Re Great Southern Managers Australia Ltd (in liq)
[2014] WASC 312
•5/09/14
RE GREAT SOUTHERN MANAGERS AUSTRALIA LTD (IN LIQ); EX PARTE MARTIN BRUCE JONES, DARREN GORDON WEAVER AND JAMES HENRY STEWART (IN THEIR CAPACITY AS LIQUIDATORS OF GREAT SOUTHERN MANAGERS AUSTRALIA LTD (IN LIQ)) [2014] WASC 312
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 312 | |
| Case No: | COR:129/2014 | 19 AUGUST 2014 & WRITTEN SUBMISSIONS 22 AUGUST 2014 | |
| Coram: | PRITCHARD J | 5/09/14 | |
| 24 | Judgment Part: | 1 of 1 | |
| Result: | Application granted | ||
| B | |||
| PDF Version |
| Parties: | MARTIN BRUCE JONES, DARREN GORDON WEAVER AND JAMES HENRY STEWART (IN THEIR CAPACITY AS LIQUIDATORS OF GREAT SOUTHERN MANAGERS AUSTRALIA LTD (IN LIQ)) |
Catchwords: | Corporations law Winding up Application by liquidators for approval of entry into settlement deed Application for approval where obligations under settlement deed to be performed more than 3 months after agreement entered into Principles to be applied |
Legislation: | Corporations Act 2001 (Cth) |
Case References: | Anglican Insurance Ltd [2008] NSWSC 41 Bauhaus Pyrmont Pty Ltd (in liq) [2007] NSWSC 936; (2007) 64 ACSR 646 Chubb Insurance Company of Australia Ltd v Moore [2013] NSWCA 212; (2013) 302 ALR 101 Dean-Willcocks v Soluble Solution Hydroponics Pty Ltd (1997) 42 NSWLR 209 Hall v Hall [2007] WASC 198 Handberg (in his capacity as liquidator of S&D International Pty Ltd) (in liq) v MIG Property Services Pty Ltd [2010] VSC 336; (2010) 79 ACSR 373 Handberg (in his capacity as liquidator of S&D International Pty Ltd) (in liq) v MIG Property Services Pty Ltd [2012] VSC 551; (2012) 92 ACSR 38 Jones, Saker, Weaver and Stewart (liquidators), in the matter of Great Southern Ltd (in liq) [2012] FCA 1072 Judge (as liquidator of Citystyle Enterprises Pty Ltd v Trifield Corporation Pty Ltd [2011] WASC 122 Re 7 Steel Distribution Pty Ltd (in liq) [2013] NSWSC 669 Re Addstone Pty Ltd (1997) 25 ACSR 357 Re Bell Group Ltd (In Liq); Ex parte Antony Leslie John Woodings as Liquidator of the Bell Group Ltd (in liq) [2013] WASC 409; (2013) ACSR 117 Re County Marine Insurance Co; Rance's Case (1870) LR 6 Ch App 104 Re GB Nathan & Co Pty Ltd (in liq) (1991) 24 NSWLR 674 Re HIH Insurance Ltd [2004] NSWSC 5 Re Mineral Securities (Australia) Ltd [1973] 2 NSWLR 207 Re Newtronics Pty Ltd; Ex parte Stewart [2007] FCA 1375 Re One.Tel Ltd [2014] NSWSC 457; (2014) 99 ACSR 247 Re Opel Networks Pty Ltd [2013] NSWSC 1245 Re Purchas (as Liquidator of Astarra Asset Management Pty Ltd (in liq)) [2011] NSWSC 91 Re The Bell Group Ltd (in liq); Ex parte Woodings (as liquidator of the Bell Group Ltd (in liq)) [2009] WASC 235 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- & WRITTEN SUBMISSIONS 22 AUGUST 2014
MARTIN BRUCE JONES, DARREN GORDON WEAVER AND JAMES HENRY STEWART (IN THEIR CAPACITY AS LIQUIDATORS OF GREAT SOUTHERN MANAGERS AUSTRALIA LTD (IN LIQ))
Plaintiffs
Catchwords:
Corporations law - Winding up - Application by liquidators for approval of entry into settlement deed - Application for approval where obligations under settlement deed to be performed more than 3 months after agreement entered into - Principles to be applied
Legislation:
Corporations Act 2001 (Cth)
Result:
Application granted
Category: B
Representation:
Counsel:
Plaintiffs : Mr M Oakes QC & Mr D B Shaw
By leave : Mr D J Marsh
Solicitors:
Plaintiffs : DLA Piper Australia
By leave : Solomon Brothers
Cases referred to in judgment:
Anglican Insurance Ltd [2008] NSWSC 41
Bauhaus Pyrmont Pty Ltd (in liq) [2007] NSWSC 936; (2007) 64 ACSR 646
Chubb Insurance Company of Australia Ltd v Moore [2013] NSWCA 212; (2013) 302 ALR 101
Dean-Willcocks v Soluble Solution Hydroponics Pty Ltd (1997) 42 NSWLR 209
Hall v Hall [2007] WASC 198
Handberg (in his capacity as liquidator of S&D International Pty Ltd) (in liq) v MIG Property Services Pty Ltd [2010] VSC 336; (2010) 79 ACSR 373
Handberg (in his capacity as liquidator of S&D International Pty Ltd) (in liq) v MIG Property Services Pty Ltd [2012] VSC 551; (2012) 92 ACSR 38
Jones, Saker, Weaver and Stewart (liquidators), in the matter of Great Southern Ltd (in liq) [2012] FCA 1072
Judge (as liquidator of Citystyle Enterprises Pty Ltd v Trifield Corporation Pty Ltd [2011] WASC 122
Re 7 Steel Distribution Pty Ltd (in liq) [2013] NSWSC 669
Re Addstone Pty Ltd (1997) 25 ACSR 357
Re Bell Group Ltd (In Liq); Ex parte Antony Leslie John Woodings as Liquidator of the Bell Group Ltd (in liq) [2013] WASC 409; (2013) ACSR 117
Re County Marine Insurance Co; Rance's Case (1870) LR 6 Ch App 104
Re GB Nathan & Co Pty Ltd (in liq) (1991) 24 NSWLR 674
Re HIH Insurance Ltd [2004] NSWSC 5
Re Mineral Securities (Australia) Ltd [1973] 2 NSWLR 207
Re Newtronics Pty Ltd; Ex parte Stewart [2007] FCA 1375
Re One.Tel Ltd [2014] NSWSC 457; (2014) 99 ACSR 247
Re Opel Networks Pty Ltd [2013] NSWSC 1245
Re Purchas (as Liquidator of Astarra Asset Management Pty Ltd (in liq)) [2011] NSWSC 91
Re The Bell Group Ltd (in liq); Ex parte Woodings (as liquidator of the Bell Group Ltd (in liq)) [2009] WASC 235
1 PRITCHARD J: By originating process dated 4 July 2014 (the Application), Mr Jones, Mr Weaver and Mr Stewart (the Liquidators), who are the liquidators of Great Southern Managers Australia Limited (in Liq) (GSMAL), seek:
1. a direction pursuant to s 511 of the Corporations Act 2001 (Cth) (the Act) to the effect that they are justified in entering into, and performing, a deed of settlement (the Settlement Deed), the details of which are set out below;
2. an order pursuant to s 477(2B) of the Act approving their entry into the Settlement Deed notwithstanding that obligations under that Deed may be discharged by performance more than three months after it is entered into; and
3. an order that their costs of the application be costs in the winding up of GSMAL.
2 For the reasons set out below, I have concluded that the direction pursuant to s 511 of the Act should be given, and entry into the Settlement Deed should be approved for the purposes of s 477(2B) of the Act. It is appropriate that there be an order that the Liquidators' costs of the application should be costs in the winding up of GSMAL.
3 In these reasons for decision I deal with the following matters:
(a) background facts and overview of the Settlement Deed;
(b) the ex parte Application;
(c) principles in relation to s 511 of the Act;
(d) why a direction should be given pursuant to s 511 of the Act in this case;
(e) principles in relation to s 477(2B) of the Act;
(f) why approval should be granted pursuant to s 477(2B) of the Act in this case;
(g) the costs of the Application.
(a) Background facts and overview of the Settlement Deed
4 In support of the Application, the Liquidators read the affidavit of Darren Gordon Weaver sworn 4 July 2014, affidavits sworn by David Brian Shaw on 24 July 2014, 29 July 2014 and 20 August 2014, and affidavits sworn by Brett Kent Andrew Orzel on 24 July 2014 and on 19 August 2014. Save where otherwise indicated, the following background facts are largely drawn from Mr Weaver's affidavit and from Mr Shaw's affidavit sworn on 24 July 2014, and the attachments to those affidavits.
5 In this section of my reasons I deal with the following matters:
(i) the liquidation of GSMAL;
(ii) the litigation the subject of the proposed Settlement Deed;
(iii) other litigation in the course of GSMAL's liquidation;
(iv) GSMAL's financial position;
(v) GSMAL's insurance;
(vi) the Settlement Deed;
(vii) other possible claimants.
(i) The liquidation of GSMAL
6 On 16 May 2009 various companies in the Great Southern group of companies (the Great Southern Group), including Great Southern Limited (GSL) and GSMAL, went into administration. On 18 May 2009 receivers and managers were appointed to various companies in the Great Southern Group, including GSMAL, but they retired from GSMAL on 18 December 2013. On 19 November 2009 the creditors of GSMAL resolved that GSMAL be wound up, and the Liquidators (who until then had been the administrators of the Great Southern Group) were appointed the liquidators of GSMAL. They are also the liquidators of GSL and some subsidiary and related companies.
7 Mr Jones, Mr Stewart and Mr Weaver have acted as the Liquidators since 2009. Until 13 June 2014, when he retired as a liquidator, Mr Andrew John Saker was also one of the Liquidators of GSMAL.
(ii) The litigation the subject of the proposed Settlement Deed
8 Prior to 16 May 2009, GSMAL was the responsible entity for a number of managed investment schemes under Chapter 5C of the Act, namely the Great Southern 2006 Beef Cattle Project (ARSN 118 784 026), the Great Southern 2007 Beef Cattle Project (ARSN 118 784 115), the Great Southern 1998 Plantations Project (ARSN 092 780 204), the Great Southern 1999 Plantations Project (ARSN 092 452 849), the Great Southern 2000 Plantations Project (ARSN 085 669 361), the Great Southern 2001 Plantations Project (ARSN 089 958 029), the Great Southern 2002 Plantations Project (ARSN 095 343 963) and the Great Southern 2003 Plantations Project (ARSN 099 131 825) (the Schemes).
9 Nine actions have been commenced in this Court, by a large number of persons who invested in the Schemes, against GSMAL and five former directors (the WA Proceedings). I refer to all of the plaintiffs in the WA Proceedings as the Claimants. Two of the actions comprising the WA Proceedings pertain to the Beef Cattle Schemes.1 Six of the actions comprising the WA Proceedings pertain to the Plantation Schemes.2 The final action which comprises the WA Proceedings was commenced by Claimants who were not included as plaintiffs in the other WA Proceedings.3 That action is a consolidation of claims similar to those in the other actions. It was commenced by persons who were members of the Beef Cattle Schemes and of the Plantation Schemes.
10 For present purposes it is not necessary to set out in great detail the various claims made in the WA Proceedings. A broad overview (which is drawn largely from the pleadings in evidence) will suffice. The WA Proceedings arose out of alleged conduct on the part of GSMAL and its former directors in connection with a proposal which has come to be referred to as 'Project Transform'. In essence, it was proposed that Great Southern would be restructured into a business focusing on forestry, agricultural investment services and cattle, and to this end GSL proposed that it would acquire the interests of the investors in the Schemes, in exchange for shares in GSL.
11 Schemes of Arrangement (Arrangements) were required to be entered into in order to effect this exchange, and members of the Schemes met to consider whether to approve those Arrangements. At a meeting of the members of the Beef Cattle Schemes on 19 January 2009 (the Meeting), more than 75% in value of votes were cast in favour of the proposed Arrangements. Members of the Plantation Schemes also met at the Meeting but less than 75% in value of votes were cast in favour of the resolutions relating to the Plantation Schemes. However, members of the Plantation Schemes also received individual offers for the exchange of their Scheme interests for GSL shares in the event that the Arrangements were not approved. A number of members of the Plantation Schemes accepted these individual offers.
12 In February 2009, shares in GSL were issued to all members of the Beef Cattle Schemes, and the rights of the members of those Schemes were terminated, or were sold or assigned to a subsidiary of GSL. Shares in GSL were issued to those members of the Plantation Schemes who had not withdrawn their individual offers to exchange their interests in the Schemes for GSL shares, and the rights of those members were terminated or were sold or assigned to a subsidiary of GSL.
13 The Claimants were the holders of interests in the Schemes who received shares in GSL in exchange for the termination, or sale or assignment of their interests in the Schemes. They allege that the Meeting which was held in respect of the Schemes, and the resolutions passed at the Meeting in respect of Project Transform (including to approve the Arrangements), were not conducted, or passed, in compliance with the requirements of the Act. The Claimants allege that some of the defendant directors recommended to Scheme members that they vote in favour of the resolutions considered at the Meeting, and that GSMAL and some of the defendant directors induced some Scheme members to change their votes prior to the Meeting. The Claimants also allege that prior to the Meeting, the defendant directors of GSMAL were aware that there was a serious risk that the Great Southern Group would be unable to continue as a going concern. If that were so, Scheme members would be likely to be financially better off if the Arrangements were not approved at the Meeting, and if a substitute responsible entity were appointed to the Schemes in place of GSMAL. The Claimants allege that for these reasons, it was not in the best interest of the members of each Scheme to approve the Arrangements or to exchange their interests in the Schemes for shares in GSL.
14 The Claimants allege that in taking steps to pursue Project Transform, GSMAL contravened various duties imposed on it by the Act, and that the defendant directors of GSMAL were involved in GSMAL's contraventions of the Act, and themselves breached various duties to which they were subject under the Act.
15 The Claimants allege that but for the contraventions of the Act by GSMAL and the defendant directors, none of the Claimants would have suffered loss and damage as a result of the exchange of their interests in the schemes for GSL shares. They claim that they are entitled to recover their loss and damage from GSMAL, or from the defendant directors, pursuant to the Act.
16 In the defences filed in the WA Proceedings, the Liquidators dispute a number of the facts pleaded by the Claimants and deny any liability for the loss and damage the Claimants claim to have suffered. In essence, the defence is that GSMAL received and acted upon an independent expert report which advised that the Arrangements were in the best interests of the Scheme members as a whole and that this report (and updates of it) together with all relevant information in relation to GSL's finances were made available to Scheme members in connection with the proposed Arrangements. Any breach of the Act by GSMAL is denied, as is the claim that GSMAL's contravention of the Act resulted in the loss and damage the Claimants claim to have suffered. The total quantum of the claims made by all of the Claimants was said to amount to more than $90 million. The Liquidators dispute that figure on several grounds.
17 The WA Proceedings are at an early stage. That is particularly so in relation to CIV 1925 of 2014 in which the only pleading so far filed is the Statement of Claim. Mr Weaver deposed that if the other WA Proceedings were to continue, amendment of the pleadings in these actions may be required. Further, discovery is ongoing, and witness statements (for lay and expert witnesses) have not yet been prepared. The nature of the claims and the issues in dispute are such that a significant amount of legal work would be required in order to prepare the WA Proceedings for trial, were those matters to continue. Extensive expert evidence would no doubt have been directed to the quantum of loss and damage claimed by the Claimants.
(iii) Other litigation in the course of GSMAL's liquidation
18 The WA Proceedings are not the only litigation involving GSMAL which has been on foot in the course of the Liquidation. It is necessary to briefly mention some of that litigation.
The Victorian proceedings
19 A number of proceedings are underway in the Supreme Court of Victoria against GSMAL and some of its directors (the Victorian proceedings). There was no evidence about the nature of the Victorian proceedings (other than as to their cost and proposed settlement, to which I refer in a moment). However, it appears4 that the Victorian proceedings were commenced by a large number of plaintiffs who claim to have suffered loss and damage as a result of their reliance on a product disclosure statement issued by GSMAL in relation to two managed investment schemes (namely the Great Southern Plantation 2005 Project, and the Great Southern Plantation 2006 Project). The plaintiffs allege that that product disclosure statement failed to disclose relevant information, or contained misleading information, contrary to the provisions of the Act, the Australian Securities and Investment Commission Act 2001 (Cth) (the ASIC Act) or the Fair Trading Act 1999 (Vic). The Victorian proceedings were the subject of a lengthy trial, but the parties agreed on a proposed settlement before the Court delivered judgment. Mr Weaver's understanding is that an application for the Court's approval of the proposed settlement of the Victorian proceedings (which is necessary because those proceedings involve a class action) has not yet been heard.
The Insurance Proceedings
20 Proceedings were commenced in the Supreme Court of New South Wales by parties (including plaintiffs in the Victorian proceedings and the WA proceedings) against GSMAL's insurers in relation to the priority of payments under its insurance policies (the Insurance proceedings). A judgment in the Insurance proceedings is the subject of an application for special leave to appeal to the High Court.
The PWC Action
21 GSL, Great Southern Finance Pty Ltd (In Liq) (GSF), GSMAL and the Liquidators have commenced an action against PriceWaterhouseCoopers (PWC) (the PWC action).5 According to the indorsement on the writ, the plaintiffs in the PWC action allege that PWC was engaged by GSL to audit and review its financial reports and those of its controlled entities, including GSMAL, and to provide accounting, taxation, and corporate finance services and advice from time to time. The plaintiffs in the PWC action allege that PWC provided unqualified audit opinions for the financial years ending 30 June 2005 and 30 June 2006, and for the three month period ending 30 September 2006, which did not reflect a true and fair view (as required by the Act) of the financial position of GSL, GSF, GSMAL or of the GSL Group. They allege that the audit work and services provided by PWC were not of the standard of a reasonably competent auditor or chartered accountant, and that PWC thereby breached various duties it owed to the plaintiffs in contract, tort and pursuant to statute, and engaged in misleading and deceptive conduct or made misleading statements, contrary to the Act, to the Trade Practices Act 1974 (Cth) and to the Fair Trading Act 1987 (WA). The plaintiffs in the PWC action claim damages or equitable or statutory compensation for loss or damage arising out of PWC's conduct.
The Director's Action
22 GSL and the Liquidators have commenced an action against seven directors of GSL (the Directors action).6 According to the indorsement on the writ in the Directors action, the plaintiffs claim that the directors failed to take steps to ensure that GSL's financial statements for the financial year ending June 2006 presented a true and fair view of the financial position of GSL and of the Great Southern Group, and that their annual directors' reports for that financial year failed to comply with the Act (in that they failed to give details of matters that may have significantly affected GSL's operations, results and state of affairs in future years). The plaintiffs also claim that the directors contravened the Act in that they were involved in GSL's contravention of its obligations to notify the market of information which a reasonable person would expect to have a material effect on the price or value of certain securities, and engaged in conduct in relation to a financial product or service that was misleading or deceptive. The plaintiffs in the Directors action claim damages or statutory or equitable compensation for losses or damage they claim to have suffered as a result of the directors' alleged contraventions of the Act or the ASIC Act.
(iv) GSMAL's financial position
23 Mr Weaver deposed that the liquidation of GSMAL is largely unfunded. Other than monies available under GSMAL's insurance policies there are no funds available to GSMAL to pay the legal costs of defending the WA Proceedings or any amount in settlement of the WA Proceedings.
24 GSMAL is a creditor of other related entities in the Great Southern Group. Even if funds were recovered from those entities, Mr Weaver expects that any such funds will be entirely eroded against the Liquidators' remuneration and costs incurred and unpaid to date.
25 Whether GSMAL will recover any funds as a result of litigation pursued by the Liquidators is contingent on the outcome of that litigation and is necessarily uncertain.
(v) GSMAL's insurance
26 GSL had a policy of insurance for the period the subject of the WA Proceedings (the Primary Policy). The Primary Policy included coverage for professional liability (PI Insurance) of $30 million and Directors' and Officers' liability (D and O Insurance) of $30 million. GSL also had a number of insurance policies for amounts in excess of the coverage provided by the Primary Policy, which cumulatively provide a further $70 million coverage for PI Insurance (the PI Excess Policies) and a further $130 million for D and O insurance (the D and O Excess Policies). A large number of insurers are involved (the Insurers).
27 The limit of the PI Insurance component of the Primary Policy has been exhausted by the payment of defence costs (in connection with the Victorian proceedings, and the WA Proceedings) and legal representation expenses, as has some of the excess coverage under the PI Excess Policies. However, approximately $50 million of the coverage available under the PI Excess Policies has not been utilised.
28 The Insurers under the PI Excess Policies propose to use the funds available under those policies to fund the settlement of the WA Proceedings and the Victorian proceedings (if the latter is approved by the Supreme Court of Victoria). It is anticipated that the excess cover available under the PI Excess Policies will largely be exhausted by these payments.
29 No decision has had to be made as to whether the D and O insurance under the Primary Policy could be drawn on in respect of the Victorian Proceedings, the WA Proceedings, or any further claims that might be made in respect of Project Transform. The Liquidators think that it could. The actual extent of the D and O insurance cover has not been explored in view of the fact that funds available under the PI Insurance Policies will cover the settlement sums to be paid in the WA Proceedings and the Victorian Proceedings. The application of the D and O insurance component of GSMAL's policies would need to be determined if further claimants were to commence proceedings against GSMAL arising from Project Transform.
(vi) The Settlement Deed
30 A copy of the Settlement Deed was annexed to Mr Weaver's affidavit. It has not been executed because the Liquidators are awaiting the direction of the Court before doing so. The Settlement Deed contains a confidentiality clause. So as not to wholly undermine the utility of such a clause, the following summary of the terms of the Deed is somewhat truncated.
31 All of the Claimants in the WA Proceedings are to be parties to the Settlement Deed, as are GSMAL (In Liq), the Liquidators, and the directors who are defendants in the WA Proceedings. The WA Proceedings have been funded by Bentham IMF (IMF). IMF, who is to be a party to the Settlement Deed, will covenant that it has authority on behalf of the Claimants to enter into the Deed and to cause it to be executed on their behalf and to settle the WA Proceedings on their behalf. The settlement is conditional upon a fixed proportion of the Claimants giving notice that they agree to the settlement. In the event of a dispute about IMF's authority to settle, IMF will indemnify GSMAL, its related entities, and the Insurers against any loss or damage suffered. All of the Claimants in the WA Proceedings are represented by Solomon Brothers, and that firm is also to be a party to the Settlement Deed.
32 The Settlement Deed requires the payment of a Settlement Sum. Although substantial, it is considerably less than the total loss and damage claimed by the Claimants. As I have already mentioned, the Settlement Sum will be paid by the Insurers.
33 In consideration for the payment of the Settlement Sum and the terms of the Deed, the Claimants will agree to a waiver and release of all claims that they have, or may have, against GSMAL, its related entities and the Insurers, arising out of Project Transform, the subject matter of the WA Proceedings, the Insurance Proceedings, or any other cause of action in connection with the business of or collapse of GSMAL and its related entities and the performance of its directors. (However, the Settlement Deed does not apply to, or settle, the Victorian Proceedings.) The Settlement Deed is to operate as a deed poll in the Insurer's favour in relation to the Claimants' waiver and release.
34 Solomon Brothers and IMF will agree not to act, fund or assist any person to commence any further proceeding against GSMAL and its related entities arising out of those matters.
35 The parties will also agree that they will not sue the Liquidators in respect of any matter arising in connection with the Deed.
36 A number of obligations under the Settlement Deed will be discharged by performance more than three months after the Deed is entered into. These are the release and discharge by the Claimants, the agreement by Solomon Brothers and IMF not to act in or fund further litigation, the Parties' agreement not to sue the Liquidators, the Indemnity given by IMF, an obligation to advise IMF of any dispute by a Claimant of IMF's authority to settle, and obligations relating to non-disparagement and confidentiality.
37 Mr Weaver's view was that it is in the interests of those concerned in the winding up of GSMAL that the Settlement Deed be entered into, and that GSMAL's creditors will benefit from the releases given in respect of the WA Proceedings.
38 Mr Weaver also deposed that until such time as the WA Proceedings are finalised, the liquidation of GSMAL cannot be finalised. In his view, settlement of the WA Proceedings will be a significant step towards finalisation of the liquidation.
39 Mr Weaver deposed that the obligations under the Settlement Deed which will be discharged more than three months after the Deed is entered into, would not protract the liquidation and are consistent with its expeditious completion.
(vii) Other possible claimants
40 The Claimants comprise approximately 48% (by value of funds invested) of the total number of persons who exchanged their interests in the Schemes for shares in GSL. Accordingly, although the proposed settlement of the WA Proceedings will resolve the claims made by the Claimants, it will not resolve any claims which might potentially be brought by any of the remaining persons who exchanged their interests in the Schemes for GSL shares. Mr Weaver understands that the limitation period for commencing proceedings in respect of any alleged loss and damage by such other persons would expire in 2015.
41 Mr Orzel deposed that on 8 August 2014, he posted a notice to creditors on the Liquidators' website, in a section concerning creditors of the Great Southern Group. That notice advised of the proposed settlement of the WA Proceedings, and of the Application, and advised that any person seeking information in relation to these matters could contact the Liquidators' office. No creditor of GSMAL had contacted the Liquidator's office in response to that notice prior to the hearing.
(b) The ex parte Application
42 The Application was made ex parte. An application for approval under s 477(2B) of the Act may be made ex parte, because the court's approval is not an endorsement of the proposed agreement, but merely a permission for the liquidator to exercise his or her own commercial judgment to enter into the agreement.7
43 Although applications under s 511 of the Act are often brought on notice to parties affected by the decision, there is no invariable rule that such an application cannot be brought on an ex parte basis,8 and it is not uncommon for applications under s 511 to be made ex parte. Whether that is appropriate will depend upon the nature of the direction or orders sought under s 511. A failure to make the application on notice to parties from whom the court would need to hear to properly consider the application would be a reason for refusing to make the direction sought.9
44 This was not a case where it was necessary to make the application on notice to other parties. All of the persons presently affected by the proposed entry into the Settlement Deed clearly support the proposed settlement. Counsel for the Claimants was granted leave to appear on the hearing of the application and lent the Claimants' support to the application.
45 Conscious of their obligations on an ex parte application to disclose all relevant material,10 and of the need to do so in order to derive the protection from liability afforded by a direction under s 511 of the Act,11 the Liquidators sought to disclose in the Application two matters to which I have not so far referred. First, Mr Saker has entered into an agreement with IMF pursuant to which he will become the Managing Director of IMF from January 2015. Secondly, the Liquidators drew to the Court's attention an allegation made against Mr Saker, and against them, in the course of ex parte applications made by the Liquidators in the PWC action and the Directors action. The allegation was that Mr Saker, and in turn the Liquidators, failed to disclose material facts relevant to those applications. I will refer to this as the disclosure issue.
(i) The essence of the disclosure issue
46 In the PWC action and the Directors action, the writs of summons were filed but not served within 12 months. The validity of each writ was extended by an order made by a Registrar of the Court on the ex parte application of the Liquidators. In support of the latter applications, the Liquidators relied on affidavits sworn by Mr Saker. The basis for those applications was that there had been insufficient time, within the 12 months since the writ was filed, to carry out investigations into the accuracy of the accounts of GSL and of the Great Southern Group, and thus to determine whether the claims against PWC and the directors ought be pursued.
47 Following service of the writ on them, PWC and three of the defendants in the Directors action (Mr Young, Mr Rhodes and Mr Butlin) filed applications to have the writs and service set aside, and to set aside the order extending the writ which was made in each action.
48 Those applications were heard before Allanson J in June this year. His Honour's decision in each matter is reserved.
49 One of the arguments advanced by Mr Rhodes and Mr Butlin was that the Liquidators had failed to disclose material facts which were relevant to the question of whether there was a good reason for the delay in the service of the writ. The alleged failure to disclose material facts was said to have arisen in the affidavits sworn by Mr Saker which were filed in support of the applications for extension of the writs. Mr Rhodes and Mr Butlin contended that those material facts included the fact that in the Victorian proceedings, the Liquidators had adopted the position that GSMAL and/or GSL was in a strong financial position, that the product disclosure statements were correct in so far as they represented the strength of GSMAL and/or GSL's financial position by reference to its accounts, and that the Liquidators had adduced expert evidence in support of their case. Mr Rhodes and Mr Butlin alleged that the Liquidators had failed to disclose that the claims set out in the writ in the Directors action were inconsistent with the case which the Liquidators ran in the Victorian proceedings.
50 It appears that PWC made similar allegations of nondisclosure by the Liquidators in the PWC action, based on Mr Saker's affidavit in support of the application to extend the writ in that action.
51 In the hearing before Allanson J, the Liquidators vigorously opposed those contentions and submitted that there was no basis for any finding of deliberate nondisclosure, and Mr Saker was cross-examined and denied the allegations of nondisclosure. In relation to the allegation concerning the Victorian proceedings, for example, the Liquidators' position was that at the time of the applications to extend the writs there was no inconsistency between the position taken by them in defending the Victorian proceedings and the position taken by them in the PWC action and the Directors action.
52 Given that Allanson J has not yet published his decision, the Liquidators decided that the preferable course was to place all material relevant to the disclosure issue before this Court for the purposes of the Application. Accordingly, Mr Orzel attached to his affidavit of 24 July 2014 some 39 documents, comprising approximately 3,600 pages. It appears (although Mr Orzel does not say so) that these documents comprise all of material filed in the PWC proceedings and the Directors action pertaining to the disclosure issue, together with a copy of the transcript of the hearing before Allanson J.
53 Save in one respect (which I deal with below at [67]) it is not necessary to say more about the disclosure issue.
(c) Principles in relation to s 511 of the Act
54 The liquidator of a company in voluntary liquidation may apply to the Court to determine any question arising in the winding up of the company or to exercise any or all of the powers that the Court might exercise if the company were being wound up by the Court.12 If satisfied that the determination of the question or the exercise of power will be just and beneficial, the Court may accede wholly or partially to any such application on such terms and conditions as it thinks fit or may make such other order on the application as it thinks just.13
55 The principles in relation to such applications are well established.
56 The words 'just and beneficial' in s 511 indicate that the court has a discretion as to whether making an order will be of advantage in the liquidation.14 In deciding whether to give the direction, the court must have regard to the liquidation process as a whole and not to the interests of any one particular party.15
57 A determination under s 511 cannot, of itself, bind anyone except the liquidator and the persons entitled to participate under the winding up. The effect of a direction or order under s 511 is not to determine rights and liabilities arising out of particular transactions, but to sanction a course of conduct proposed by a liquidator so as to protect the liquidator from liability for any alleged breach of duty as liquidator, to a creditor or to the company, in respect of anything done by the liquidator in accordance with the direction or order.16 (However, that does not mean that the court cannot determine questions involving substantive rights in an application under s 511, provided that all necessary parties are joined.17)
58 The protection afforded the liquidator by virtue of a direction under s 511 is conditional upon the liquidator making 'full and fair disclosure of all relevant facts and circumstances before the court'18 at the time the order is made.19
59 The rationale for s 511 is that while a company and its creditors should be left, if possible, to settle their affairs without coming to the Court at all, the liquidator in a voluntary winding up should have a means to access the Court, in the same way as a liquidator in a compulsory winding up may seek the court's direction, whenever any question arises in the course of the winding up.20 In many respects the Court's jurisdiction under s 511 is analogous to, although not precisely the same as, its jurisdiction under s 479(3) of the Act.21 To that end, s 511 confers jurisdiction over subject matters and powers that the court might not otherwise possess.22
60 A direction may be sought under s 511 in respect of any question arising in the course of a winding up, and the section should be interpreted widely to facilitate the liquidator's functions.23 However, a direction will not be given merely because the liquidator has a feeling of apprehension or unease about the business decision and wants reassurance - it is not the Court's role to make what are regarded as commercial decisions for liquidators.24 Consequently, there must be some issue which calls for the exercise of legal judgment so as to warrant its direction - whether that be a legal issue of substance or procedure, or an issue of power, propriety or reasonableness.25 However, those categories are not exhaustive and other special circumstances may exist which warrant the giving of a direction.26
61 A further instance where directions may be given is in the context of a proposed compromise of litigation involving the liquidator.27 Even in such a case, the court will be reluctant to give directions if only commercial considerations are involved, but special circumstances may warrant directions being given.28 Those special circumstances may include where the liquidator is operating in an acrimonious environment in the liquidation,29 and the liquidator's proposed decision risks being subjected to criticism by a particular creditor or creditors as being unreasonable or made in bad faith,30 or where there is a degree of personal risk of litigation31 attached to the liquidator that could negatively affect the winding up process.32 It will suffice if such an attack is in prospect.33 In other words, a s 511 direction may be given to protect the liquidator in circumstances where the compromise could otherwise negatively affect the winding up process. From that perspective, it can be said that the direction would be just and beneficial to advancing the liquidation process as a whole.34
62 In Re The Bell Group Ltd (in liq); Ex parte Woodings as liquidator of the Bell Group (in liq) Hasluck J observed (in the context of an application for directions under s 479(3) of the Act) that the court 'will not interfere or second guess the liquidator's judgment unless there is a lack of good faith, error of law or principle, or real and substantial grounds for doubting the prudence of the liquidator's conduct'.35 Brereton J in Re One.Tel Ltd did not agree with those observations, to the extent that they suggested that the Court would give a direction unless there was a lack of good faith, an error of law or principle, or real and substantial grounds for doubting the prudence of the liquidator's conduct.36 Brereton J took the view that the Court will not make a direction under s 511 unless satisfied that the liquidator's decision is, in all of the circumstances, a 'proper and reasonable' one and that this would usually necessitate consideration of the liquidator's reasons and the process by which the decision has been reached.37 Although it appears that Hasluck J was drawing on observations made in earlier cases in relation to the grant of the Court's approval under s 477(2A) and s 477(2B) of the Act (and their predecessors)38 it is far from clear that the approach ultimately taken by his Honour in Re The Bell Group was different from that taken by Brereton J in Re One.Tel.39
63 In the case of an application under s 511 of the Act, the Court's focus will be on whether the giving of the direction will be just and beneficial (that is, advantageous) in the winding up of the company. Determining whether the direction should be given will necessarily involve a broad consideration of matters including the nature of the proposed course of action about which the direction is sought, the circumstances relevant to that proposed course of action (especially those said to warrant the making of the direction), the reasons for and consequences of that proposed course of action (and in the case of a proposed compromise of litigation, the liquidator's commercial judgment that the proposed settlement should be pursued), and in those cases involving the determination of a legal issue relevant to that decision, the principles relevant to the determination of that issue. All of these matters will be considered for the purpose of determining whether the liquidator would be justified in taking the proposed course of action, within the overall context of the liquidation.
64 Ordinarily the liquidator will be expected to obtain legal advice appropriate to the nature and value of the claims the subject of a proposed compromise.40 However, the absence of such advice is not of itself a reason to refuse to grant a direction.41
65 The Court's directions are usually prospective, and are concerned with affording protection to the liquidator in connection with future action, not ratifying action already taken by the liquidator.42 Directions under s 511 are conventionally expressed in terms that 'the liquidator would be justified' in adopting a particular course of action. Having said that, particularly in cases where directions are sought in respect of settlement agreements subject to conditions precedent, the distinction between what was done in entering the agreement and before satisfaction of the condition, and what will be done in performing it, may not always be neatly compartmentalised into past and future.43
(d) Why a direction should be given pursuant to s 511 of the Act
66 This case does not neatly fall within the categories of case in which directions under s 511 have commonly been sought. Even though it involves a compromise of litigation its circumstances are not entirely on par with those in the cases in which directions have been given in relation to compromises. Nevertheless, having regard to all of the circumstances I am satisfied that the direction under s 511 of the Act which is sought by the Liquidators should be given in this case. I have reached that view for the following reasons.
67 First, the evidence before the Court illustrates that the liquidation has involved considerable litigation. That of itself is not uncommon and of itself would not be a reason for making a direction under s 511. However, two aspects of the surrounding circumstances illustrate why the Liquidators may be concerned to obtain the Court's direction and so avoid the risk (even a small risk) of litigation arising from their entry into the Settlement Deed. The first of those circumstances is that the allegations recently made against Mr Saker, and the Liquidators in the Directors action, indicate that the Liquidators are now operating in an environment where their own conduct of the litigation they are conducting in the course of the liquidation is the subject of very serious allegations. The fact that that challenge is made by the former directors of GSMAL adds to the impression that those proceedings involve some acrimony.
68 More significant is the fact that the proposed settlement does not cover all of the persons who may have a claim against GSMAL arising from Project Transform. However, the payment of the Settlement Sum under the Settlement Deed, together with the settlement of the Victorian proceedings (if it is approved), is likely to exhaust the funds remaining under the PI Excess Policies and GSMAL clearly does not have any other funds available to defend litigation of this kind, much less to reach a settlement with any other potential claimants. Although there is D and O Insurance, its application to a claim arising from the conduct of GSMAL and its officers in relation to Project Transform has not been ascertained. In settling the WA Proceedings in these circumstances, there is a risk that other claimants in the future might question the propriety of the Liquidators' decision to enter into the Settlement Deed.
69 The risk of future criticism or even of litigation in respect of the Liquidators' entry into the Settlement Deed may not be significant. Nevertheless, the making of a direction in relation to the proposed settlement will avoid that risk of further litigation for the Liquidators in relation to one part of the liquidation, and in that sense would be advantageous in the liquidation as a whole.
70 Secondly, there is nothing to suggest that the conduct of the Liquidators in reaching the settlement of the WA Proceedings has been other than proper and reasonable having regard to all of the circumstances. Although the Liquidators did not provide the Court with a copy of any legal advice in relation to the proposed settlement, that is not fatal to the Application. Nor is it entirely surprising. The WA Proceedings are at a very early stage. Little preparation for trial has been done. Discovery has not been completed in all of the actions, and lay and expert evidence has not yet been prepared for trial. In those circumstances, any legal opinion on the prospects of the litigation would necessarily be highly qualified.
71 More to the point for present purposes is the fact that the settlement has been negotiated over some time and by parties who, with the benefit of legal representation, can be considered 'commercially astute and informed'.44 Were the WA Proceedings to go to trial the litigation would undoubtedly be complex, the trial would be likely to be lengthy, and the resolution of the litigation (including possible appeals) would in all likelihood take a considerable amount of time, having regard to the number of Claimants, and the nature of the issues. The proposed settlement is supported by the Claimants, who represent a significant group of GSMAL's creditors. Given that there is insurance available to cover the Settlement Sum which has been agreed, the proposed settlement will have no bearing on the position of other creditors (apart, possibly, from other potential claimants who might at some future stage commence proceedings arising from Project Transform).
72 Thirdly, in bringing the Application the Liquidators do not ask the Court to give a direction on what is an appropriate and reasonable commercial decision. They have already made that decision and it is reflected in the Settlement Deed which has been negotiated. The purpose of the Application is clearly to seek the protection afforded by a direction, in light of the circumstances surrounding the liquidation which the Liquidators consider give rise to a risk of further litigation which would jeopardise their ability to expeditiously and equitably wind up GSMAL.
73 Finally, the direction sought is confined to future action and is expressed in appropriate terms.
74 I am persuaded that the making of the direction under s 511 of the Act, and the consequent protection of the Liquidators which it will afford, will be just and beneficial in so far as it will be of advantage in the liquidation.
(e) Principles in relation to s 477(2B) of the Act
75 Section 477(2B) of the Act provides that a liquidator may not, without the approval of the Court, enter into an agreement on the company's behalf if the term of the agreement may end, or obligations of a party to that agreement may, according to its terms, be discharged by performance, more than three months after the agreement is entered into. Section 477(2B) applies to the liquidator in a voluntary winding up by virtue of the operation of s 506(1A) of the Act.
76 The Court's powers under s 477(2A) and s 477(2B) of the Act are concerned with ensuring that the court exercises some oversight of a liquidator's actions. One of the purposes of those powers is to serve the interests of those concerned in the winding up, namely the creditors. Another purpose is to do whatever needs to be done for the proper realisation of the assets of the company. While the considerations arising under both provisions are similar, s 477(2B) is concerned primarily to ensure that the timing of contractual obligations does not undermine the general objective that the winding up of a company will proceed as expeditiously as the circumstances permit.45 In an application under s 477(2B) of the Act, the primary consideration will be the impact of the agreement on the duration of the liquidation, and whether that is, in all of the circumstances, reasonable in the interests of the administration of the company.46
77 The Court's approval is not an endorsement of the proposed agreement but merely constitutes permission for the liquidator to exercise his or her own commercial judgment,47 and the grant of that approval alone does not exonerate a liquidator from personal liability for the decision to enter into the agreement.48
78 Justice Gordon set out the principles in relation to the exercise of the Court's power under s 477(2B) of the Act in Re Newtronics Pty Ltd; Ex parte Stewart.49 Leaving to one side additional considerations with respect to litigation funding agreements (which are not presently relevant), the general principles that her Honour identified were as follows. The court does not simply 'rubber stamp' whatever is put forward by a liquidator. On the other hand, the role of the court is not to conduct a review de novo of the decision, or to develop some alternative proposal which might seem preferable. Rather, the court's role is to review the liquidator's proposal, paying due regard to his or her commercial judgment and knowledge of the circumstances, and satisfying itself that the agreement is a proper exercise of power, that there is no error of law or ground for suspecting bad faith or impropriety, that its terms are clear, and weighing up whether there is any good reason to intervene in terms of the expeditious and beneficial administration of the winding up.50
(f) Why approval should be granted pursuant to s 477(2B) of the Act
79 I am persuaded that approval should be given pursuant to s 477(2B) of the Act. The terms of the Settlement Deed which will be discharged more than three months after it is entered into will not impede the expeditious conduct of the liquidation. For the reasons I have given above in relation to the s 511 direction, the Liquidators have clearly exercised their considered commercial judgment in forming the view that entry into the Settlement Deed is a proper and reasonable course in the liquidation, there is nothing to suggest bad faith or impropriety on the Liquidators' part in reaching the settlement, and entry into the Settlement Deed will resolve the WA Proceedings which represent a significant part of the liquidation.
(g) The costs of the Application
80 The Liquidators also seek an order that the costs of the Application be costs in the winding up of GSMAL. I am satisfied that the Application was properly brought and that the order sought should be made.
Orders
81 The orders sought in the Application will be made.
1 CIV 1647 of 2010 and CIV 1648 of 2010.
2 CIV 2126 of 2011, CIV 2127 of 2011, CIV 2130 of 2011, CIV 2184 of 2011, CIV 2185 of 2011 and CIV 2186 of 2011.
3 CIV 1925 of 2014.
4 See the discussion of the Victorian proceedings in Chubb Insurance Company of Australia Ltd v Moore [2013] NSWCA 212; (2013) 302 ALR 101 (Emmett JA & Ball J, Bathurst CJ, Beazley P & MacFarlan JA agreeing).
5 CIV 2611 of 2012.
6 CIV 2635 of 2012.
7Jones, Saker, Weaver and Stewart (liquidators), in the matter of Great Southern Ltd (in liq) [2012] FCA 1072 [49] - [50] (Gilmour J); Re The Bell Group Ltd (in liq); Ex parte Woodings (as liquidator of the Bell Group Ltd (in liq)) [2009] WASC 235 [58] (Hasluck J).
8Re 7 Steel Distribution Pty Ltd (in liq) [2013] NSWSC 669 [20] (Black J); Dean-Willcocks v Soluble Solutions Hydroponics Pty Ltd (1997) 24 ACSR 79, 81 (Young J).
9 See, for example, Re 7 Steel Distribution Pty Ltd (in liq) [2013] NSWSC 669 [21], [24] (Black J).
10 See, for example, Hall v Hall [2007] WASC 198 [30] - [34] (Newnes J) and the cases there cited.
11Re Ansett Australia Ltd and Korda (No 3) [2002] FCA 90; (2002) 115 FCR 409 [44] (Goldberg J); Handberg (in his capacity as liquidator of S&D International Pty Ltd) (in liq) v MIG Property Services Pty Ltd [2010] VSC 336; (2010) 79 ACSR 373 [8] (Warren CJ).
12Corporations Act 2001 (WA) s 511(1).
13Corporations Act 2001 (WA) s 511(2).
14Dean-Willcocks v Soluble Solution Hydroponics Pty Ltd (1997) 42 NSWLR 209, 212; Handberg (in his capacity as liquidator of S&D International Pty Ltd) (in liq) v MIG Property Services Pty Ltd [2010] VSC 336; (2010) 79 ACSR 373 [7] (Warren CJ); Re Purchas (as Liquidator of Astarra Asset Management Pty Ltd (in liq)) [2011] NSWSC 91 [34] (Ward J).
15Handberg (in his capacity as liquidator of S&D International Pty Ltd) (in liq) v MIG Property Services Pty Ltd [2010] VSC 336; (2010) 79 ACSR 373 [23] (Warren CJ).
16Re GB Nathan & Co Pty Ltd (in liq) (1991) 24 NSWLR 674, 679 - 680 (McLelland J); Re Ansett Australia Ltd and Korda (No 3) [2002] FCA 90; (2002) 115 FCR 409 [44] (Goldberg J); Anglican Insurance Ltd [2008] NSWSC 41 [38] (Barrett J); Handberg (in his capacity as liquidator of S&D International Pty Ltd (in liq) v MIG Property Services Pty Ltd [2010] VSC 336; (2010) 79 ACSR 373 [7] (Warren CJ); Re The Bell Group Ltd (in liq); Ex parte Woodings (as liquidator of the Bell Group Ltd (in liq)) [2009] WASC 235 [47] (Hasluck J).
17Judge (as liquidator of Citystyle Enterprises Pty Ltd v Trifield Corporation Pty Ltd [2011] WASC 122 [29] - [31], [34] and see the authorities discussed therein (Corboy J).
18Re Ansett Australia Ltd and Korda (No 3) [2002] FCA 90; (2002) 115 FCR 409 [44] (Goldberg J).
19Handberg (in his capacity as liquidator of S&D International Pty Ltd) (in liq) v MIG Property Services Pty Ltd [2010] VSC 336; (2010) 79 ACSR 373 [8] (Warren CJ).
20Re County Marine Insurance Co; Rance's Case (1870) LR 6 Ch App 104, 115 (James LJ) cited with approval in Handberg (in his capacity as liquidator of S&D International Pty Ltd) (in liq) v MIG Property Services Pty Ltd [2010] VSC 336; (2010) 79 ACSR 373 [14] (Warren CJ).
21Dean-Willcocks v Soluble Solution Hydroponics Pty Ltd (1997) 42 NSWLR 209, 212; Anglican Insurance Ltd [2008] NSWSC 41 [38] (Barrett J); Judge (as liquidator of Citystyle Enterprises Pty Ltd) v Trifield Corporation Pty Ltd [2011] WASC 122 [27] - [31] (Corboy J); Re One.Tel Ltd [2014] NSWSC 457; (2014) 99 ACSR 247 [32] (Brereton J).
22Judge (as liquidator of Citystyle Enterprises Pty Ltd) v Trifield Corporation Pty Ltd [2011] WASC 122 [33] (Corboy J).
23Re One.Tel Ltd [2014] NSWSC 457; (2014) 99 ACSR 247 [33] (Brereton J).
24Re One.Tel Ltd [2014] NSWSC 457; (2014) 99 ACSR 247 [33] (Brereton J); Re 7 Steel Distribution Pty Ltd (in liq) [2013] NSWSC 669 [22] (Black J); Handberg (in his capacity as liquidator of S&D International Pty Ltd) (in liq) v MIG Property Services Pty Ltd [2010] VSC 336; (2010) 79 ACSR 373 [19] (Warren CJ); Re Ansett Australia Ltd and Korda (No 3) [2002] FCA 90; (2002) 115 FCR 409 [65] (Goldberg J).
25Re Ansett Australia Ltd and Korda (No 3) [2002] FCA 90; (2002) 115 FCR 409 [65] (Goldberg J); Re The Bell Group Ltd (in liq); Ex parte Woodings as liquidator of the Bell Group Ltd (in liq) [2009] WASC 235 [54] (Hasluck J); Re One.Tel Ltd [2014] NSWSC 457; (2014) 99 ACSR 247 [33] (Brereton J).
26Re One.Tel Ltd [2014] NSWSC 457; (2014) 99 ACSR 247 [34] (Brereton J).
27Re Spedley Securities Ltd (1992) 9 ACSR 83, 85 (Giles J).
28Re Addstone Pty Ltd (1997) 25 ACSR 357, 363 (Mansfield J).
29Handberg (in his capacity as liquidator of S&D International Pty Ltd) (in liq) v MIG Property Services Pty Ltd [2010] VSC 336; (2010) 79 ACSR 373 [20] - [22].
30Re Addstone Pty Ltd (1997) 25 ACSR 357, 363 (Mansfield J).
31Handberg (in his capacity as liquidator of S&D International Pty Ltd) (in liq) v MIG Property Services Pty Ltd [2012] VSC 551; (2012) 92 ACSR 38 [50] - [52], [92] (Robson J).
32Handberg (in his capacity as liquidator of S&D) International Pty Ltd (in liq))v MIG Property Services Pty Ltd [2010] VSC 336; (2010) 79 ACSR 373 [19] (Warren CJ); see also Bauhaus Pyrmont Pty Ltd (in liq) [2007] NSWSC 936; (2007) 64 ACSR 646 (Bergin J).
33Re 7 Steel Distribution Pty Ltd (in liq) [2013] NSWSC 669 [20] (Black J).
34Handberg (in his capacity as liquidator of S&D International Pty Ltd (in liq)) v MIG Property Services Pty Ltd [2010] VSC 336; (2010) 79 ACSR 373 [17], [19] (Warren CJ).
35Re The Bell Group Ltd (in liq); Ex parte Woodings as Liquidator of the Bell Group Ltd (in liq) [2009] WASC 235 [47] (Hasluck J).
36Re One.Tel Ltd [2014] NSWSC 457; (2014) 99 ACSR 247 [36] (Brereton J).
37Re One.Tel Ltd [2014] NSWSC 457; (2014) 99 ACSR 247 [35] - [36] (Brereton J).
38 See Re Spedley Securities Ltd (1992) 9 ACSR 83, 85 (Giles J), citing Re Mineral Securities (Australia) Ltd [1973] 2 NSWLR 207, 231 - 232.
39 Cf Re The Bell Group Ltd (in liq); Ex parte Woodings as Liquidator of the Bell Group Ltd (in liq) [2009] WASC 235 [59] (Hasluck J).
40Re Spedley Securities Ltd (1992) 9 ACSR 83, 86 (Giles J); Handberg v MIG Property Services Pty Ltd (2012) 92 ACSR 38 [78] (Robson J).
41Handberg (in his capacity as liquidator of S&D International Pty Ltd (in liq)) v MIG Property Services Pty Ltd [2012] VSC 551; (2012) 92 ACSR 38 [78] - [79] (Robson J).
42Re One.Tel Ltd [2014] NSWSC 457; (2014) 99 ACSR 247 [56], [60], [61] (Brereton J); Re GB Nathan and Co Pty Ltd (1991) 24 NSWLR 674, 678 (McLellan J).
43Re Bell Group Ltd (In Liq); Ex parte Antony Leslie John Woodings as Liquidator of the Bell Group Ltd (in liq) [2013] WASC 409; (2013) ACSR 117 [43] (Allanson J); Re One.Tel Ltd [2014] NSWSC 457; (2014) 99 ACSR 247 [56], [60] (Brereton J).
44Re One.Tel Ltd [2014] NSWSC 457; (2014) 99 ACSR 247 [45] (Brereton J).
45Re HIH Insurance Ltd [2004] NSWSC 5 [15] (Barrett J) and the cases there cited.
46Re Opel Networks Pty Ltd [2013] NSWSC 1245 [7] (Brereton J); Re One.Tel Ltd [2014] NSWSC 457; (2014) 99 ACSR 247 [30] (Brereton J).
47Re The Bell Group Ltd (in liq); Ex parte Woodings as Liquidator of the Bell Group Ltd (in liq) [2009] WASC 235 [58] (Hasluck J).
48Re One.Tel Ltd [2014] NSWSC 457; (2014) 99 ACSR 247 [26] (Brereton J).
49Re Newtronics Pty Ltd; Ex parte Stewart [2007] FCA 1375 [26] (Gordon J).
50Re Newtronics Pty Ltd; Ex parte Stewart [2007] FCA 1375 [26] (Gordon J).
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