Re Fordex Pty Ltd (in liq) - [2025] VSC 180

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT
CORPORATIONS LIST

S ECI 2024 05823

IN THE MATTER of FORDEX PTY LTD (IN LIQ) (ACN 106 096 655)

BETWEEN:

THE STATE OF VICTORIA	Plaintiff
v
FORDEX PTY LTD (IN LIQUIDATION) (ACN 106 096 655)	First Defendant
- and -
PHILIP NEWMAN IN HIS CAPACITY AS LIQUIDATOR OF FORDEX PTY LTD (IN LIQUIDATION) (ACN 106 096 655)	Second Defendant

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JUDGE:	Steffensen AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	13 March 2025
DATE OF RULING:	13 March 2025 (ex tempore; revised 9 April 2025)
CASE MAY BE CITED AS:	Re Fordex Pty Ltd (in liq)
MEDIUM NEUTRAL CITATION:	[2025] VSC 180

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WINDING UP – Liquidator – Disclaimer of onerous property – Lease – Personal property – Application to set aside disclaimer before it takes effect – Effect of disclaimer on rights accrued between the notional effective date of the disclaimer and the hearing of the application to set aside – Effect of disclaimer on Landlord’s rights in personal property left on the premises – Disclaimer not set aside – Corporations Act 2001 (Cth) ss 568, 568B, 568C, 568D – Willmott Growers Group Inc v Willmott Forests Ltd (recs and mgrs apptd) (in liq) (2013) 251 CLR 592 – Hindcastle Ltd v Barbara Attenborough AssociatesLtd [1997] AC 70.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	S Hogan	Corrs Chambers Westgarth
For the Defendants	V Bell	Lander & Rogers

TABLE OF CONTENTS

A.. Introduction

B.. Legislative scheme

C.. Are all future rights and obligations of a lease terminated?

D.. What is the relevant date for determining whether rights have accrued?

E... What is the effect of the disclaimer?

HER HONOUR:

A Introduction

This ruling concerns the State of Victoria’s application to set aside a disclaimer of property by the liquidator of Fordex Pty Ltd, the first defendant.
On 16 October 2024, the Federal Court of Australia ordered that Fordex be wound up in insolvency and the second defendant be appointed as liquidator. The next day, 17 October 2024, the liquidator issued a notice pursuant to s 568 of the Corporations Act 2001 (Cth) (‘Corporations Act’) disclaiming property of Fordex and a lease entered into between Fordex and its landlord in respect of the premises from which it conducted its business. The disclaimed property is all plant and equipment, stock, waste (including hazardous waste), and containers of waste located on the leased premises. On 23 October 2024, the landlord re-entered the premises pursuant to its right of re-entry that arose because of the liquidator’s appointment.
The State is concerned that if the disclaimer is allowed to come into effect, it will be responsible for the disclaimed hazardous waste material left on the premises by Fordex, by reason of the doctrine of bona vacantia. The effect of bona vacantia is that ownerless personal property situated in the State will vest in the Crown in the right of the State of Victoria. The State is concerned that…

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 Re Fordex Pty Ltd (in liq)

Details

AGLC: Re Fordex Pty Ltd (in liq) [2025] VSC 180
Case: [2025] VSC 180
Decision Date: 13 March 2025 (ex tempore; revised 9 April 2025)

CaseChat Overview and Summary

The case of Re Fordex Pty Ltd (in liq) involved the liquidator of the company seeking to disclaim certain onerous property, specifically a lease. The matter was heard in the Federal Court of Australia, where the liquidator sought to set aside the disclaimer before it took effect. The landlord opposed the application, arguing that the disclaimer would adversely affect its rights.

The primary legal issues before the court were whether the disclaimer could be set aside before it took effect and the implications of the disclaimer on the rights accrued between the notional effective date of the disclaimer and the hearing of the application to set aside. Additionally, the court considered the effect of the disclaimer on the landlord’s rights in personal property left on the premises. The court needed to balance the interests of the company and its creditors, represented by the liquidator, with those of the landlord.

The court held that the disclaimer could not be set aside before it took effect, as per the provisions of the Corporations Act 2001 (Cth). The court found that the disclaimer would have the effect of releasing the company from any future liabilities under the lease, including accrued rights between the notional effective date of the disclaimer and the hearing. The court also determined that the landlord's rights in personal property left on the premises would be unaffected by the disclaimer. The decision was influenced by the High Court’s ruling in Willmott Growers Group Inc v Willmott Forests Ltd (recs and mgrs apptd) (in liq) and the UK House of Lords decision in Hindcastle Ltd v Barbara Attenborough Associates Ltd.

The court dismissed the application to set aside the disclaimer, leaving the company free from any further liabilities under the lease. The landlord's rights in personal property left on the premises remained unaffected.

Orders