, breaches of fiduciary duty, contract, negligence, loss of opportunity and injuries sustained to Ms Culver’s mental health. The draft letter made some remarkable allegations. Whilst Ms Culver professed that she did not want to enter the public or legal domain, the draft letter included:

Todd once funders are involved, believe and trust me (I have never lied to you) when I say I will take this all the way to every domain available and that is currently being offered to me – especially and including going to court because Todd, with funders backing I have literally zero to lose.

Ms Culver also suggested that she had “clear and hard evidence of all the breaches made by the NRL” although such evidence was not before me.

A media adviser

20. The very next day, on 24 May 2017, Mr Whelan contacted Mark Westfield of Westfield Wright, a media advisor who “offers our clients access to high level contacts in all media across all sectors … We specialise in dealing with commentators and columnists – the so-called ‘pack leaders’ – to most effectively influence coverage and perceptions while giving clients unique insights into how the media operates, and what drives it”. The fact that the litigation funder, at such an early stage of considering a potential claim, made contact with a media adviser suggests that it was envisaged to use the media as part of the funder’s strategy to progress the claim to a beneficial resolution. As much is confirmed by an email from Ms Culver to a colleague on 30 May 2017 saying, “meeting with media tomorrow for strategy”.

21. On 31 May 2017, Ms Culver met with Mr Westfield who kindly offered to help draft her letter to the NRL. Mr Westfield suggested that she take out “the direct threats to sue using litigation fund money, the letter needs to be cool, calm with threatening overtones rather than direct threats.” Ms Culver offered to provide a chronology but “I want to beef it up more” and, as she had been invited to a State of Origin event that evening, would defer completing it as the evening “may yield a nugget”. On 1 June 2017, Ms Culver gave Mr Westfield and Mr Whelan a chronology together with some additional ideas on strategy derived with the benefit of the previous night’s function. Ms Culver had hit upon a ‘divide and conquer’ strategy through her friendship with the wife of a senior officer of the Australian Rugby League Commission (ARL).

22. On 7 July 2017, after many amendments by Mr Westfield and Mr Whelan, Ms Culver sent a letter of demand to the NRL asserting a claim to damages of some $2.5 to $3 million dollars. The letter remained remarkable notwithstanding the ministrations of Mr Westfield and Mr Whelan. Ms Culver suggested that, since her last correspondence with Mr Greenberg a year before, legal advice had been sought (Ms Culver did not assert that legal advice had actually been obtained). After setting out Newheadspace’s claims, Ms Culver continued:

You are of course very aware that this matter will be of great interest to the public. It’s known that you have spent considerable time trying to improve both the Bulldogs and the NRL’s image; most notably with women and Player welfare. The evidence that will need to be led to prove any legal action, will confirm the existing pre-conception that the NRL lacks integrity and does not care for its players. All the money the NRL has spent to try and change its public persona could be seriously compromised.

An example of what could be revealed to demonstrate that the NRL lacked integrity was given. It was suggested that, if the matter became public, others would come forward to speak about their experiences with the NRL’s integrity over the years. Whilst it was somewhat disingenuously suggested that there was no desire to enter into the public or legal domain, it was said that, for reasons unclear, Newheadspace had no other choice but to move forward in that way.

23. Mr Westfield described the letter as “fairly threatening and a bit scary!”, an assessment with which I can only concur. Mr Westfield’s assessment led Ms Culver to question whether Mr Westfield was “our best guy??”, but Mr Whelan assured her that Mr Westfield was “the best”. Ms Culver pondered, “if he is a little scared maybe he will be the same with media – anwyay [sic] fingers crossed WE WON’T NEED TO USE HIM!!!! :)))”.

24. On 13 September 2017, the NRL replied, taking objection, unsurprisingly, to “veiled threats”, expressing doubt about the legal basis of Newheadspace’s claims and repeating its earlier offer in respect of unpaid invoices. A meeting was also suggested.

A former barrister

25. Mr Westfield had no further involvement in the matter. On 14 September 2017, Mr Whelan approached Clarence Stevens, a barrister who had been removed from the roll of legal practitioners for professional misconduct (NSW Bar Association v Stevens [2003] NSWCA 261), asking him to meet Ms Culver and represent her at the meeting with the NRL. As Ms Culver was not in funds, Mr Stevens was asked to do so on a contingent fee basis: “For the record I am also working on a contingent basis”. Mr Whelan explained that the legal questions involved in Ms Culver’s claim were complicated and therefore it was not a simple issue to provide litigation funding,

Fortunately, the NRL also plays in the arena of public opinion and we have been able to put enough pressure on them for them [to] agree to a meeting to discuss settlement of the matter.

That is, from Mr Whelan’s perspective, Ms Culver’s claim against the NRL was not so straightforward as to agree to fund her claim but the NRL’s sensitivity was identified as being a wish to avoid bad publicity.

26. Mr Stevens agreed to meet with Ms Culver. Apparently after the meeting, Ms Culver began to review her emails to provide to Mr Stevens. Ms Culver professed that she was “finding DIAMONDS” which she would forward on in due course. On 23 September 2017, Ms Culver provided Mr Stevens and Mr Whelan with a chronology from December 2009 to July 2016 which, as the NRL points out, rarely mentions Mr Greenberg and Mr Heptonstall over its 20 pages.

27. On 29 September 2017, Ms Culver sent an email to the NRL to arrange the meeting, suggesting that it make sure that whoever was at the meeting had authority to settle her claim “in excess of $1 million”. The NRL responded that, although it was amenable to meeting with Ms Culver, “we are not coming to a meeting with a view to settling a claim in excess of $1 million”. Ms Culver promptly met with Mr Stevens and, in a series of emotive emails, provided further “instructions” listing people who had “betrayed” her including, apparently, Mr Greenberg, and details of “WHAT THEY STOLE FROM ME”. Ms Culver also enlisted support from Mr Crocker of the Rugby League Players Association who, on 21 October 2017, emailed the new chief executive officer of Rugby League Players Association introducing Ms Culver and suggesting that Newheadspace’s program had been “subsequently copied and renamed as the Play On program”.

Meeting with NRL

28. On 27 October 2017, the NRL, represented by its chief operating officer and in-house counsel, met with Ms Culver, Mr Stevens and Mr Whelan. The NRL stated that its position remained that, on the information which it had, the NRL considered it had no legal obligations to Newheadspace. The NRL again requested that, in order to consider the claim further, Newheadspace should provide documentary and other materials that supported its allegations. On 2 November 2017, Mr Stevens sent Ms Culver and Mr Whelan a suggested outline of Newheadspace’s response following the meeting; draft emails and letters followed; Mr Whelan added his suggestions.

29. On 14 November 2017, a further letter was sent by Newheadspace to the NRL in support of its claims. Ms Culver advised that she could not provide all of her documents “until we can see some manifestation of NRL taking claims seriously”. Sample documents were extracted instead. In respect of a suggested contract between the NRL and Newheadspace, Ms Culver stated:

I accept that there is no signed document that sets out all the terms of an agreement. It cannot be that straightforward, though. That ignores what happened over so many years, what the officials of the NRL said to me and the steps I took relying upon what was said … Maybe, there is no complete and finalised contract in your lawyer’s senses of legal obligation but the bottom line is that the conduct by the NRL was and is wrong.

A liquidator

30. The next day, 15 November 2017, Mr Whelan sent an email to Mr Needham arranging to meet on 17 November 2017 to discuss placing Newheadspace into voluntary liquidation. Mr Needham’s file note of the meeting with Ms Culver and Mr Whelan records that he was told that the NRL owed money to Newheadspace for its program which the NRL had “stolen” and Mr Whelan had been helping to try and negotiate an outcome. The company was said to have no assets other than its intellectual property and was only solvent if it could prove that damage was caused by the NRL. The company could not afford to litigate and it appears that Mr Needham enquired whether Mr Whelan was looking to fund litigation, to which Mr Whelan replied, “Possibly but needs to see more”. Creditors of Newheadspace were said to be Ms Culver, Mr Whelan and possibly the Australian Tax Office.

31. On 21 November 2017, having not heard further from the NRL, Mr Whelan suggested that Mr Stevens and Ms Culver have a discussion as to how to take the matter forward. Mr Needham sent Ms Culver some basic information on placing Newheadspace into voluntary liquidation, which Ms Culver forwarded to Mr Whelan and Mr Stevens. Ms Culver arranged to meet with Mr Needham again.

32. On 27 November 2017, Ms Culver attended a second meeting with Mr Needham. According to Mr Needham’s file note, they discussed what would happen to the intellectual property of Newheadspace in a liquidation and that the company’s tax returns were not up to date. The claim against the NRL was now said to be worth some $5 million with the creditors of the company said to be $500,000. Mr Needham’s file note records:

What about NRL – Up to you and Doug [Whelan] whether you try & push further – I’ll make up own mind if & when appointed. May need examinations. Lawyer to spec.

Fees? I’ll give it some thought but was thinking a % of any assets realised that way no cost unless there’s recovery.

33. As to the records of the company, Mr Needham’s file note further records:

What about records? You can keep – I’ll ask for what I need – given you are major creditor / beneficiary don’t see an issue having to take everything to go through it given no funds.

Mr Needham said he was going to be overseas until March 2018 and asked her to “get things done and tax sorted by then”.

34. On 29 November 2017, Ms Culver forwarded her notes of the second meeting to Mr Whelan, which notes simply and solely concerned options for public examinations.

35. Also on 29 November 2017, the NRL wrote to Ms Culver assuring her that they were treating her allegations with due respect but, unless she could provide the NRL with actual material, be it correspondence, documents or terms and conditions, as opposed to her summary of the material to support her allegations, the NRL did not see any merit continuing to correspond. For reasons not readily apparent, Mr Stevens regarded the NRL’s letter as comforting, and prepared a draft response. Mr Stevens wished to ascertain whether the NRL still retained the documents on which Ms Culver suggested her claim rested. Such a letter was duly sent on 15 December 2017 by Ms Culver, again declining to provide material until she saw some manifestation that the NRL was taking the claim seriously.

36. On 20 December 2017, unremarkably, the NRL expressed difficulty understanding why Ms Culver would not simply provide the emails, correspondence, texts and other documentation to which she referred in her letters, particularly if they were said to substantiate her serious allegations. In the absence of supporting evidence, the NRL reiterated its rejection of her claims and declined to correspond further. Mr Stevens prepared a reply suggesting:

We feel the NRL conduct of dealing with us will backfire. Because of all the other events which continue to excite the media, damage to the NRL reputation from us may not be in the forefront of your thinking. Even so, we are prepared to give you one last opportunity to answer our letter, so we know how to move forward.

37. Mr Whelan commented that, having spoken with Ms Culver about the draft reply, they felt that the letter “could be more forceful” and would like to “set the platform on fire” by adding a further paragraph. On 11 January 2018, Ms Culver wrote to the NRL incorporating the further passage:

If a meaningful response is not received from you by 31st January 2018, then the director will most likely be forced to put the company into liquidation. Without prejudicing the liquidator, it is expected that he or she would be interested in the potential action against the NRL and would be likely to seek orders for production of the correspondence including emails and undertake public examinations of relevant parties (including Todd Greenberg, John Grant, Helen Grant and the other people referred to in our letter November 14th 2017).

The letter as sent was threatening: if Ms Culver’s demands – being apparently baseless in the absence of any contemporaneous material which Ms Culver would not provide – were not met then adverse media may ensue potentially followed by liquidator’s public examinations of senior executives of the NRL and ARL. The letter and its underlying strategy was distasteful.

38. On 19 February 2018, Ms Culver sent Mr Whelan an “Action Plan” for the liquidation of Newheadspace. Counsel who later appeared for the liquidator at the examinations was referred to repeatedly in the Action Plan and thus, it would appear, had been engaged by Newheadspace or its advisors, likely also on a contingency fee basis. The sole focus of the Action Plan was directed to liquidator’s public examinations of NRL’s officers. The first task was to arrange available dates for examinations, then to appoint a liquidator who would interview Ms Culver, then to file a summons with the Court in April 2018 and serve the NRL with examination summonses in the third week of April. The Action Plan concluded with the following two items:

Doug needs to invoice Jhanna … WHEN??

Jhanna needs to invoice newheadspace … When??

39. There is no evidence of any financial circumstances which arose or changed at this time which would otherwise have warranted the appointment of a liquidator to Newheadspace. As the NRL correctly points out, the tax returns for the Culver Family Trust had consistently reported small negative assets for the preceding seven financial years and nothing had changed.

Year	Net income	Net assets	Current liabilities
2011	($7,836)	($7,649)	$0
2012	($70,626)	($78,275)	$0
2013	($12,736)	($90,911)	$0
2014	($2,035)	($92,945)	$0
2015	$10,085	($82,861)	$0
2016	($4,693)	($87,554)	$0
2017	($3,288)	($90,842)	$0

It would appear that the last two items in the Action Plan were directed to effecting an apparent change in the financial circumstances of Newheadspace, as further described at [42] to [48].

40. On 15 March 2018, Mr Whelan suggested to Ms Culver:

When the NRL stuff gets in the press you need to explain what went wrong succinctly. Eg: The program was so good they tried to steal it!

41. On 12 April 2018, Ms Culver met with Mr Needham for a third time at counsel’s chambers. Mr Whelan was also present. The purpose of the meeting was to reintroduce Mr Needham to Ms Culver following his extended overseas vacation. Discussion took place regarding Newheadspace’s program and what documentation could be provided to Mr Needham in relation to it.

Invoices and a board paper

42. On 14 April 2018, Litigation Funding Solutions rendered an invoice dated 13 April 2018 to Newheadspace for $55,000 said to be an “[i]nterim invoice for provision of advice regarding obtaining litigation funding against NRL”. In these proceedings, subpoenas were issued to Litigation Funding Solutions and Ms Culver seeking documents to support this invoice and none were produced, in particular, no litigation funding agreement was produced. Thus, there was no written contract between Litigation Funding Solutions and Newheadspace, at least, nor is there any reference in the contemporaneous documents to any agreement to pay for advice regarding obtaining litigation funding nor any reference to such advice being given. It will be recalled that Mr Whelan had informed Mr Stevens that Litigation Funding Solutions was proceeding on a contingency basis. On the evidence before me, this invoice did not have a proper basis.

43. On 15 April 2018, Ms Culver forwarded Mr Whelan a draft board paper. The draft, which was replete with questions for Mr Whelan, included:

The company has received 2 invoices dated 15th and 16th April totalling - $700K. Whilst demands have not been made to be paid, - it must be paid in due course.

Thus it is prudent for the company to consider how the invoices will be paid - short / medium term newheadspace has no cash, no real property or any other assets that can be readily converted to cash. The company has valuable IP which collectively can be called the Extend the Dream program (Doug - but I have other programs from the IP to it's not limited to Extend the Dream?).

This IP has been used to create this program. Unfortunately the NRL and associated entities stole it and thus killed the ability of the company to generate substantial revenue that would have otherwise been achieved. Preliminary advice has indicated there are multiple claims against the NRL and associated entities, with substantial damages.

It might be thought curious for Ms Culver to have sought input from a creditor as to the contents of such a board paper. But that is the point: Litigation Funding Solutions was not a creditor but was holding itself out as one. The second invoice referred to in the draft board paper was one which Ms Culver rendered to Newheadspace – in its final form – on 18 April 2018.

44. On 16 April 2018, Ms Culver sent Mr Needham an email, copied to Mr Whelan, asking him to give her a call.

I may have a company that is requiring liquidation and you have been recommended as a liquidator.

This was an odd email for Ms Culver to have sent in circumstances where she had already met Mr Needham three times to discuss the liquidation of Newheadspace. Mr Needham provided pro forma documents for her to complete in order to appoint him as a liquidator. Mr Needham noted that, as Ms Culver was heading overseas “and having double checked the timeline”, Ms Culver needed to complete the Australian Securities and Investments Commission (ASIC) form, Report as to Affairs (RATA) “if we are going to do this tomorrow”. It is likely that the “timeline” referred to by Mr Needham was a reference to the Action Plan, there being no other document in evidence which would answer that description. Mr Needham had attended a conference four days earlier at which he could readily have been furnished with a copy, and I consider it likely that he was, noting that the Action Plan also required him to attend to specific tasks by specific times.

45. On 17 April 2018, Ms Culver forwarded Mr Whelan a further version of the board paper for his review. Newheadspace’s claim against the NRL was now valued by Ms Culver as worth more than $5 million and the supporting attachments largely calculated what the company would have earned if the NRL had rolled out its program as proposed in 2015. It was heady stuff. Ms Culver sent further versions of the board paper to Mr Whelan with further questions including:

Question 1 – Do I charge GST on my amount???

If YES then NEWLY attached Board Paper reflects this in it’s [sic] total amount of yours and mine combined equals - $591,250.00

IF NO GST for me then above combined amount is $542,5000 [sic]

If easier please can you change it – it’s in the first sentence if you can’t no worries lemme know asap and I will reforward you to print – THANKS SOOOOO MUCH!!!!!!!!

Question 2 – On my invoice for myself – do I put my personal bank account details to pay into? cause I no longer have business account.

46. On 18 April 2018, Ms Culver forwarded Mr Whelan a tweet from Mr Greenberg, asking “please doug please can we bring him down … vomit attached” and Mr Whelan placated her, “No – we are out to recover monies”.

Appointment of voluntary liquidator

47. On 18 April 2018, Ms Culver attended a meeting of members of Newheadspace and passed a special resolution to wind up the company. According to the minutes of meeting:

The chairperson informed the meeting that there were concerns about the company’s solvency which required immediate discussion and resolution by the members. A verbal report on the company’s financial position was given to the meeting by the chairperson.

Discussion of the chairperson’s report followed at the end of which the members present expressed their opinion that the company could not by reason of its liabilities continue its business or to trade and that it was appropriate to wind up the company.

The board paper referred to two invoices received by the company totalling $542,500 and the company’s inability to pay the invoices as the only asset of the company, its intellectual property in the program, was said to have been stolen by the NRL which had thus killed the ability of the company to generate substantial revenue that would otherwise have been achieved.

48. The second invoice, also dated 13 April 2018, had been issued by Ms Culver to Newheadspace, on Newheadspace letterhead, for $487,500 said to be for work conducted by her on behalf of Newheadspace from 1 January 2015 to 31 March 2018. In these proceedings, a notice to produce and subpoena were issued to the liquidator on behalf of Newheadspace and to Ms Culver. Neither produced any documents to corroborate the work said to have been performed by Ms Culver. The basis on which this invoice was issued is unclear. As the NRL points out, during the years when Ms Culver is said to have conducted work for the company, the company declared no business income and had ceased to trade. On the evidence before me, this invoice had no proper basis. Both invoices which were said in the board paper to be the reason to appoint a liquidator were a contrivance.

49. The RATA completed by Ms Culver listed Litigation Funding Solutions and herself as the two unsecured creditors of the company, totalling $542,500, together with contingent assets in the form of a damages claim against the NRL of over $5 million together with a damages claim against Max Coaching of unknown value. Ms Culver declared that the particulars contained in the report were true to the best of her knowledge and belief. Given the circumstances in which the invoices were rendered by herself and Litigation Funding Solutions, it is unclear to me how Ms Culver could have signed such a declaration.

50. On 3 May 2018, Mr Needham sent a letter to creditors notifying them of his appointment and proposing that his remuneration be the maximum default amount given by section 60-15 of the Insolvency Practice Schedule (Corporations), Schedule 2 of the Corporations Act plus 5% of the gross dollar value of assets realised. On receipt, Ms Culver promptly inquired whether the letter had also been sent to NRL and Max Coaching. Mr Needham requested copies of the invoices which Newheadspace had rendered to NRL before he sent a letter demanding payment and Ms Culver provided Mr Needham with copies of her correspondence with the NRL referred to at [22], [24], [28], [35], [36] and [37].

51. On 10 May 2018, Mr Needham sent a letter to the NRL requesting payment of $7,598 said to be owing to Newheadspace and delivery of all books and records belonging to the company. The letter was addressed to “The Proper Officer” of the NRL. General counsel of the NRL has been unable to locate the letter, which did not come to the attention of any person in the legal department or senior management. On 13 June 2018, Mr Needham sent a follow-up letter to “The Proper Officer” of NRL but, again, it does not appear to have come to the attention of anyone in the legal department or senior management. A similar letter was sent by the liquidator to Max Coaching, which replied that it was not in possession of any books or records belonging to Newheadspace.

52. On 17 July 2018, Mr Needham issued a report to creditors. According to the report, Newheadspace was expecting to be awarded a three year contract commencing in 2015 to run its program mandatorily for all NRL clubs but “[u]nfortunately, it appears that the NRL used the information obtained from the pilot programme and roll out to bring the training ‘in-house’ to the detriment of the company …”. The basis of the instructions given to Mr Needham is, having regard to the contemporaneous documents on this application at least, unclear. Mr Needham noted that, “[g]iven the lack of response received from the NRL”, he had engaged solicitors to assist him to apply for examination summonses and for production from the Court.

I am unable to advise on the likelihood of receiving a dividend until I have been able to obtain further information regarding the company’s claim for damages against the NRL. Unfortunately, due to the nature of the claim it is unlikely to be brought without the aid of publicly examining those persons who were involved in negotiations regarding the Extend the Dream programme.

I have engaged solicitors to assist me in this regard and who were prepared to speculate on the outcome of the claim. I also understand that funding should be forthcoming from Litigation Funding Solutions to pay the Court’s fees for applying for the examination summonses; however, I have not yet entered into any formal funding agreement the terms of which will necessarily affect any dividend.

53. By now, Mr Whelan and Litigation Funding Solutions had been considering Newheadspace’s claim against the NRL for 14 months but was still not prepared to commit to fund any legal proceedings against the NRL but perhaps only to fund the filing fee to apply for examination summonses. This is consistent with Mr Whelan’s strategy of using the prospect of public examinations as a way of motivating the NRL to accede to the company’s demands. Indeed, whilst I refer to Mr Whelan in this judgment as a litigation funder, strictly speaking, he is not as he has never entered into a litigation funding agreement with Newheadspace nor, it would appear, provided any funding beyond, perhaps, court filing fees.

54. On 30 August 2018, Ms Culver signed a lengthy witness statement setting out the history of her company and its dealings with the NRL. Annexed were a bundle of documents including the 2010 letter of engagement and Mr Greenberg’s July 2016 email to which I have already referred. Ms Culver’s statement added little to the suggestion that Newheadspace’s intellectual property in the program had been ‘stolen’ by the NRL and, further, was not particularly accurate in her description of her dealings with Mr Greenberg when compared with the contemporaneous documents. Ms Culver stated:

In an attempt to get [Newheadspace’s proposal submitted to Ms Young in 2015] resolved I contacted the CEO of the NRL on 13th May 2016. On 26th July 2016, he provided me with an offer that was completely unacceptable. … The negotiations between the Company and the NRL broke down in July 2016.

Ms Culver’s emails with Mr Greenberg in July 2016 concerned Ms Culver’s request for outstanding invoices to be paid only. It is readily apparent from Mr Greenberg’s emails that he had no personal knowledge of the invoices but had agreed to look into it at Ms Culver’s request.

Examination summonses

55. On 20 September 2018, Mr Needham filed an Originating Process seeking the issue of summonses for examination and orders for production under section 596A and 596B of the Corporations Act. Mr Needham swore an affidavit deposing that he had had regard to his review of the books and records of Newheadspace available to him and discussions with and a statement provided by Ms Culver. A copy of Ms Culver’s witness statement and supporting documents was exhibited to his affidavit. Mr Needham also annexed the RATA; the minutes of meeting appointing a liquidator; the outstanding invoices rendered to NRL clubs already described; his correspondence with the NRL which, as mentioned, had not been answered; and an extract from the NRL Annual Report 2017 reporting on the efforts of the NRL’s Wellbeing staff to prepare older players for life after sport. More than 100 players were reported as having been provided with specialised career and personal coaching support from the NRL’s Wellbeing managers that year. The connection between the extract and Newheadspace’s program was neither stated nor obvious.

56. Mr Needham deposed that, as liquidator, he wished to investigate whether a contract was entered into with Newheadspace for the provision of its program to the NRL and its clubs, whether the NRL had breached the contract, and whether the NRL or Max Coaching had retained or used Newheadspace’s intellectual property. So far as the correspondence reveals, Ms Culver effectively conceded in November 2017 that there was no contract with the NRL hence the first part of Mr Needham’s investigations seems to have been unnecessary.

57. Mr Needham deposed that Mr Greenberg was the current chief executive officer of the NRL “and was involved [in] ongoing negotiations with Newheadspace”. Based upon this, Mr Needham expressed a belief that Mr Greenberg had information relevant to the examinable affairs of Newheadspace and he wished to examine him. The basis for the description of Mr Greenberg’s role is not apparent in the contemporaneous documents which were available to Mr Needham at the time he swore his affidavit, as mentioned at [54].

58. Mr Needham deposed that Mr Heptonstall is a Senior NRL Welfare & Education Manager, involved in the negotiations with Newheadspace and has responsibility for programs of the kind offered by Newheadspace. That appears to have been generally correct, as far as it goes given the high level of generality with which Mr Heptonstall’s role was expressed. Based on this fact, Mr Needham deposed that he believed that Mr Heptonstall had information relevant to the examinable affairs of Newheadspace and he wished to examine him.

59. On 3 October 2018, a Registrar issued Summons for Examination as requested by the liquidator together with Orders for Production. In addition to the summonses now sought to be set aside, a further summons was sought and issued to David Gallop, former chief executive officer of the NRL from 2002 to 2012, but the summons was not served. Whilst complying with the order for production, the NRL complained to Mr Needham’s solicitor that Newheadspace had been placed into liquidation for the purpose of seeking examination summonses and orders for production. The affidavit in support of the application for the issue of the summonses was requested together with financial statements for Newheadspace, any litigation funding agreements and documents evidencing the decision to go into liquidation. This prompted Mr Needham to request Mr Whelan to provide him with the invoices referred to in the board paper, “[n]ot concerned just covering my bases”. Mr Needham’s solicitor strenuously denied any assertion that Mr Needham had embarked upon an improper course of action and declined to provide the documents sought.

60. The NRL filed an Interlocutory Process seeking to set aside the examination summonses and, by consent, the NRL was given access to Mr Needham’s confidential affidavit. The examinations of Mr Greenberg and Mr Heptonstall were adjourned but, on 3 and 4 December 2018, Ms Culver, Ms Lowder and Mr Crocker were examined by the liquidator.

61. In support of its application, the NRL relied on affidavits sworn by its solicitor, Mr O’Reilly, who deposed that Mr Greenberg commenced with the NRL in 2013 as Head of Football and had no responsibility for the development or provision of player welfare programs such as “Extend the Dream”. The first occasion when he had any involvement in relation to the program was in late 2015 when he was asked by Ms Culver to support her request for funding of the program. Other than meeting her again in June 2016 and receiving a letter of demand on 7 July 2017, which he delegated to others to respond, Mr Greenberg had no involvement with the program or negotiations that may have been conducted with Ms Culver for Newheadspace to be contracted by the NRL to provide the program.

62. Mr O’Reilly criticised Mr Needham’s affidavit for failing to disclose the three meetings he had with Ms Culver before his appointment. Mr Needham deposed in a further affidavit that there was no deliberate decision by him or his lawyers that these meetings should not be disclosed. Mr Needham also deposed that, when he was appointed liquidator, he had not made any decision as to whether the claim against the NRL had any merit or that he would proceed with examinations although preliminary discussion about litigation against the NRL had occurred. In these circumstances, he did not consider it necessary to summarise his discussions with Ms Culver in his affidavit of 20 September 2018. Further:

I relied upon my legal advisers in respect of the content of the documents seeking the examination summonses filed with this Court, including my 20 September affidavit.

63. Neither Mr Needham nor Mr O’Reilly were cross-examined. Thus, whilst I am not obliged to accept their evidence, I would ordinarily do so unless there is persuasive evidence which suggests that their evidence, or some part of it, should not be accepted: Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234; (2009) 261 ALR 382 at [105] per Campbell JA with whom Allsop P and Basten JA agreed; followed by NU v NSW Secretary of Family and Community Services (2017) 95 NSWLR 577; [2017] NSWCA 221 at [59] per Beazley P with whom McColl JA and Schmidt J agreed.

64. Also in evidence was a chronological bundle of documents collated from exhibits to affidavits and supplemented by documents produced in answer to notices to produce and subpoenas issued to the NRL, Litigation Funding Solutions, Ms Culver, Westfield Wright, Mr Stevens and Mr Needham.

WHY should the Registrar’s decision be reviewed?

65. Where the issue of an examination summons has been ordered by a Registrar, an application to set aside the summons for examination is governed by rule 49.19 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), pursuant to which the Court may review a Registrar’s decision “and make such order, by way of confirmation, variation, discharge or otherwise, as the court thinks fit”. A review is not an appeal but a hearing de novo and, on such a review, the Court must exercise its own discretion as described by Hodgson JA (with whom Ipp JA agreed) in Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369. At [7] and [9]:

7    In my opinion, this discretion extends to a discretion as to whether, and if so how, to intervene; and in my opinion, there is an onus on a person seeking to have a court set aside or vary a registrar’s decision to make out a case that the court, in the interests of justice, should exercise its discretion to do so.

…

9   In the case of a decision which finally determines a party’s rights, or which (albeit one of practice or procedure) has a decisive impact on those rights, a court may be more willing to intervene. It may permit further evidence to be led which does not satisfy the strict requirements for fresh evidence, if it is satisfied that the interests of justice require this. It may decide to substitute its own discretionary decision for that of the registrar, even though no House v. The King error is shown, again if it is satisfied that the interests of justice require this. To that extent, the review may be considered a de novo hearing.

See also Basten JA in Tomko (with whom Hodgson JA agreed, subject to his Honour’s own reasons, and with whom Ipp JA also agreed) at [46]. These principles are undoubtedly correct and have been cited in the Court of Appeal on a number of occasions: Dae Boong International Co Pty Ltd v Gray [2009] NSWCA 11 at [17]; Liverpool City Council v Estephen [2008] NSWCA 245 at [17] (per McColl JA); Collier v Country Women's Association of New South Wales [2018] NSWCA 36 at [47] (per Gleeson JA); Mohareb v Kelso [2018] NSWCA 164 at [26] (per Basten JA and Sackville AJA citing the judgment of Basten JA). In the context of an application to set aside an examination summons, Barrett J applied these principles in Wily re LED (South Coast) Pty Ltd (2009) 76 NSWLR 428; (2009) 74 ACSR 145; [2009]NSWSC 946 at [22]–[26].

66. The NRL submitted that the Registrar’s decision should be reviewed and the summons for examination set aside on three bases:

1. That the voluntary liquidation of Newheadspace was an abuse of process, rendering the summons for examination oppressive and unfair by reason of the underlying abuse of process.

2. The summons for examination were also oppressive and unfair as the predominant purpose was to conduct a dress rehearsal of cross-examination of the examinees.

3. Mr Needham had failed to disclose material matters to the Registrar in support of the application for the issue of the summonses.

67. The liquidator submitted that the NRL’s application proceeded on the basis of a misconception that he, as liquidator, and the winding up process over which he has control, are both an abuse because of conduct by the director and others prior to the winding up. Rather, it was the liquidator's purpose in conducting the examinations that was pertinent and the Court would be satisfied that the investigation being undertaken by him, and of which the examination summonses form part, are appropriate.

68. The issues thus appear to be: was the appointment of a voluntary liquidator to Newheadspace an abuse of process; can and does that render the summons for examination issued at the request of the voluntary liquidator also an abuse of process? If not, was the application for summons for examination otherwise an abuse of process by the liquidator or otherwise oppressive and unfair or ought be set aside for failure to disclose all relevant matters to the Registrar?

ABUSE OF PROCESS in appointing liquidator

69. The NRL submitted that the purposes of winding up a company are essentially threefold. First, to deal with the assets of the company in an equitable and fair manner amongst its creditors (Re Crust ‘n’ Crumb Bakers (Wholesale) Pty Ltd (1991) 5 ACSR 70; (1991) 9 ACLC 912; [1992] 2 Qd R 76 at 78 (per McPherson SPJ). Second, to allow for an investigation of the company's affairs by an independent and appropriately qualified person, in particular, as to the circumstances which precipitated the winding up and whether there was any improper or dishonest conduct by officers of the company or unfair dispositions of property which warrant further action. And, third, to prevent insolvent companies from trading. Here, the NRL submitted that the predominant purpose of the winding up was to exert pressure upon the NRL to settle its commercial dispute on terms favourable to the company and was an abuse of process similar to that in Williams v Spautz (1992) 174 CLR 509; (1992) 107 ALR 635; [1992] HCA 34.

70. The NRL submitted that the concept of abuse of process has been applied to the issuing of a statutory demand (Gusdote Pty Ltd v Ashley (2011) 193 FCR 227; (2011) 277 ALR 579; [2011] FCA 250 (per Foster J), voluntary administration (Blacktown City Council v Macarthur Telecommunications Pty Ltd (2003) 47 ACSR 391; [2003] NSWSC 883 (per Barrett J), compulsory winding up (Australian Beverage Distributors Pty Ltd v Evans & Tate Premium Wines Pty Ltd (2007) 69 NSWLR 374; (2007) 61 ACSR 441; [2007] NSWCA 57 at [47]) and voluntary winding up (National Australia Bank Ltd v Market Holdings Pty Ltd (in liq) (2001) 161 FLR 1; (2001) 37 ACSR 629; [2001] NSWSC 253 per Young J and Butterworths, Ford, Austin & Ramsay’s Principles of Corporations Law, (online at June 2019) [27.550.3]). Examples where abuse of process had been considered in the context of insolvency proceedings include Ex parte Staff, In re Staff (1875) LR 20 Eq 775 (per Sir James Bacon CJ); Ex parte Sir William Russell (1875) LR 10 Ch App 255 at 263-264 (per Mellish LJ); In re Davies; ex parte King (1876) 3 Ch D 461; Ex parte Griffin; In re Adams (1879) 12 Ch D 480; Ex parte Painter; In re Painter [1895] 1 QB 85; King v Henderson [1898] AC 720 at 731-2 (Privy Council on appeal from the Supreme Court of New South Wales); Dowling v Colonial Mutual Life Assurance Society Ltd (1915) 20 CLR 509; (1915) 21 ALR 425; [1915] HCA 56 at 521-523; Re Majory [1955] Ch 600 at 626 (per Evershed MR, Jenkins and Romer LJJ); Re Moncada (1986) 11 FCR 205; Clyne v Deputy Commissioner of Taxation [1984] HCA 44; (1984) 55 ALR 143; (1984) 154 CLR 589 at 598-9; Re Cornish; Ex parte English (1984) 6 FCR 257 (per Morling J); Re Crowl, DM v Ex parte Kleinwort Benson Australia Ltd [1988] FCA 57 (per Beaumont J); BWK Elders (Australia) Pty Ltd v White [2004] FCA 1611 and Edelsten v Deputy Commissioner of Taxation (NSW) (1989) 86 ALR 257. It was submitted that these cases indicate that the Court will not countenance the use of an insolvency process where the predominant purpose of such a process is not within the scope of the process so instituted. It will also not countenance the use of an insolvency process where threats have been made in respect of that process.

71. It was submitted by the NRL that there was no other reason to utilise the creditors’ winding up process. The company ceased trading in December 2015. Prior to that, the company had no current liabilities. The two invoices issued shortly before the resolution for winding up the company did not stipulate payment terms. Further, Ms Culver stated in the board paper that the alleged debts “must be paid in due course”, which didn’t suggest that the debts were due and payable. Further, the company was not insolvent nor was there evidence of the company having solvency concerns.

72. The liquidator made almost no submission in respect of Ms Culver’s purpose in liquidating the company beyond submitting that her purpose was irrelevant and, in any event, there was nothing inappropriate in her purpose as Ms Culver was merely attempting to progress the company’s claims against the NRL. What Ms Culver’s threats were said to demonstrate was simply her belief in the company’s claims and a desire for some negotiated settlement.

Consideration

73. So far as the conduct of those standing behind Newheadspace are concerned, the case does bear strong similarities to Williams v Spautz where a university lecturer laid criminal charges against university staff to encourage the university to settle his claim for wrongful dismissal on favourable terms. Mason CJ, Dawson, Toohey and McHugh JJ considered that Evershed MR correctly stated the principle in Re Majory at 623-4:

…court proceedings may not be used or threatened for the purpose of obtaining for the person so using or threatening them some collateral advantage to himself, and not for the purpose for which such proceedings are properly designed and exist; and a party so using or threatening proceedings will be liable to be held guilty of abusing the process of the court and therefore disqualified from invoking the powers of the court by proceedings he has abused.

Their Honours in Williams v Spautz held that the criterion for abuse of process is whether the improper purpose sought to be effected by the litigant in bringing the proceedings was their predominant purpose: at 529. Further, inquiry into the motivation of the litigant was considered to provide a fragile foundation on which to stay proceedings for an abuse of power; basing an exercise of the Court’s discretion in such cases on the use or threatened use of proceedings for an improper purpose was likely to lead to a conclusion “more likely to be founded upon objective evidence rather than subjective evidence of intention”: at 529. Mason CJ, Dawson, Toohey and McHugh JJ also noted that the Court’s power to stay proceedings to prevent an abuse of process is available “even if the moving party has a prima facie case or must be assumed to have a prima facie case”: at 522.

74. An early example of an abuse of process in the context of bankruptcy is Ex parte Griffin, In Re Adams, where a creditor presented a bankruptcy petition for a collateral purpose and with the view to putting pressure on the debtor to persuade him to give up a just debt which was due to him and to save a solicitor “from a most proper and just application to strike him off the roll”: at 483 (per Brett LJ). The Court of Appeal refused the petition even though there was a good petitioning creditor’s debt and an act of bankruptcy had been committed. Similarly, it has been held to be an abuse of process to petition for one’s own bankruptcy where the debtor had funds to pay a judgment debt but wished to avoid doing so (In Re A Debtor [1967] Ch 590) or to frustrate a former spouse from recovering money ordered in a family law property settlement (Re Moncada (per Jackson J)); see likewise Clyne v Deputy Commissioner of Taxation at 598 (per Gibbs CJ, Murphy, Brennan and Dawson JJ). Similar examples in the context of the external administration of corporations are helpfully collated in the NRL’s submissions.

75. As to what is meant by “improper purpose”, Aickin J noted in R v Toohey; ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170 at 233:

I use the term “improper purpose” to mean one for which the relevant power or authority was not conferred. It makes no difference whether or not that purpose was known to, or believed or suspected to be necessary by, the person exercising the power. ... A belief that the act done is being done for an authorised purpose will be irrelevant if the purpose for which the power is in fact exercised is not such a purpose, whether the belief is as to a matter of fact or law.

This statement was followed by Basten JA in Meteyard v Love (2006) 56 ACSR 487; [2005] NSWCA 444 when considering whether an examination summons was issued for an improper purpose: at [46].

76. As far as my research has revealed, the purposes for which the power to voluntarily wind up a company are conferred are the same as for a court-ordered liquidation. Whilst a voluntary winding up may provide greater flexibility to the liquidator than a court-appointed liquidator (Re Akai Australia Pty Ltd (1978) 3 ACLR 353 at 356-7, per Powell J), the powers and duties of the liquidator are very similar (Re Mecirt Holdings Pty Ltd (1998) 16 ACLC 1148 at 1151 per Sanderson M) and the objects are the same: to realise the company’s assets, to investigate and determine the claims against the company and to apply the assets to the satisfaction of those claims in accordance with the statutory scheme of priority, distribute any surplus to members and dissolve the company (Australian Securities and Investments Commission v Edge (2007) 211 FLR 137; [2007] VSC 170 at [40]-[41] per Dodds-Streeton J).

77. As to whether there was an abuse of process in appointing a liquidator here, the early history of Newheadspace’s dealings with the NRL is uncontroversial and described in like terms by Mr Needham and Mr O’Reilly: Newheadspace provided the program to some NRL players and clubs from 2011 to 2014 but, despite Ms Culver’s efforts to persuade the NRL to continue to provide the program, her proposal was not accepted and Newheadspace ceased to trade. Whether Newheadspace is entitled to look to the NRL to pay its outstanding invoices of some $7,500 is not difficult to divine from the contemporaneous documents.

78. There is no doubt that Ms Culver had been making an allegation for some time – since October 2015 – that the intellectual property rights of Newheadspace were breached by the NRL and/or Max Coaching. Support for this suggestion was forthcoming from representatives of the Rugby League Players Association including Mr Crocker who, as is apparent from Ms Culver’s statement and the contemporaneous records, was a supporter of Ms Culver in this regard. It is also clear that the NRL had been seeking information from Ms Culver – since November 2015 – as to the basis of this allegation and, apart from lengthy letters crafted with the assistance of quasi-legal advisers – the first such letter being sent more than 20 months after NRL’s request for specifics – Ms Culver did not provide any documents to support the allegation. That does not mean that Newheadspace may not have a claim for breach of intellectual property rights by the NRL, but asserting a substantial claim said to be worth millions of dollars in damages but withholding any supporting documents is an unusual negotiating strategy, to say the least.

79. Rather, the strategy pursued by Newheadspace was to write letters aptly described as “fairly threatening and a little bit scary!” where the threat was negative media attention causing damage to the NRL’s reputation. The strategy is apparent from the immediate retention by the litigation funder of a media adviser, communications between Ms Culver and her advisers and the terms of the letters sent to the NRL already described. After two such letters and a meeting with the NRL, the funder contacted Mr Needham. The only topic of Ms Culver’s meetings with the liquidator for which she provided notes to Mr Whelan were the options for public examinations. The Action Plan circulated by Ms Culver in February 2018 was solely directed towards public examinations of NRL officers.

80. In April 2018, Ms Culver and Mr Whelan created invoices which did not have a proper basis and drafted a board paper which suggested that a liquidator needed to be appointed given the insolvency expected to arise by reason of these invoices. Ms Culver signed a declaration in the RATA confirming that the funder and herself were unsecured creditors of Newheadspace in amounts recorded in those invoices. As an ordinary litigant wishing to sue the NRL, Newheadspace would not have been entitled to examine NRL officers before the commencement of any legal proceedings, nor was Mr Whelan prepared to fund such proceedings himself. Contriving an apparent insolvency by the creation of invoices, drafting a board paper with the assistance of a funder to feign concern about the company’s inability to pay these invoices, and appointing a voluntary liquidator was done to access a liquidator’s ability to request that examination summons be issued by the Court.

81. The predominant purpose of Ms Culver in placing her company into voluntary liquidation was so that the liquidator could request the Court to issue examination summons to senior officers of the NRL as a means of persuading the NRL to pay a substantial sum in order to avoid adverse media or public attention. The fact that an examination summons was sought against the former and current Chief Executive Officers of the NRL, in circumstances where there was little basis to suggest that either had any substantive involvement with the program, is consistent with such a purpose.

82. The power to appoint a liquidator is not conferred to use the threat of public examinations as a way to persuade someone to pay you money. Nor it is a proper purpose for a company to be placed into external administration so that the company or a litigation funder can avail itself of the forensic advantage conferred by public examinations which are not available to a company wishing to sue in the ordinary manner. It has been consistently held that it is an abuse of process to use examinations solely for the purpose of obtaining a forensic advantage not available from ordinary pre-trial procedures: Hong Kong Bank of Australia Limited v Murphy (1992) 8 ACSR 736; (1992) 28 NSWLR 512 at 519 per Gleeson CJ; Sandhurst Trustees Limited v Harvey (2004) 49 ACSR 422; [2004] SASC 157 at [51] (per Doyle CJ with whom Perry and Bleby JJ agreed); Re Excel Finance Corporation Limited (receiver and manager appointed); Worthley v England (1994) 52 FCR 69 at 90 per Gummow, Hill and Cooper JJ; Re New Tel (in liq); Evans v Wainter Pty Ltd (2005) 145 FCR 176; [2005] FCAFC 114 at [252] per Lander J with whom Ryan and Crennan JJ agreed. In the same way, it is an abuse of process to appoint a liquidator solely for the purpose of utilising his or her standing to seek such coercive orders.

83. Thus, the appointment of a liquidator was an abuse of process. The liquidator does not strongly contend otherwise. It follows from Williams v Spautz that Ms Culver may be disqualified from invoking the powers inherent in the process which she has abused being, in this case, the statutory process of voluntarily winding up her company. But how can this remedy be effected in such a context? The Court could terminate the winding up, but as considered at [161] to [162], I am not prepared to do so on this application. But even if I was inclined to terminate the winding up, should the Court do so in circumstances where, ordinarily, one would expect that the liquidator now appointed would bring an independent mind to bear on the company’s affairs with the result that Ms Culver’s abuse of process is redundant. This brings us to the question whether an abuse of process in appointing a voluntary liquidator means, without more, that the examination summonses must be set aside.

ABUSE OF PROCESS by liquidator

84. The NRL made no submission in respect of the liquidator’s purpose but simply contended that, as the winding up was an abuse of process, then the examinations summons should be set aside. NRL submitted that the examination summonses are oppressive and unfair because the summonses were issued in the context of a winding up which is an abuse of process. To permit the examinations to go ahead would give effect to Ms Culver’s threats of media attention; the examinees would be subjected to cross-examination on matters of which they have little knowledge; and the examinations would perpetuate and compound the abuse of the winding up process and in effect be seen as the Court giving its imprimatur to an abuse of process.

85. The liquidator disagreed, submitting that the impugned purpose must be that of the liquidator not the creditor (or funder) who may have financed the exercise in pursuit of their own interests or even a director who seeks vindication for a wrong which he or she believes has brought about the company's demise: AccordPacific Holdings Pty Limited v Accord Pacific Land Pty Ltd [2011] NSWSC 707 at [116] (per Ward J). That an examination might ultimately produce benefits for contributories (in this case, Ms Culver) does not make it an abuse: Ji Woo International Education Centre Pty Ltd (2019) 134 ACSR 448; [2019] NSWSC 93 at [31] (per Black J). A common purpose for the conduct of a public examination is to investigate and assess a potential claim which the company may have against directors, or others: Bosun Pty Limited (in liq) (2000) 34 ACSR 597; [2000] SASC 180 at [8] (per Debelle J). It is legitimate for a liquidator to obtain information which might assist in the conduct of litigation: Hong Kong Bank of Australia Limited v Murphy at 518-9 (per Gleeson CJ with Mahoney and Priestley JJA agreeing); Wily re LED at [37]-[38] (per Barrett J); Re Southern Equities Corporation Ltd (in liq); Bond and anor v England (1997) 15 ACLC 1582; (1997) 25 ACSR 394 at 431-433 (per Lander J with Cox and Bleby JJ agreeing).

120. It is also apparent that the documents which Mr Needham had in respect of the NRL claim were a sub-set of the documents in the possession of Ms Culver and her advisers. The documents in the chronological bundle are more comprehensive than those attached to Mr Needham’s affidavits (including Ms Culver’s statement and its annexures) or sent to him by Ms Culver. This is consistent with Mr Needham leaving the task of reviewing the documents and preparing the application for examination summons to those who had been undertaking such preparations before his appointment, being Ms Culver, her advisers and counsel who, according the Action Plan, had been engaged some months before his appointment. This is confirmed by Mr Needham’s evidence that he relied on his legal advisers in respect of the content of documents seeking the examination summonses filed with the Court, including his affidavit in support of the issue of the summonses.

121. I accept Mr Needham’s evidence that, at the time of his appointment, he had not made any decision as to whether the claim against the NRL had any merit. Nor did he depose in his affidavit submitted to the Registrar that he required further information to decide whether or not to commence proceedings. Nor do I think that the evidence supports a conclusion that Mr Needham was seeking to conduct examinations to assist legitimate endeavours to obtain litigation funding. There was no litigation funding agreement. Mr Whelan, after many months of working with Ms Culver, was only prepared to pay the filing fees for the examination summons consistent with his strategy of presenting the portent of examinations to the NRL to encourage a payment of the company’s claim. There is no suggestion that there were draft pleadings or written opinions of counsel, nor efforts to submit the claim to other funders who might be prepared to commit to fund the claim. There was no ‘objectively valid basis’ for the need to conduct the examinations for this purpose, which is consistent with the fact that Mr Needham did not refer to a litigation funder in his affidavit submitted to the Registrar.

122. Mr Needham also deposed, and was not cross-examined, that at the time of his appointment he had not made any decision as to whether he would proceed with the examinations. His affidavit, sworn more than a year after his appointment, does not align with the contemporaneous documents and events described at [38]-[44]. I do not mean to suggest that Mr Needham’s affidavit evidence was anything other than honestly given, but, with the passage of time, his evidence appears to me to be inaccurate. True it is that, on 27 November 2017, Mr Needham’s file note records that he said that he would make up his own mind about the claim against the NRL if and when he was appointed. But by the time Mr Needham met Ms Culver again some five months later in April 2018, Ms Culver, the funder and counsel were proceeding on the basis of the Action Plan which was directed to the conduct of public examinations. It is likely that Mr Needham had a copy of the Action Plan: see [44]. By the time Mr Needham was appointed, the pursuit of public examinations in accordance with the Action Plan appears to have been a fait accompli. Indeed, strictly speaking, Mr Needham’s affidavit is correct: when appointed he had not made any decision as to whether he would proceed with the examinations; he had left those decisions to others.

123. In summary, Mr Needham does not appear to me to have turned his own mind to whether the elements of section 596B of the Corporations Act were satisfied or whether the summonses were issued for a proper purpose. Rather, Mr Needham has left it to those interested in conducting public examinations, being Ms Culver, the funder and legal representatives engaged before his appointment. He has not put his ‘stamp’ on this process but has effectively inherited the improper purpose of those who placed Newheadspace into liquidation, which has remained the predominant purpose of the processes which have continued under his name.

124. As already mentioned, the NRL chose not to cross-examine Mr Needham on his affidavits and thus it was not put to him by the NRL’s senior counsel that his predominant purpose in seeking the issue of examination summonses was an improper purpose. No doubt, this was because the NRL’s ‘case theory’ was that an abuse of process arose by reason of Ms Culver’s predominant purpose and it followed without more that the examination summonses should be set aside. In light of the authorities canvassed at [110] to [113], that approach was, with respect, incorrect. That said, the affidavits of Mr O’Reilly squarely put the NRL’s position that Newheadspace had been placed in voluntary liquidation for the primary purpose of seeking the issue of orders for production and summonses to Mr Greenberg and Mr Heptonstall following a series of threats made by Ms Culver to the NRL. Correspondence was exchanged between the NRL’s solicitors and the liquidator’s solicitors setting out the NRL’s allegations at length and more broadly than finally put by NRL’s senior counsel at the hearing. Mr Needham replied in two affidavits to these allegations.

125. Where witnesses have responded to allegations in affidavits, it is not always necessary to put the same allegation to a witness in cross-examination to accord with the principles in Browne v Dunn (1893) 6 R 67; NU v NSW Secretary of Family and Community Services at [58] per Beazley P with whom McColl JA and Schmidt J agreed; followed in Cellarit Pty Ltd v Cawarrah Holdings Pty Ltd [2018] NSWCA 213 at [288] per McColl AP with whom Macfarlan and Leeming JJA agreed.

126. Where a party seeks to impugn a witness’ credibility, counsel is still required to put to a witness the matters which they intend to submit are of significance so that the Court can assess the witness in relation to those matters: Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 at [13] per Redlich JA and Beach AJA; followed in SAMM Property Holdings Pty Ltd v Shaye Properties Pty Ltd (2017) 345 ALR 633; [2017] NSWCA 132 at [137] per McColl JA with whom Gleeson JA and Sackville AJA agreed, her Honour also citing Rees v Bailey Aluminium Products Pty Ltd (2008) VR 478; [2009] VSCA 96 at [21] and Terrence Parsons (a pseudonym) v R [2016] VSCA 17 at [42] per Maxwell P, Redlich and Priest JJA. There was no suggestion by the NRL, nor need there be to establish an abuse of process, that Mr Needham’s credibility was or is in doubt. Thus, the fact that Mr Needham was not cross-examined does not preclude me from making the findings I have made.

127. Further, as already noted, a conclusion that there has been an abuse of process should be based upon objective evidence rather than a litigant’s subjective motivation: Williams v Spautz at 529. Nor does whether a purpose is “improper” depend upon the belief of the person as to whether they invoked a power for a purpose foreign to the purposes for which it was conferred: Toohey; Ex parte Northern Land Council at 233.

128. For the reasons given, I would exercise my discretion to refuse the application to issue examinations summons to Mr Greenberg and Mr Heptonstall. If I am wrong about this, then there does not appear to be any real controversy about Mr Greenberg’s role. He first appeared in this story after Newheadspace had ceased to provide the program to the NRL and had already made an allegation of breach of intellectual property rights. Ms Culver prevailed upon Mr Greenberg in late 2015 to put in a good word for the program to the NRL and, in mid-2016, to again consider her proposal to provide the program and to attend to unpaid invoices. His role was peripheral at best. While the liquidator presses to test these matters by publicly examining Mr Greenberg, I am not satisfied that a summons should be issued to Mr Greenberg having regard to the four considerations set out by Basten JA in Meteyard v Love: see [93]. The evidence has not enabled me to form a reasonable state of satisfaction that he may have relevant information. Nor am I satisfied that the proposed examination is sufficiently justified or would have any practical utility: Kimberley Diamonds at [24]. I am not satisfied that the nature of his position is such that Mr Greenberg is likely to have information as to the matters the subject of the examinations: Affinity Capital at [100]. For that reason alone, in exercising my discretion on this review I would set aside the examination summons addressed to Mr Greenberg.

Dress rehearsal for cross-examination

131. It is not strictly necessary to consider the other bases on which the NRL says the examination summonses should be set aside. Given the detailed submissions made by senior counsel on both sides to these issues, however, I will deal with these grounds briefly.

132. Further and alternatively, the NRL submitted that the predominant purpose of the liquidator in respect of the proposed examinations was to conduct a dress rehearsal of the examinees which is impermissible and, itself, constitutes an abuse or alternatively, oppression and unfairness and the examination summonses should be set aside under rule 49.19 of the UCPR. Orders for the issue of summonses for examination will be set aside if they are oppressive, unfair or an abuse of process: Sent v Andrews at [11]; followed by Barrett J in Onefone Australia Pty Ltd v Onetel Ltd [2007] NSWSC 69; (2007) 61 ACSR 246 and Ward J in Re Kassem (as liquidators of Clarecastle Pty Ltd) [2011] NSWSC 490 at [37] and [54]. See likewise Re Hugh J Roberts Pty Ltd (in liq) at 540-1 per Street J, Needham J in Re Kimberley Carpet Mills (Aust) Pty Ltd (In Liq.) (1979) CLC 40–532; (1979) 4 ACLR 50; Re Norman Baker Pty Ltd (in liq); Ex parte Hillman [1982] WAR 349; (1981) 6 ACLR 257; (1982) 1 ACLC 79; Grosvenor Hill (Qld) Pty Ltd v Barber (1994) 48 FCR 301; (1994) 120 ALR 262.

133. The bulk of the alleged claims of Newheadspace against the NRL are based upon alleged oral representations and the liquidator already has the benefit of a detailed sworn statement from Ms Culver in support of those allegations. In those circumstances, any examination of Messrs Greenberg or Heptonstall would not assist the liquidator in forming an assessment of the case but rather could only be used as a dress rehearsal for cross-examination. Any information that the liquidator may require can be readily obtained by means of the order for production. The NRL submitted that the comments made by Buchanan JA in Sent v Andrews at [26] applied mutatis mutandis. The evidence of Ms Culver lies at the heart of the proceedings – either there was an oral contract or oral representations made or there were not. Examination of Messrs Greenberg or Heptonstall would not advance the liquidator’s knowledge of that claim other than revealing whether Messrs Greenberg or Heptonstall are convincing in their evidence and whether there are any matters which will be relied upon by the NRL in the proceeding which the company may wish to counter. The affidavit sworn in support of the application of the examination orders did not disclose that the liquidator cannot obtain sufficient information as to any of the issues in the proceeding from the sources already available to him. The liquidator has access to all the information that the company could have obtained.

134. The liquidator submitted that the examinations cannot be said to be a dress rehearsal for cross-examination in light of the completed examinations, the absence of any concurrent litigation or any evidence that the liquidator has made any decision that litigation will be commenced at all.

Consideration

135. The principles are set out in Sent v Andrews by Buchanan JA (with whom Vincent JA agreed) at [11]: (citations omitted)

Orders for the issue of summonses for examinations will be set aside if they are oppressive, unfair or an abuse of the process of the court. Where an examination relates to proposed or current litigation, in general terms the question is "whether the examination is genuinely for the information of the liquidator to aid him in considering whether there is a cause of action upon which he will proceed; and the court will be alive to the possibility of oppression where the application is merely to advance the action, whether actual or proposed." The strength or weakness of the claim of a company in liquidation against a third party concerns the examinable affairs of the company. Gathering information may involve testing and assessing the credibility of the witnesses who provide the information. The liquidator is not entitled, however, to conduct a dress rehearsal of the cross-examination in an action or to seek to damage the opposing party's case by attacking the credibility of that party's witnesses.

136. In that case, unlike the ordinary position where the liquidator comes to the company with limited or no knowledge of the company, the liquidator had a wealth of information as to the company’s case in litigation on foot against the proposed examinees. Those proceedings turned upon whether the Court accepted the oral evidence of one side’s witnesses or the other. The company directors had sworn affidavits in support of the company’s claim setting out their version of events, and the liquidator’s solicitors had conducted interviews with the company’s directors to obtain outlines of their evidence. Per Buchanan JA at [24]:

Accordingly, the respondent needs no further information to mount the company's case, and the battle lines between the parties have been clearly drawn. While the issue is the respondent's purpose and not the result which will ensue from the examination, the result may found an inference as to the respondent's purpose. I would infer from the known facts that the principal benefit, which the respondent intends to gain from the examinations, is to conduct a rehearsal of the cross-examination of the appellants so as to be in a better position to meet Primelife's case. …

The inference draw by Buchanan JA from the known facts was that the liquidator’s predominant purpose was to conduct a dress rehearsal of the cross-examination of the examinees in the proceedings already on foot: at [26]. See likewise White J in Godfrey as liquidator of Pobjie Agencies at [70]; Wily re LED per Barrett J at [42]. More recent examples include Park (liquidator) In the matter of Queensland Nickel Pty Limited (in liq) (2019) 369 ALR 284; [2019] FCA 340 at [45] per Greenwood J and Thomas, In the matter of La La Land Byron Bay Pty Ltd (in liq) (No 2) [2019] FCA 1559 at Reeves J at [19].

137. If I am wrong about the liquidator’s abuse of process and what I have said at [135] then, given that the company has not commenced proceedings against the NRL and it is clear that Mr Needham has not made a decision whether to bring such proceedings, I do not think it can be said that the proposed examinations are a dress rehearsal of cross-examination in future litigation. Any claim by the company against the NRL is unformulated and may never materialise. There are no proceedings on foot, no joinder of issues by pleadings nor any exchange of affidavits in preparation for a hearing.  Nor does Newheadspace’s suggested claim against the NRL turn largely on oral representations.  Whilst the correspondence did refer to oral representations, the claim for loss of intellectual property would likely turn on other matters. 

Lack of disclosure to registrar

138. Further and alternatively, the NRL submitted that Mr Needham failed to disclose material matters when the application for the issue of the summonses was before the Registrar, which requires the examination summonses to be set aside. The liquidator had an obligation to make full and frank disclosure to the registrar of all matters that may impact on the decision to issue the examination summons including that which might lead the court to refuse the application, and in the absence of full disclosure the Court may set the summons aside: Re Southern Equities Corporation Ltd per Lander J (with whom Cox and Bleby JJ agreed) at 422-423; Sutherland v Pascoe; in the matter of Matrix Group Ltd as Trustee for the Matrix Group Unit Trust (in liq) ACN 061 549 371 (2013) 297 ALR 44; [2013] FCAFC 15 at [50]; In the matter of Idoport Pty Ltd (in liq) (recs apptd) (2011) 82 ACSR 164; [2011] NSWSC 322 at [147]; Trevor, in the matter of Bell Group NV (in liq) (No 2) (2017) 122 ACSR 418; [2017] FCA 927 per Jagot J at [22]; Re Owston Nominees No 2 Pty Ltd (in liq) (Receivers and Managers Appointed) (2013) 94 ACSR 500; [2013] NSWSC 538 at [51]-[52].

139. The material matters omitted were said to be: Ms Culver’s various threats made to the NRL; the circumstances surrounding the company’s asserted insolvency; the involvement or lack thereof of Mr Greenberg in the ongoing negotiations; the ‘legal’ advice obtained by the company and the fact that Ms Culver and the liquidator met with the litigation funder at least three times before the appointment of the liquidator; contrary to the suggestion in Ms Culver’s statement that she had no more contact with the NRL after negotiations had broken down in July 2016, Ms Culver had had multiple communications with the NRL since and also met with the NRL; the NRL had asked multiple times for clarification and particulars of the claims alleged against it and Ms Culver declined to provide this material in any meaningful way. These matters were significant and should have been disclosed. As Justice Allsop J (as he then was) said in Walter Rau Neusser Oel Und Fett AG v Cross Pacific Trading Ltd [2005] FCA 955, it was not for the Registrar to “search out, organise and bring together what can be said on the respondents’ behalf. That is the responsibility of the applicant, through its representatives”: at [38].

140. The liquidator submitted that it is not incumbent on the liquidator to include in the affidavit every possible thing which might be said about the dealings between the company and the examinees or companies and entities associated with them or every possible issue that might be raised during the examination hearings: Godfrey as liquidator of Pobjie Agencies at [81] (per White J). The liquidator denied that there was any failure to disclose the extent of the liquidator's dealings with Ms Culver and a potential litigation funder prior to his appointment. Ms Culver's threats could not materially affect the decision of the Registrar to grant the examination orders. All that needed to be disclosed was that the company’s claims against the NRL, whatever their substance, had not been settled. The fact that the NRL had denied the claims was not a material fact that ought be disclosed, nor the particulars of convoluted letters between Ms Culver and the NRL's solicitor. The solvency or otherwise of the company was said to be an irrelevant consideration on the issue of the examinations summonses.

141. The fact of Mr Greenberg's involvement in the negotiations was said to be the relevant consideration as it led to a credible conclusion that he has information relevant to the claims, being the examinable affair. It was not material that Mr Greenberg might have (a matter not known by the liquidator) ceased to have any involvement in the matter. It was his involvement (said to be demonstrated by the evidence) that was the matter conclusive of the basis for issuing the summonses. The NRL's requests for information from Ms Culver were also said to be irrelevant to the issue of the summonses. The NRL's attitude to providing documents voluntarily was not something the liquidator was required to disclose even if he knew that position: Hong Kong Bank of Australia Limited v Murphy at 520.

142. Alternatively, the liquidator submitted that it is a matter for the discretion of the Court as to whether the summons ought be set aside: Southern Equities Corporations Ltd at 422; Re Owston Nominees No 2 at [51] per White J. The matters which the NRL says should have been brought to the Registrar's attention are now before the Court and, it was submitted, did not establish that the conduct of the examinations is an abuse. As such, setting aside the summonses would serve no useful purpose as immediate application may be made by the liquidator for new orders to the same effect: Re Owston Nominees at [54]; Re MendarmaPty Limited (in liq) (2006) 24 ACLC 1611; [2006] NSWSC 1306 at [49]; Southern Equities Corporations Ltd at 424.

Consideration

143. The principles in respect of disclosure are stated in Re Southern Equities Corporation Ltd by Lander J at 422-423:

An application for an examination summons is made ex parte. Consequently there is a heavy obligation upon the person applying for the examination summons to make full and frank disclosure of all matters which may impact upon the decision to summon a person for examination about a corporations examinable affairs.

There can be no doubt, in my opinion, that a person who makes an application of this kind is under an obligation to bring all facts and material to the court's attention which might bear upon the order to be made. The applicant has no lesser obligation than that imposed upon a party seeking an injunction ex parte. Indeed, in my opinion, the obligation for frankness and candour is even greater in an application of this kind. That is because, unlike on the return of an interlocutory injunction obtained ex parte, on the return of an examination summons the material supporting the application is not ordinarily made available to the proposed examinee. …

The obligation is to provide to the court all material which might impact upon the order sought, including all material which might lead the court to refuse the application. The applicant must act in the place of the proposed examinee and therefore draw to the attention of the court anything which might lead the court to refuse the application.

Failure to disclose material facts does not necessarily mean that the examination summons should be set aside. Much turns upon the facts not disclosed and the circumstances in which non-disclosure occurred; an error of judgment or an innocent non-disclosure may not necessarily require the summons to be set aside. Nor is setting aside the summons a bar to an application for a further order: at 424. The statements of Lander J were approved by the Full Court of the Federal Court in Sutherland v Pascoe; Re Matrix Group Limited at [50].

144. In Affinity Capital, Ward J emphasised that, whilst the non-disclosure must be material, “it does not follow that this should be tested by asking whether the disclosure of the information would have made a difference to the Registrar’s decision”: at [79] citing Re Mendarma at [58] per White J.

145. For example, in Re Owston Nominees No 2, Black J set aside a summons for examination as the liquidator did not disclose that his solicitor and counsel were also acting for a director of the company in family law proceedings. An examinee was a secured creditor of the company whose receiver and manager was appearing in the Family Court proceedings and contending for a different outcome than the director. The affidavit did not disclose the issues in the Family Court proceedings, the overlap between those proceedings and the issues sought to be investigated in the examinations, nor that the documents sought in orders for production were relevant to the Family Court proceedings, nor that the director may have a forensic advantage in the Family Court proceedings by reason of the examination summons and orders for production. Nor was it sufficient to attach correspondence which referred to the Family Court proceedings as reference to the proceedings in an annexure to the affidavit did not sufficiently draw the Registrar’s attention to the relevant issues; the matters relevant to the Registrar’s decision should have been expressly addressed in the affidavit: at [47].

146. In Godfrey as liquidator of Pobjie Agencies, White J rejected the submission that the liquidator failed to disclose relevant matters to the Registrar by failing to disclose that the allegations against the examinee were fanciful and a wide range of other matters, noting that if each of these matters had been addressed then the liquidator’s affidavit would have run into hundreds of pages and anticipated the arguments advanced by the applicants on the application to set aside the examination summonses: at [81]. However, his Honour accepted one material non-disclosure: the affidavit did not disclose what information the examinees had already voluntarily provided to the liquidator and it was conceivable that such information may have been material to the Registrar’s decision to issue the summonses: at [82].

147. Finally, in Pockett v Dean-Willcocks, the company had been in negotiation with Woolworths for some time in relation to providing a product. The negotiations ended and the company was placed into voluntary administration. The administrators applied to issue examination summonses, including to Woolworths, and an application to set aside the summonses was based inter alia on the submission that the material put to the Registrar did not show what information the administrators lacked, particularly where they had written records concerning alleged representations, the co-operation of directors, and in general terms all the information that the company would have had if it was not in administration. Hodgson JA (with whom Tobias and Bryson JJA agreed) did not agree. The affidavit relied on before the Registrar sufficiently showed that the administrators considered that information was lacking as to a number of relevant matters, including the reasons why Woolworths withdrew from the negotiations, the extent to which Woolworths disputed the making of representations, and the potential quantum of damages: at [30].

148. If I am wrong about the liquidator’s abuse of process then it is fair to say that Mr Needham’s affidavit in support of the application for the issue of examination summonses was brief and, in light of the evidence before the Court, inaccurate in places. However, many of the matters which the NRL says that Mr Needham should have disclosed to the Registrar do not appear to me to have been known to him at the time he swore the affidavit as the documents in his possession appear to have been a sub-set of the documents held by Ms Culver, although nor did he call for the books and records from Ms Culver, usually a first step in any liquidation.

149. I can only safely conclude that Mr Needham had the documents referred to at [50], [54] and [55]. Assuming this to be the position, Mr Needham deposed that he wished to investigate whether a contract was entered into between Newheadspace and whether the NRL had breached the contract. Mr Needham had Ms Culver’s November 2017 letter to the NRL in which she effectively conceded that there was no contract. I consider that the Registrar would have been interested to know that the director of Newheadspace largely accepted that there was no contract. This may have indicated to the Registrar that it was not necessary to investigate that matter by issuing the examination summonses sought.

150. Mr Needham also deposed that he wished to investigate whether the NRL had retained and made use of Newheadspace’s intellectual property. I consider that the Registrar may have been interested to know that such an allegation had been made by Newheadspace three years earlier and – also for three years – the NRL had been asking Newheadspace to provide a single piece of paper to corroborate that allegation and Newheadspace had steadfastly refused to provide any. This piece of information may have indicated to the Registrar that invoking the coercive powers of the Court to bring the NRL’s officers to be examined on that subject should not, in their discretion, be ordered in circumstances where the primary source of that information – the company and director – had failed to provide such information to the NRL over a prolonged period of time and that source should be exhausted by the liquidator before troubling the NRL.

151. I do not think that Mr Needham’s description of Mr Greenberg’s role was accurate in circumstances where Mr Needham had Mr Greenberg’s emails from July 2016 which, fairly read, indicated that Mr Greenberg’s role was peripheral at best. I consider that the Registrar would have been interested to know this fact when deciding whether to compel Mr Greenberg to attend court to be examined. Whilst the July 2016 email was attached to Ms Culver’s statement which was exhibited to Mr Needham’s affidavit, it should have been expressly addressed in his affidavit.

152. Nor did Mr Needham disclose that Ms Culver had been co-operating with him for months and had been doing most of the ‘leg work’ in respect of the suggested claim against the NRL. I consider it would have been relevant to the Registrar to know that, not only had Ms Culver given a statement to the liquidator, but Ms Culver stood ready to assist the liquidator wherever possible. This may have suggested to the Registrar that it was not necessary to issue an examination summons to Ms Culver and use court time to conduct such an examination.

153. Nor did Mr Needham disclose that Newheadspace had been threatening the NRL with adverse public attention including foreshadowing the appointment of a liquidator who may conduct public examinations. Mr Needham had this correspondence but it was not annexed to his affidavit nor Ms Culver’s statement. Nor did Mr Needham disclose that the primary focus of appointing him was to conduct just such examinations. Whilst Mr Needham was largely not privy to the email traffic between Ms Culver, Mr Whelan, Mr Westfield and Mr Stevens referred to in this judgment, I consider it was reasonably apparent to him – from the initial approach by a funder, the pre-appointment meetings thereafter and the Action Plan – what he was being asked to do. I consider that a Registrar of this Court would have been most interested in such information as it may have suggested that the processes of the Court would be abused if the summons were issued as requested.

154. As to why such matters were not disclosed, it seems to me that it was because Mr Needham left the preparation of his affidavit to others and did not actively review the documents or the suggested claim against the NRL himself. That is not a reason, it seems to me, to refrain from setting aside the examination summonses. Accordingly, I would also set aside the examinations on this basis.

Should the liquidation be terminated?

155. By prayer 9 of the Interlocutory Process, innocuously seeking “[a]ny further or other order that the Court sees fit”, the NRL seeks that the Court, of its own motion, terminate the liquidation of Newheadspace under section 90-15 of the Insolvency Practice Schedule (Corporations). It was submitted that, in Re Hugh J Roberts Pty Ltd (in liq), Street J opined in respect of an examination summons that the court will find no difficulty in moulding an order appropriate to prevent an abuse of its process. Following the introduction of the Insolvency Practice Schedule, section 90-15 allows the Court to terminate a voluntary winding up: Re Manband Pty Ltd (in liq) (Subject to Deed of Company Arrangement [2018] NSWSC 1282 at [19] (Black J), citing Krejci (liquidator), in the matter of Community Work Pty Ltd (in liq) [2018] FCA 425 (Gleeson J). Whilst the NRL accepts that it does not have standing under the Insolvency Practice Schedule to seek the termination of the winding up, it invited the Court to do so on its own initiative by making an order under section 90-15(1).

156. The liquidator submitted that the company is insolvent and, thus, ought be in liquidation. Even if not insolvent, the company had been dormant for a number of years prior to the winding up and had ceased to carry on any business beyond the pursuit of a potential claim against the NRL. Such a company ought be wound up and deregistered once its assets have been realised, debts paid and any surplus distributed to members.

157. Whilst the Court has power to terminate a voluntary winding up under section 90-15 of the Insolvency Practice Schedule, I am not minded to terminate the liquidation on the Court’s own initiative. The Interlocutory Process did not, by prayer 9, give adequate notice that such an order would be sought. Ms Culver has not been joined to these proceedings and is an interested person in any such application as she initiated the appointment of a liquidator, is the sole shareholder of Newheadspace and would, on termination of the winding up, become its sole director again. ASIC should also have been notified that an order was being sought under section 90-15.

158. Further, ordinarily on applications to terminate a winding up the Court will have regard to inter alia matters of ‘commercial morality’: see In the matter of Parkway One Pty Limited (in liquidation) [2019] NSWSC 1495 at [78] and [85]. I am concerned that Ms Culver has rendered an invoice to her company without a proper basis and obtained a second invoice from a litigation funder suffering from the same defect. On the basis of these invoices, Ms Culver has resolved to appoint a liquidator to her company on the basis that it is unable to pay these invoices. This, together with signing a declaration that the information in the RATA as to unsecured creditors was true and correct, gives pause for thought as to whether Mr Needham should cease to wind up the company and Ms Culver should return to its helm. I would not be minded in these proceedings to terminate the liquidation for this reason alone. Of course, on an application to terminate the liquidation configured in a more traditional format, I would expect to hear from Ms Culver as to each of these matters and, it goes without saying, that I have not had the benefit of any evidence from Ms Culver on this application.

159. I am, however, concerned about leaving Mr Needham as the liquidator of Newheadspace given the findings I have made. I wish to hear from Mr Needham as to whether he wishes to continue to be the liquidator and, if so, why he should not be removed under sections 90-15(3)(b) and (c) of the Insolvency Practice Schedule.

ORDERS

160. For these reasons I make the following orders:

1. The summonses for examination made by the Registrar on 3 October 2018 directed towards Todd Greenberg and Paul Heptonstall be set aside as an abuse of process.

2. The Respondent to pay the Applicant’s costs of prayer 4 of the Interlocutory Process filed on 28 November 2018.

3. Direct the Respondent to notify the chambers of Rees J within 14 days whether he wishes to continue as liquidator of Newheadspace Pty Limited (in liq).

4. In the event that the Respondent notifies the Court that he wishes to continue as liquidator of Newheadspace Pty Limited (in liq), direct the Respondent to:

1. within 24 hours of notifying the Court, notify the Australian Securities and Investments Commission that his removal is being considered by the Court and provide a copy of the judgment; and

2. within 28 days, provide to the Court and the Australian Securities and Investments Commission any affidavits or submissions in respect of why he should not be removed as liquidator under sections 90-15(3)(b) and (c) of the Insolvency Practice Schedule.

5. Stand the matter over to 31 March 2020 for further directions and excuse the applicant from further appearances.

6. Liberty to apply on 2 days’ notice.

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Decision last updated: 04 March 2020