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Low (Liquidator) v Hughes

Low (Liquidator) v Hughes

Case [2025] FCA 861 28 July 2025

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FEDERAL COURT OF AUSTRALIA
Low (Liquidator) v Hughes [2025] FCA 861

File number: WAD 97 of 2023

Judgment of: VANDONGEN J

Date of judgment: 28 July 2025

Catchwords: CORPORATIONS - application for trial of separate question pursuant to r 30.01 of the Federal Court Rules 2011 (Cth) - whether just and convenient for order to be made - application granted

Legislation:
Corporations Act 2001 (Cth) ss 180, 588G, 588M, 1317H, 1324

Federal Court of Australia Act 1976 (Cth) s 37M

Income Tax Assessment Act 1997 (Cth)

Taxation Administration Act 1953 (Cth) s 255-15, Schedule 1

Federal Court Rules 2011 (Cth) r 30.01

Professional Standards Act 2003 (Vic)

Wrongs Act 1958 (Vic) s 24AI

Civil Liability Act 2002 (WA) s 5AK

Professional Standards Act 1997 (WA)

Cases cited:
AWB Limited v Cole (No 2) [2006] FCA 913; (2006) 253 FCR 288

Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334

Director of Fisheries (Northern Territory) v Arnhem Land Aboriginal Land Trust [2001] FCA 98; (2001) 109 FCR 488

Director of Public Prosecutions (Cth) v JM [2013] HCA 30; (2013) 250 CLR 135

Frigger v Professional Services of Australia Pty Ltd (No 3) [2023] FCA 520

Novartis Crop Protection Australasia Pty Limited v Orica Australia Pty Limited [2001] FCA 1013

QBE Insurance (Australia) Limited v Tropical Reef Shipyard Pty Limited [2009] FCAFC 161

Rainsford v State of Victoria [2005] FCAFC 163; (2005) 144 FCR 279

Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718; (1999) 240 FCR 276

SmithKline Beecham (Australia) Pty Ltd v Chipman [2002] FCA 674

Zurich Australian Insurance Ltd v FKP Commercial Developments Pty Ltd [2023] FCAFC 188

Division: General Division

Registry: Western Australia

National Practice Area: Commercial and Corporations

Sub-area: Corporations and Corporate Insolvency

Number of paragraphs: 47

Date of hearing: 12 May 2025

Counsel for the Plaintiffs: Mr WCJ Zappia with Mr WB MacDonald

Solicitor for the Plaintiffs: Roe Legal Services

Counsel for the First, Second, Third and Fourth Defendants: The first, second, third and fourth defendants did not appear

Counsel for the Fifth and Sixth Defendants: Mr MCJ Hoffman KC with Mr JS Slack-Smith

Solicitor for the Fifth and Sixth Defendants: Hall & Wilcox

ORDERS

WAD 97 of 2023

BETWEEN:
JENNIFER ELIZABETH LOW IN HER CAPACITY AS LIQUIDATOR OF ACN 116 313 921 PTY LTD (IN LIQUIDATION) (FORMERLY TITAN INTERACTIVE PTY LTD) (ACN 116 313 921))

First Plaintiff

ACN 116 313 921 PTY LTD (IN LIQUIDATION) (FORMERLY TITAN INTERACTIVE PTY LTD (ACN 116 313 921))

Second Plaintiff

AND:
BRYAN KEVIN HUGHES

First Defendant

WAYNE HUGHES

Second Defendant

NORMAN ABBY ASCH

Third Defendant

IAN PETER THUBRON
Fourth Defendant

PITCHER PARTNERS (WA) PTY LTD
Fifth Defendant

PITCHER PARTNERS ACCOUNTANTS & ADVISORS WA PTY LTD
Sixth Defendant

ORDER MADE BY:

VANDONGEN J

DATE OF ORDER:

28 JULY 2025

THE COURT ORDERS THAT:
1.Pursuant to r 30.01 of the Federal Court Rules 2011 (Cth), the following question arising in the proceeding is to be heard separately from…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Low (Liquidator) v Hughes

Details

AGLC: Low (Liquidator) v Hughes [2025] FCA 861
Case: [2025] FCA 861
Decision Date: 28 July 2025

CaseChat Overview and Summary

Low, acting as liquidator for a company, filed proceedings against several defendants, including Hughes, seeking various forms of relief under the Corporations Act 2001 (Cth) and common law. The basis of the claim includes allegations of insolvent trading, contraventions of director duties, and breaches of fiduciary duties. The matter was before the Federal Court of Australia, which was asked to consider an application by Hughes and another defendant for a separate trial of a specific legal question.

The primary legal issue before the court was whether it was just and convenient to order a separate trial of a specific question, as proposed by Hughes and the other defendant. The application sought to isolate and address a particular issue related to the relief sought against Hughes and another defendant, assuming the facts alleged in the plaintiffs' further amended statement of claim were established. The court needed to determine whether the proposed separate trial would be an efficient use of judicial resources and whether it would promote a just outcome in the proceedings.

The court granted the application for a separate trial of the specified question, acknowledging that such an order could streamline the proceedings and avoid unnecessary duplication of efforts. The court noted that if the facts alleged were established, the outcome of the question could potentially determine the scope of relief available against Hughes and the other defendant. The court also set out detailed procedural directions for the preparation and hearing of the separate question, including deadlines for the submission of written arguments and the scheduling of the hearing. The court reserved the costs of an earlier interlocutory application by Hughes and the other defendant for later determination.

In summary, the court accepted the application for a separate trial of a specific legal issue and provided clear directions for the proceedings to move forward. The court's decision ensures that the particular question is addressed in an efficient manner, potentially clarifying the relief available against the defendants.

Orders

Orders of the court

1. Pursuant to r 30.01 of the Federal Court Rules 2011 (Cth), the following question arising in the proceeding is to be heard separately from any other questions:

Assuming that the facts alleged in the further amended statement of claim filed on 19 February 2025 are established, could the plaintiffs be granted any of the relief sought against the fifth and sixth defendants in paragraphs 5 to 10 of the amended originating process filed on 1 December 2023 or any relief under section 1324 of the Corporations Act 2001 (Cth) against the fifth and sixth defendants at all?

2. By 4.00 pm AWST on Friday 1 August 2025 the parties are to:

(a) file a joint minute of proposed orders for the filing of written submissions and an eBook of Authorities for the hearing of the separate question referred to in order 1; and

(b) file a list of the parties' mutually available dates for a one day hearing of the separate question referred to in order 1.

3. The costs of the fifth and sixth defendants' interlocutory application dated 22 April 2025 be reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Low (Liquidator) v Hughes [2025] FCA 861

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 17 of 17 shown

Zurich Australian Insurance Ltd v FKP Commercial Developments Pty Ltd
[2023] FCAFC 188 Para 13

…lia) Limited v Tropical Reef Shipyard Pty Limited [2009] FCAFC 161 at [26]; and Zurich Australian Insurance Ltd v FKP Commercial Developments Pty Ltd [2023] FCAFC 188 at [22] (see also Frigger v Professional Services of Australia Pty Ltd (No 3) [2023] FCA 520). As the Full Court noted in Zurich Australian Insurance…
Frigger v Professional Services of Australia Pty Ltd (No 3)
[2023] FCA 520 Para 13

…an Insurance Ltd v FKP Commercial Developments Pty Ltd [2023] FCAFC 188 at [22] (see also Frigger v Professional Services of Australia Pty Ltd (No 3) [2023] FCA 520). As the Full Court noted in Zurich Australian Insurance at [22] (citing Director of Public Prosecutions (Cth) v JM [2013] HCA 30; (2013) 250 CLR 135…
Director of Public Prosecutions (Cth) v JM
[2013] HCA 30 Para 13

…lia Pty Ltd (No 3) [2023] FCA 520). As the Full Court noted in Zurich Australian Insurance at [22] (citing Director of Public Prosecutions (Cth) v JM [2013] HCA 30; (2013) 250 CLR 135 at [29]‑[34]), if the facts that will be determinative of the legal issue are stated in such a way that they are identified with…
QBE Insurance (Australia) Limited v Tropical Reef Shipyard Pty Limited
[2009] FCAFC 161 Para 13

…Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334 at [50]-[52]; QBE Insurance (Australia) Limited v Tropical Reef Shipyard Pty Limited [2009] FCAFC 161 at [26]; and Zurich Australian Insurance Ltd v FKP Commercial Developments Pty Ltd [2023] FCAFC 188 at [22] (see also Frigger v Professional Services…
AWB Ltd v Cole (No 2)
[2006] FCA 913 Para 14

…The plaintiffs also contend that great care must be taken in formulating separate questions. By reference to AWB Limited v Cole (No 2) [2006] FCA 913; (2006) 253 FCR 288 at [35], and the observation by the majority in Bass at [50] that: [A] demurrer assumes that the pleadings exhaust the universe of relevant fact…
Rainsford v Victoria
[2005] FCAFC 163 Para 11

…nt or strike out application. In that regard, the plaintiffs refer to certain observations that were made by Kenny J in Rainsford v State of Victoria [2005] FCAFC 163; (2005) 144 FCR 279 at [39]-[40], that there are differences between the separate question procedure and a strike-out application and a demurrer.…
SmithKline Beecham (Australia) Pty Ltd v Chipman
[2002] FCA 674 Para 17

…may have different views concerning the effect or duration of the assumptions, he cited the case of SmithKline Beecham (Australia) Pty Ltd v Chipman [2002] FCA 674. In that case, the parties agreed upon a series of preliminary questions that would be decided separately from any other question and before any tria…
Novartis Crop Protection Australasia Pty Ltd v Orica Australia Pty Ltd
[2001] FCA 1013 Para 23

…'. In that respect, the plaintiffs rely on what was said by Stone J in Novartis Crop Protection Australasia Pty Limited v Orica Australia Pty Limited [2001] FCA 1013 at [7]: In particular circumstances the separate decision of a question may be appropriate even if it will not bring the proceedings to an end. Examp…
Director of Fisheries (Northern Territory) v Arnhem Land Aboriginal Land Trust
[2001] FCA 98 Para 15

…or insufficiently precise assumed facts in AWB v Cole , Young J cited Director of Fisheries (Northern Territory) v Arnhem Land Aboriginal Land Trust [2001] FCA 98; (2001) 109 FCR 488 at [139], [163]. That was a case concerning the entitlement of holders of commercial fishing licences in the Northern Territory t…
Reading Australia Pty Ltd v Australian Mutual Provident Society
[1999] FCA 718 Para 10

…ularly cited summary of those principles can be found in the judgment of Branson J in Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718; (1999) 240 FCR 276 at [8]-[9], where her Honour said the following: The principles that govern the circumstances in which an order will be made unde…
Bass v Permanent Trustee Co Ltd
[1999] HCA 9 Para 10

…ion based on concrete and established or agreed facts for the purpose of quelling a controversy between the parties ( Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at [45]); (d)where the preliminary question is one of mixed fact and law, it is necessary that the question can be precisely formulated and that all…
GMB Research & Development Pty Ltd v Commonwealth
[1997] FCA 934 Para 10

…ctual issues both at the time of the hearing of the preliminary question and at the time of trial ( GMB Research & Development Pty Ltd v Commonwealth [1997] FCA 934; (ii)result in significant overlap between the evidence adduced on the hearing of the separate question and at trial - possibly involving the calling…
Dr Martens Australia Pty Ltd v Bata Shoe Company of Australia Pty Ltd
[1997] FCA 505 Para 10

…ill have to call evidence to deal with both damages and an account of profits ( Dr Martens Australia Pty Ltd v Bata Shoe Company of Australia Pty Ltd (1997) 75 FCR 230). Another class is proceedings in which an application in the nature of a demurrer is appropriately made. An application of this kind assumes the tru…
Arnold v Attorney-General for Victoria
[1995] FCA 727 Para 10

…e same witnesses at both stages of the hearing of the proceeding ( GMB Research & Development Pty Ltd v Commonwealth; Arnold v Attorney-General (Vic) [1995] FCA 727). This factor will be of particular significance if the Court may be required to form a view as to the credibility of witnesses who may give evidence…
Landsal Pty Ltd (In liq) v REI Building Society
[1993] FCA 171 Para 10

…of one party or the other, being an 'issue', and less decisive matters of dispute being 'questions' ( Landsal Pty Ltd (in liq) v REI Building Society (1993) 41 FCR 421 at 425); (b)a question can be the subject of an order for a separate decision under O 29, r 2 even though a decision on such a question will not dete…
Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd
[1985] FCA 476 Para 10

…which an applicant frames its case and determination of the issue would leave significant other issues unresolved ( CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 601 at 606 per Kirby P); (f)factors which tend to support the making of an order under O 29, r 2 include that the separate determination of the question…
[1970] AC 179
[1970] AC 179 Para 10

…ion, or as agreed facts or as facts to be judicially determined ( Jacobson v Ross [1995] 1 VR 337 at 341, referring to Attorney General (UK) v Nissan [1970] AC 179 at 242-243 per Lord Pearson; Bass v Perpetual Trustee at [53]); (e)care must be taken in utilising the procedure provided for in O 29, r 1 to avoid t…

Legislation cited in this decision · 10

Corporations Act 2001 (Cth)
1317H, 1324, 180, 588G, 588M 6 mentions (from Para 1)
Civil Liability Act 2002 (TAS)
5AK 2 mentions
Federal Court of Australia Act 1976 (Cth)
37M 2 mentions (from Para 11)
Federal Court Rules 2011 (Cth)
30.01 2 mentions (from Para 5)
Professional Standards Act 1997 (WA)
2 mentions (from Para 7)
Taxation Administration Act 1953 (Cth)
255 2 mentions (from Para 15)
Income Tax Assessment Act 1997 (Cth)
1 mention (from Para 15)
Professional Standards Act 2003 (Vic)
1 mention (from Para 7)
Tax Administration Act 1953 (Cth)
1 mention (from Para 6)
Wrongs Act 1958 (Vic)
24AI 1 mention

File number:	WAD 97 of 2023
Judgment of:	VANDONGEN J
Date of judgment:	28 July 2025
Catchwords:	CORPORATIONS - application for trial of separate question pursuant to r 30.01 of the Federal Court Rules 2011 (Cth) - whether just and convenient for order to be made - application granted
Legislation:	Corporations Act 2001 (Cth) ss 180, 588G, 588M, 1317H, 1324 Federal Court of Australia Act 1976 (Cth) s 37M Income Tax Assessment Act 1997 (Cth) Taxation Administration Act 1953 (Cth) s 255-15, Schedule 1 Federal Court Rules 2011 (Cth) r 30.01 Professional Standards Act 2003 (Vic) Wrongs Act 1958 (Vic) s 24AI Civil Liability Act 2002 (WA) s 5AK Professional Standards Act 1997 (WA)
Cases cited:	AWB Limited v Cole (No 2) [2006] FCA 913; (2006) 253 FCR 288 Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334 Director of Fisheries (Northern Territory) v Arnhem Land Aboriginal Land Trust [2001] FCA 98; (2001) 109 FCR 488 Director of Public Prosecutions (Cth) v JM [2013] HCA 30; (2013) 250 CLR 135 Frigger v Professional Services of Australia Pty Ltd (No 3) [2023] FCA 520 Novartis Crop Protection Australasia Pty Limited v Orica Australia Pty Limited [2001] FCA 1013 QBE Insurance (Australia) Limited v Tropical Reef Shipyard Pty Limited [2009] FCAFC 161 Rainsford v State of Victoria [2005] FCAFC 163; (2005) 144 FCR 279 Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718; (1999) 240 FCR 276 SmithKline Beecham (Australia) Pty Ltd v Chipman [2002] FCA 674 Zurich Australian Insurance Ltd v FKP Commercial Developments Pty Ltd [2023] FCAFC 188
Division:	General Division
Registry:	Western Australia
National Practice Area:	Commercial and Corporations
Sub-area:	Corporations and Corporate Insolvency
Number of paragraphs:	47
Date of hearing:	12 May 2025
Counsel for the Plaintiffs:	Mr WCJ Zappia with Mr WB MacDonald
Solicitor for the Plaintiffs:	Roe Legal Services
Counsel for the First, Second, Third and Fourth Defendants:	The first, second, third and fourth defendants did not appear
Counsel for the Fifth and Sixth Defendants:	Mr MCJ Hoffman KC with Mr JS Slack-Smith
Solicitor for the Fifth and Sixth Defendants:	Hall & Wilcox

WAD 97 of 2023
BETWEEN:	JENNIFER ELIZABETH LOW IN HER CAPACITY AS LIQUIDATOR OF ACN 116 313 921 PTY LTD (IN LIQUIDATION) (FORMERLY TITAN INTERACTIVE PTY LTD) (ACN 116 313 921)) First Plaintiff ACN 116 313 921 PTY LTD (IN LIQUIDATION) (FORMERLY TITAN INTERACTIVE PTY LTD (ACN 116 313 921)) Second Plaintiff
AND:	BRYAN KEVIN HUGHES First Defendant WAYNE HUGHES Second Defendant NORMAN ABBY ASCH Third Defendant IAN PETER THUBRON Fourth Defendant PITCHER PARTNERS (WA) PTY LTD Fifth Defendant PITCHER PARTNERS ACCOUNTANTS & ADVISORS WA PTY LTD Sixth Defendant
ORDER MADE BY:	VANDONGEN J
DATE OF ORDER:	28 JULY 2025