Scott v Olde

Case [2025] FCA 1014


FEDERAL COURT OF AUSTRALIA

Scott v Olde [2025] FCA 1014  

File number: NSD 810 of 2025
Judgment of: LEE J
Date of judgment: 22 August 2025
Catchwords: CORPORATIONS – where the plaintiff seeks relief under ss 445D and 447A of the Corporations Act 2001 (Cth) terminating a deed of company arrangement (DOCA) and the administration of the third defendant and orders that the third defendant be wound up and a liquidator appointed – where the central pleaded allegation is one of alleged “corporate malfeasance” – where the plaintiff submits that the Court’s discretion to terminate the DOCA arises on at least one of six grounds – where the relevant law pertaining to each of the six grounds considered – where each ground addressed in seriatim – where each of the grounds advanced must fail – application dismissed with costs – orders made
Legislation:

Corporations Act 2001 (Cth) Pt 5.3A, ss 237(1), 445D, 447A

Federal Court of Australia Act 1976 (Cth) s 43

Insolvency Practice Rules (Corporations) 2016 (Cth) rr 75–85(4)(d), 75–100(4)

Cases cited:

ASIC v Midland Highway Pty Ltd [2015] FCA 1360; (2015) 110 ACSR 203

Australasian Memory Pty Ltd v Brien [2000] HCA 30; (2000) 200 CLR 270

Australian Securities and Investments Commission v Storm Financial Ltd (recs and mgrs apptd) (admin apptd) [2009] FCA 269; (2009) 71 ACSR 81

Bacnet Pty Ltd v Lift Capital Partners Pty Ltd (in liq) [2010] FCAFC 36; (2010) 183 FCR 384

Bidald Consulting Pty Ltd v Miles Special Builders Pty Ltd [2005] NSWSC 1235; (2005) 226 ALR 510

Britax Childcare Pty Ltd, in the matter of Infa Products Pty Ltd v Infa Products Pty Ltd (Administrators Appointed) [2016] FCA 848; (2016) 115 ASCR 322

Canstruct Pty Ltd v Project Sea Dragon Pty Ltd (Subject to a Deed of Company Arrangement (No 4) [2024] FCA 112; (2024) 172 ACSR 73

Cresvale Far East Ltd (In Liq) v Cresvale Securities Ltd [2001] NSWSC 89; (2001) 37 ACSR 394

Decon Australia Pty Ltd v TFM Epping Land Pty Ltd (No 2) [2021] FCA 32

Decon Australia Pty Ltd v TFM Epping Land Pty Ltd [2022] FCAFC 54

Deputy Commissioner of Taxation v TMPL Pty Ltd (subject to a deed of company arrangement) (No 3) [2011] FCA 1403; (2011) 289 ALR 69

El-Saafin v Franek (No 3) [2019] VSC 155; (2019) 143 ACSR 452

Fleet Broadband Holdings Pty Ltd v Paradox Digital Pty Ltd [2005] WASC 261; (2005) 228 ALR 598

Guo v Song; In the matter of SG Capricorn Investments Pty Ltd (subject to deed of company arrangement); and New Mangrove Pty Ltd (subject to a deed of company arrangement) [2018] NSWSC 12

In the matter of Kentel Australasia Pty Limited [2024] NSWSC 1352

Park, In the matter of IG Power (Callide) Pty Ltd (Administrators Appointed) (No 7) [2025] FCA 808

Project Sea Dragon Pty Ltd (Subject to a Deed of Company Arrangement) v Canstruct Pty Ltd [2024] FCAFC 141; (2024) 305 FCR…

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AGLC
Scott v Olde [2025] FCA 1014
Case
[2025] FCA 1014
Decision Date

CaseChat Overview and Summary

In Scott v Olde, the plaintiff sought to terminate a deed of company arrangement (DOCA) under sections 445D and 447A of the Corporations Act 2001 (Cth) and order the winding up of the third defendant, with the appointment of a liquidator. The central allegation was one of "corporate malfeasance." The plaintiff argued that the Court’s discretion to terminate the DOCA arose on at least one of six grounds. The court was tasked with considering the relevant law pertaining to each of these grounds and addressing each ground in turn.

The court found that the plaintiff's application failed on all counts. The plaintiff's submissions that the Court's discretion to terminate the DOCA arose on one of the six grounds were rejected. The court found that the Administrators’ decision was not in error and that proceeding otherwise than admitting the proofs of debt challenged by Mr Scott was appropriate. The narrower case for setting aside the DOCA also failed. The court granted leave for the Kennedy Parties to be joined as parties due to the nature of the allegations made. The court found that the application did not warrant a special costs order and that costs should be payable on the ordinary basis.

In light of the above findings, the court dismissed the amended originating application with costs. The administrator was granted leave to withdraw the undertaking referred to in the orders of Justice Moore dated 6 June 2025. The court acknowledged the efficient conduct of the proceeding by counsel and all parties under tight deadlines.

Orders

Orders of the court

1. The amended originating application be dismissed with costs.

2. The administrator be granted leave to withdraw the undertaking referred to in the orders of Justice Moore dated 6 June 2025.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Accordingly, I am not satisfied that there is some error that has been shown in any aspect of the Administrators’ decision. Even approaching this matter on a de novo basis without the need to demonstrate error, I do not think it has been shown that it was appropriate to proceed otherwise than admitting the proofs of debt challenged by Mr Scott. The Narrower Case for setting aside the DOCA also fails. H ORDERS AND CONCLUSION In the circumstances identified above, the application must be dismissed with costs. Given the nature of the allegations made, I granted leave for the Kennedy Parties to be joined as parties. Obviously enough, the costs order extends to all defendants of the proceedings. The Administrators have, however, sought a special costs order. Section 43 of the Federal Court of Australia Act 1976 (Cth) gives the Court a wide discretion as to costs. The speed by which these transactions occurred, and the net result of the proceedings agitated by Mr Scott at no cost to KAPL being determined, has obviously led to some real suspicion held by Mr Scott as to what has occurred. When I first saw this case, without understanding the detail of the financial transactions, it was fair to say that it caused me some initial concerns. Those concerns dissipated when I was taken, during the hearing, to documents demonstrating the true financial position of KAPL and the countervailing benefits and burdens put in place by the DOCA. Although I do not consider that the application brought by Mr Scott has merit when those transactions are properly analysed, it was not a category of case which seems to me to call for the power to make some form of special costs order, and costs will be payable on the ordinary basis. This matter came on with great dispatch. I am grateful to counsel and all the parties for the efficient way the proceeding was conducted and the provision under tight deadlines of court books and useful submissions.

Ratio Decidendi

Legal Principle Established

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