Krejci (liquidator) v Panella, in the matter of Richmond Lifts Pty Ltd (in liq)

In the matter of Richmond Lifts Pty Ltd (in liquidation), the liquidator, Krejci, filed a substantive proceeding against various defendants, including individuals and companies, for alleged breaches of directors' duties, participation in those breaches, and receipt of funds due to the Deputy Commissioner of Taxation. The defendants sought to set aside ex parte orders that appointed provisional liquidators to three companies and interim receivers to another company. The defendants argued that the companies were not controlled by their de jure directors, that the companies did not keep proper books and records, and that there was a real risk of dissipation of assets.

The court had to decide whether the plaintiffs established that the Court should exercise its discretion to continue the ex parte orders. The plaintiffs bore the onus to establish that the orders they obtained ex parte should continue. The court took a pragmatic approach to the evidence, given the nature of the application as an urgent duty matter. The court considered the evidence provided by the plaintiffs, including affidavits, transcripts, and an independent solicitor's report. The defendants provided affidavits and objected to some of the evidence provided by the plaintiffs.

The court dismissed the defendants' application to set aside the ex parte orders. The court found that the plaintiffs had established that the orders they obtained ex parte should continue. The court considered the risk of dissipation of assets, the nature of the alleged conduct, and the fact that the companies were not controlled by their de jure directors. The court also considered that the Commonwealth had entered into a funding agreement with the liquidators in relation to the conduct of these proceedings, with the major creditor being the ATO. The court ordered that the costs of the interlocutory application be costs in the substantive proceeding.

The court dismissed the defendants' application to set aside the appointment of the provisional liquidators and the interim receivers. The court referred the relief sought in prayers 5 and 6 of the interlocutory process to set aside or vary the freezing orders for case management before the Docket Judge. The court referred the substantive proceeding, together with another proceeding, to the National Operations Registrar for allocation to a Docket Judge. The court granted leave to apply, exercisable before the Duty Judge, until such time as the parties were notified of the Judge to whom the matter was allocated. The court made orders dismissing the defendants' application to remove the provisional liquidators from CAP Accounting, Marginata, and Reliance and likewise dismissing their application to remove the interim receivers from Accolade.