Singh v Sun Bred Power Pty Ltd (In Liquidation)
[2025] WASC 283
•21 JULY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: SINGH -v- SUN BRED POWER PTY LTD (IN LIQUIDATION) [2025] WASC 283
CORAM: MUSIKANTH J
HEARD: 17 FEBRUARY 2025
FINAL AFFIDAVIT
FILED: 1 JULY 2025
DELIVERED : 21 JULY 2025
FILE NO/S: CIV 1675 of 2022
BETWEEN: DILAWAR SINGH
Plaintiff
AND
SUN BRED POWER PTY LTD (ACN 604 987 715) (IN LIQUIDATION)
Defendant
Catchwords:
CORPORATIONS - Company in liquidation - Members' voluntary winding up - Application by liquidators for stay of proceedings - Where relief sought under s 90-15 of the Insolvency Practice Schedule
PRACTICE AND PROCEDURE - Stay of proceedings - Abuse of process - Inherent jurisdiction - Whether cause of action has any prospects of resulting in relief being granted - Turns on own facts
Legislation:
Corporations Act 2001 (Cth)
Supreme Court Act 1935 (WA)
Result:
Permanent stay granted
Representation:
Counsel:
| Plaintiff | : | In person |
| Defendant | : | Mr J L Hurley |
Solicitors:
| Plaintiff | : | In person |
| Defendant | : | Jackson McDonald |
Case(s) referred to in decision(s):
Acton Engineering Pty Ltd v Campbell and Others [1991] FCA 469; (1991) 31 FCR 1 (1991) 103 ALR 437
AonRisk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Armstrong v McIntosh [No 2] [2019] WASC 379
Australian Securities and Investments Commission v Jones [2023] WASCA 130
Awada v Linknarf Ltd (in liq) [2002] NSWSC 873; (2002) 55 NSWLR 745; (2002) 20 ACLC 1669
Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256
Brocx v Hughes [2010] WASCA 57
Catto v Hampton Australia Ltd (in liq) (1998) 12 ACLC 1688; (1998) 29 ACSR 225
Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No 5) (1997) 18 WAR 334
Commissioner of Taxation v Esso Australia Resources Pty Ltd [2024] FCAFC 151; (2024) 306 FCR 586
Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237
Frigger v Mervyn Jonathan Kitay as liquidator of Computer Accounting & Tax Pty Ltd [2022] WASC 347
GDK Projects Pty Ltd, Re Umberto Pty Ltd (in liq) v Umberto Pty Ltd (in liq) [2018] FCA 541
Hertz v Industrial Relations Commission of NSW [2006] NSWCA 16
In the matter of the Pindan Group [No 7] [2024] WASC 371
Kimberley Diamonds Ltd v Arnautovic (2017) 252 FCR 244; [2017] FCAFC 91; (2006) 154 IR 265
Latimer v Cutwood Panels Pty Ltd [2012] WASC 408
Law Society of New South Wales v Bruce (1996) 40 NSWLR 77
Moti v The Queen [2011] HCA 50; (2011) 245 CLR 456
Moubarak by his tutor Coorey v Holt [2019] NSWCA 102; (2019) 100 NSWLR 218
One T Development Pty Ltd v Peter Krejci in his capacity as liquidator of ENA Development Pty Ltd [2023] NSWCA 120
Rowe v Stoltze [2013] WASCA 92
Shaw v The Official Trustee in Bankruptcy of the Australian Financial Security Authority (No 3) [2021] FCA 1569
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2021] WASC 170
Strickland (a pseudonym) v Director of Public Prosecutions (Cth) [2018] HCA 53; (2018) 266 CLR 325
UBS AG v Tyne [2018] HCA 45; (2018) 265 CLR 77
Victoria International Container Terminal Ltd v Lunt [2021] HCA 11; (2021) 271 CLR
Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378
Willmot v Queensland [2024] HCA 42; (2024) 98 ALJR 1407
MUSIKANTH J:
The plaintiff (Dr Singh) is a shareholder of the defendant (Sun Bred) and was one of its three founding directors.[1]
[1] Affidavit of Jeremy Joseph Nipps sworn 19 March 2024, Annexure 'JJN-1' (Nipps affidavit).
Sun Bred relevantly carried on business through a subsidiary called Cunderdin Development Pty Ltd (Subsidiary) which was established in 2017 to develop a solar farm in Cunderdin (Solar Farm project).[2]
[2] Affidavit of Dr Dilawar Singh sworn 21 June 2024 (Singh 2024 affidavit), page 3.
On 1 June 2018, Dr Singh resigned as a director of Sun Bred.[3]
[3] Defendant's defence dated 20 March 2023, [3(b)(ii)] and plaintiff's reply dated 2 April 2023, [3(b)(ii)].
On 30 June 2022, Dr Singh commenced this action against Sun Bred by writ of summons claiming amounts:
(a)arising from a loan allegedly advanced by Dr Singh to Sun Bred for developing the Solar Farm project (Loan Claim);
(b)by way of unpaid salary entitlements for work allegedly performed by Dr Singh, as a director of Sun Bred, between March 2013 to March 2018 (Unpaid Salary Claim); and
(c)by way of compensation for the alleged use by Sun Bred of Dr Singh's 'personal credentials, Sun Brilliance Goodwill, Logo, Website, [and] Email address' (Intellectual Property Claim).[4]
[4] Writ of Summons filed 30 June 2022, pages 3 - 4; Amended Statement of Claim filed 12 January 2023, pages 4 ‑ 5, 7.
The total amount sought by Dr Singh, in his amended statement of claim, is $8,498,391.00 '… plus interest beyond 30 June 2022 till the date of [judgment] or other period as [the Court] deems fit'.[5]
[5] Amended Statement of Claim filed 12 January 2023, prayer 1.
On 24 May 2023, Thomas Birch and Jeremy Joseph (partners of Cor Cordis) (Liquidators) were appointed as liquidators of Sun Bred pursuant to a members' voluntary winding up under pt 5.5 of the Corporations Act 2001 (Cth) (Act).[6]
[6] Nipps affidavit, [2], [8], Annexures 'JJN-1' and 'JJN-2'.
The Liquidators seek an order that Dr Singh's action be permanently stayed.
The only question I am to determine is whether to grant such a stay.
Jurisdiction
The Liquidators properly accept Dr Singh does not require leave to 'proceed' with his action as there is no 'automatic' stay provision applicable under the Act.
Unlike s 500(2) which only applies to creditors' voluntary winding-ups,[7] there is, consistent with the position under the old Corporations Law, no comparable stay provision in the Act with respect to members' voluntary windings-up.[8]
[7] Cf. Catto v Hampton Australia Ltd (in liq)(1998) 12 ACLC 1688; (1998) 29 ACSR 225, 228 (Burley J); Awada v Linknarf Ltd (in liq) [2002] NSWSC 873; (2002) 55 NSWLR 745; (2002) 20 ACLC 1669 [17] (Barrett J) and Hertz v Industrial Relations Commission of NSW [2006] NSWCA 16 [3] (Mason P, McColl & Basten JJA).
[8] Acton Engineering Pty Ltd v Campbell and Others [1991] FCA 469; (1991) 31 FCR 1; (1991) 103 ALR 437, 451 [37] (Black CJ, Davies & Lockhart JJ).
Nor does s 471B of the Act apply: Sun Bred is neither being wound up in insolvency nor by the court, and it is not suggested that a provisional liquidator has been appointed.
Nonetheless, the Liquidators say the court has power to stay the action pursuant to:
(a)section 90-15 of the Insolvency Practice Schedule (IPS);[9] and/or
(b)the court's inherent jurisdiction and/or section 16(1)(d)(i) of the Supreme Court Act 1935 (WA).[10]
Section 90-15 of the IPS
[9] Defendant's supplementary submissions filed 11 June 2024 [8].
[10] Defendant's submissions filed 26 April 2024 [34].
Section 90-15 of the IPS reads as follows:
90 - 15 Court may make orders in relation to external administration
Court may make orders
(1)The Court may make such orders as it thinks fit in relation to the external administration of a company.
Orders on own initiative or on application
(2)The Court may exercise the power under subsection (1):
(1)on its own initiative, during proceedings before the Court; or
(2)on application under section 90 - 20.
Examples of orders that may be made
(3)Without limiting subsection (1), those orders may include any one or more of the following:
(1)an order determining any question arising in the external administration of the company;
(2)an order that a person cease to be the external administrator of the company;
(3)an order that another registered liquidator be appointed as the external administrator of the company;
(4)an order in relation to the costs of an action (including court action) taken by the external administrator of the company or another person in relation to the external administration of the company;
(5)an order in relation to any loss that the company has sustained because of a breach of duty by the external administrator;
(6)an order in relation to remuneration, including an order requiring a person to repay to a company, or the creditors of a company, remuneration paid to the person as external administrator of the company.
Matters that may be taken into account
(4)Without limiting the matters which the Court may take into account when making orders, the Court may take into account:
(a)whether the liquidator has faithfully performed, or is faithfully performing, the liquidator's duties; and
(b)whether an action or failure to act by the liquidator is in compliance with this Act and the Insolvency Practice Rules; and
(c)whether an action or failure to act by the liquidator is in compliance with an order of the Court; and
(d)whether the company or any other person has suffered, or is likely to suffer, loss or damage because of an action or failure to act by the liquidator; and
(e)the seriousness of the consequences of any action or failure to act by the liquidator, including the effect of that action or failure to act on public confidence in registered liquidators as a group.
Costs orders
(5)Without limiting subsection (1), an order mentioned in paragraph (3)(d) in relation to the costs of an action may include an order that:
(1)the external administrator or another person is personally liable for some or all of those costs; and
(2)the external administrator or another person is not entitled to be reimbursed by the company or its creditors in relation to some or all of those costs.
Orders to make good loss sustained because of a breach of duty
(6)Without limiting subsection (1), an order mentioned in paragraph (3)(e) in relation to a loss may include an order that:
(1)the external administrator is personally liable to make good some or all of the loss; and
(2)the external administrator is not entitled to be reimbursed by the company or creditors in relation to the amount made good.
Section does not limit Court's powers
(7)This section does not limit the Court's powers under any other provision of this Act, or under any other law.
(Emphasis in s 90‑15(1) added)
Section 90-15(1) of the IPS has been said to afford 'plenary power' to the court to make such orders as it thinks fit in relation to the external administration of the company.[11]
[11] In the matter of the Pindan Group [No 7] [2024] WASC 371 [72] (Strk J).
Indeed, the power in s 90-15(1) has been described as 'unconstrained' in its terms.[12]
[12] GDK Projects Pty Ltd, Re Umberto Pty Ltd (in liq) v Umberto Pty Ltd (in liq) [2018] FCA 541 [33] (Farrell J).
Section 90-15(1) contemplates not only the exercise of judicial discretion but also the determination of substantive rights,[13] encompassing the power conferred by two partial predecessor provisions: s 479(3) and s 511 of the Act.[14]
[13] One T Development Pty Ltd v Peter Krejci in his capacity as liquidator of ENA Development Pty Ltd [2023] NSWCA 120 [33] (Ward P, Leeming & Mitchelmore JJA).
[14] Pindan [No 7] [74]; GDK Projects Pty Ltd, Re Umberto Pty Ltd (in liq) v Umberto Pty Ltd (in liq) [2018] FCA 541 [33].
However, the power afforded by s 90-15(1) is broader than that conferred under its predecessors and should not be construed with limitations not found expressly in its words.[15]
[15] One T Development v Krejci [33].
Ultimately, the question of whether the court has jurisdiction to make orders under the provision depends entirely on 'whether the proposed order relates to the external administration of the [company]'.[16] (emphasis added)
[16] Australian Securities and Investments Commission v Jones [2023] WASCA 130 [306] (Buss P, Mitchell & Beech JJA) citing One T Development v Krejci [33].
The words 'in relation to' have been consistently construed as being of wide and indefinite import.[17]
[17] Frigger v Mervyn Jonathan Kitay as liquidator of Computer Accounting & Tax Pty Ltd [2022] WASC 347 [38] (Allanson J) referring to Giles CJ Comm D in Law Society of New South Wales v Bruce (1996) 40 NSWLR 77, 84. See also Pindan [No 7] [81] (Strk J).
As the Full Court of the Federal Court recently explained by reference to leading High Court authority: [18]
The phrase "in relation to" is used to indicate a degree of connection between two subject matters. … The degree of connection between the two subject matters which satisfies one subject matter being "in relation to" the other depends upon the context, and is, accordingly, ordinarily to be determined by reference to the text, context, legislative purpose and history of the provision and the facts of the case - see generally: Travelex Ltd v Commissioner of Taxation [2010] HCA 33; 241 CLR 510 at [25]; Minister for Home Affairs v DMA18 [2020] HCA 43; 270 CLR 372 at [43]. One subject matter can "relate to" another subject matter even though the first subject matter can be seen also to relate to things apart from the second subject matter - see: DMA18 at [43], citing Project Blue Sky [1998] HCA 28; 194 CLR 355 at [87].
[18] Commissioner of Taxation v Esso Australia Resources Pty Ltd [2024] FCAFC 151; (2024) 306 FCR 586 [52] (Thawley, Jackman & Horan JJ).
Contextually, s 90-15 forms part of div 90 of the IPS which is headed 'Review of the external administration of a company'.
Division 90 is concerned with three matters: reviews by the court (Subdivision B); reviews by 'another' registered liquidator (Subdivision C); and the removal of an external administrator by creditors (Subdivision D).
Section 90-15 of the IPS, more specifically, forms part of Subdivision B which is headed 'Court powers to inquire and make orders' and concerns reviews by the court.
In addition to the topic addressed by s 90-15, the other matters canvassed by the provisions forming part of Subdivision B are:
(1)The court's power to inquire into the external administration of a company on its own initiative during proceedings before the court (s 90-5).
(2)The court's power to make such inquiries on the application of certain categories of persons (s 90-10).
(3)Who may apply for an order under s 90-15 (s 90-20).
(4)The court's power to consider the wishes of creditors or contributories as to matters relating to the external administration, and to direct meetings of creditors or contributories to be convened, held and conducted (s 90-21).
The words 'in relation to', as they appear in s 90-15(1), are to be construed within the context of the above statutory framework.
They are also to be construed in light of the express purpose of the IPS, being a schedule to the Act itself.
In this regard, s 1-1 of the IPS describes its purpose (that is, the purpose of the schedule as a whole) in the following terms:
(1)The object of this Schedule is to ensure that any person registered as a liquidator:
(a) has an appropriate level of expertise; and
(b)behaves ethically; and
(c)maintains sufficient insurance to cover his or her liabilities in practising as a registered liquidator.
(2)The object of this Schedule is also:
(a)to regulate the external administration of companies consistently, unless there is a clear reason to treat a matter that arises in relation to a particular kind of external administration differently; and
(b)to regulate the external administration of companies to give greater control to creditors.
Here, the effect of the order proposed would be to stay proceedings against a company that is subject to external administration.
I do not on the facts consider that such an order could fairly be described as being 'in relation to' the external administration of Sun Bred in the ordinary sense of that phrase.
Whilst Sun Bred happens to be a company under the control of external administrators, the relief sought appears to have no particular connection with the process of external administration itself.
Indeed, the benefit the liquidators seek to derive from a stay (i.e. protection from allegedly futile litigation) would seem little different to that which any other defendant not under external administration might receive in similar circumstances.
Nor is it readily apparent that the proposed stay promotes any of the underlying objects of the IPS itself.
Plainly, a permanent stay would have no connection with any of the matters identified in s 1-1(1) of the IPS. Nor is a connection readily apparent between such an outcome and either of the matters referred to in s 1-1(2).
At least not in the present case.
Regarding s 1-1(2)(a) there is, as noted earlier, no 'automatic' stay of proceedings against a company that is subject to a members' voluntary winding-up.
The absence of any express provision within the Act imposing such a consequence, despite numerous provisions evidently designed to achieve a similar effect in other prescribed circumstances,[19] is in my view consistent with a clear legislative intention to treat members' voluntary winding-up differently, at least to this extent.
[19] Cf. ss 440D and 550(2) of the Act. See also, for example, ss 415D, 434J, 451E, 453S, 454N, 471B, 843A, 884C, 849BB, 1317N and 1335.
Such an approach is perhaps unsurprising given creditors have no involvement in such a winding-up, and the purpose of such a winding‑up being, invariably, to distribute the assets of the company to its members, in accordance with its constitution, and to close the company down to its ultimate deregistration.[20]
[20] M Murray & J Harris, Keay's Insolvency Personal and Corporate Law and Practice (11th edition, Lawbook Co. 2022), [11.10] page 466.
As for s 1-1(2)(b) of the IPS, it is common ground that Dr Singh is Sun Bred's only creditor.
It is thus difficult to see how the relief sought by the Liquidators might meaningfully advance the object reflected in that provision too.
Having regard to the matters of text, context and purpose to which I have referred, and on the facts of this matter, I do not consider there to be a sufficient 'connection' between the stay order sought by the Liquidators and the external administration of Sun Bred to enliven the court's power under s 90-15(1) of the IPS to grant such an order.
Given this conclusion, it is unnecessary for me to decide whether, as the Liquidators submit, the factors expressed by Beech J in Latimer v Cutwood Panels Pty Ltd[21] in the context of an 'automatic' stay provision would be of analogous application here.
Inherent and statutory jurisdiction
[21] Latimer v Cutwood Panels Pty Ltd [2012] WASC 408 [4] - [14] (Beech J).
Despite my conclusion that the court's power under s 90-15(1) of the IPS does not extend to a power to stay Dr Singh's action against Sun Bred, the court nonetheless retains such a power pursuant to its inherent jurisdiction to control its own processes[22] and/or s 16(1)(d) of the Supreme Court Act 1935 (WA).[23]
[22] Cf.Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2021] WASC 170 [71], [83] - [84] (Quinlan CJ) citing Victoria International Container Terminal Ltd v Lunt [2021] HCA 11; (2021) 271 CLR 132 [18] - [19]; Strickland (a pseudonym) v Director of Public Prosecutions (Cth) [2018] HCA 53; (2018) 266 CLR 325 [113] (Gageler CJ); Moti v The Queen [2011] HCA 50; (2011) 245 CLR 456, 464 [11]; Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237, 243 [14]; Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256, 265 - 266 [10]; Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 392 - 393 (Per Mason CJ, Deane & Dawson JJ).
[23] Cf.Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No 5) (1997) 18 WAR 334; 340 - 343 (Per Franklyn, Owen & Parker JJ).
Recently in Willmot v Queensland,[24] the plurality of the High Court cited with approval a convenient summary, by Bell P, of the principles relating to a permanent stay of proceedings.[25]
[24] Willmot v Queensland [2024] HCA 42; (2024) 98 ALJR 1407.
[25] Willmot v Queensland [15] (Gageler CJ, Gordon, Jagot & Beech-Jones JJ).
His Honour's summary, based on a 'brace of decisions of the High Court' which had to a greater or lesser extent considered the inherent jurisdiction of superior courts to stay proceedings for abuse of process, was as follows:
(1)The onus of proving that a permanent stay of proceedings should be granted lies squarely on a defendant.
(2)A permanent stay should only be ordered in exceptional circumstances.
(3)A permanent stay should be granted when the interests of the administration of justice so demand.
(4)The categories of cases in which a permanent stay may be ordered are not closed.
(5)One category of case where a permanent stay may be ordered is where the proceedings or their continuance would be vexatious or oppressive.
(6)The continuation of proceedings may be oppressive if that is their objective effect.
(7)Proceedings may be oppressive where their effect is 'seriously and unfairly burdensome, prejudicial or damaging'.
(8)Proceedings may be stayed on a permanent basis where their continuation would be manifestly unfair to a party.
(9)Proceedings may be stayed on a permanent basis where their continuation would bring the administration of justice into disrepute amongst right-thinking people.[26]
[26] Moubarak by his tutor Coorey v Holt [2019] NSWCA 102; (2019) 100 NSWLR 218 [71] (Bell P, Leeming JA & Emmett AJA agreeing). Citations omitted.
As Bell P had earlier observed, '[a]buse of process … is itself a concept that may manifest itself in numerous forms, is but one circumstance where the interests of the administration of justice will warrant the grant of a permanent stay of proceedings'.[27]
[27] Moubarak by his tutor Coorey v Holt [70].
In determining whether the bringing or continuance of proceedings is an abuse of process, the court must consider the procedural law administered by the court whose processes are engaged.[28]
[28] UBS AG v Tyne [2018] HCA 45; (2018) 265 CLR 77 [34] (Kiefel CJ, Bell & Keane JJ); Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 [65] (Gleeson CJ, Gummow, Hayne & Crennan JJ).
In this court, the relevant procedural law includes O 1 r 4B of the Rules of the Supreme Court 1971 (WA) (Rules).[29]
[29] Armstrong v McIntosh [No 2] [2019] WASC 379 (Le Miere J).
Order 1 r 4B promotes a system of positive case flow and is concerned with the just, quick, and efficient resolution of litigation.
It places the onus on the court to manage and supervise proceedings, not only to reduce the cost and time involved for the parties, but also to 'maximise the efficient use of available judicial and administrative resources' at its disposal.
In taking provisions such as O 1 r 4B into account in determining whether the bringing or continuance of proceedings is an abuse of process, the court must consider not only the interests of the parties to the dispute but also the interests of the wider public.[30]
[30] Cf. UBS v Tyne [38] - [42] (Kiefel CJ, Bell & Keane JJ).
Relevantly, those interests include the proper and efficient use of the scarce public resources of the court.[31]
[31] Rowe v Stoltze [2013] WASCA 92 [51] (Newnes JA, Pullin & Murphy JJA agreeing) citing Brocx v Hughes [2010] WASCA 57 [96]; Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175.
As Le Miere J noted in Armstrong v McIntosh [No 2]:[32]
116.The court has inherent jurisdiction or power to stay proceedings for abuse of process. The High Court has repeated that the categories of abuse of process are not closed. In Ghosh v Miller (No 2), Rothman J said that the concept of abuse of process includes pursuing proceedings for which there is no real prospect of those proceedings resulting in a remedy of substance which involve unjustifiable expense or use of judicial resources.
117. Rules of court may be influenced by, and restate, the characteristics of the inherent power to stay for abuse of process. RSC O 1 r 4B(1)(e) provides that the court will manage matters in the court in accordance with a system of positive case flow management with the object of ensuring the procedure applicable is proportionate to the value, importance and complexity of the subject matter in dispute. That rule is relevant to the exercise of the court's inherent power to stay for abuse of process.[33]
(Emphasis added)
[32] Armstrong v McIntosh [No 2] [116] - [117].
[33] Citations omitted.
Liquidators' position
Reduced to its essence, the Liquidators' argument in support of a permanent stay is to the following effect:
(1)Dr Singh's claims have no real substance.
(2)The likely outcome of the action continuing is that the Liquidators will, at some point before judgment, form the view that Sun Bred is insolvent.
(3)The liquidation of Sun Bred will then convert into a liquidation in insolvency, and the proceedings will then be automatically stayed.
(4)Even if Dr Singh were wholly successful in his action, Sun Bred will have insufficient funds to pay him any more than approximately $71,782.01[34] in circumstances where:
(a)the sums claimed by Dr Singh vastly exceed that amount; and
(b)the Liquidators have already accepted Dr Singh has a provable debt against Sun Bred of $160,000;[35] being an amount which would be paid to Dr Singh relatively immediately 'followed by a payment to the shareholders of [Sun Bred] including [Dr Singh]' if the proceedings were to be stayed 'unless an intervening issue arises'.[36]
(5)In the circumstances, continuation of the proceedings is manifestly unfair and would bring the administration of justice into disrepute.
[34] Cf. Affidavit of Mark Wai Tek Woolard affirmed 1 July 2025 (Woolard affidavit) [6] - [10].
[35] Cf. Nipps affidavit, [23], [49] and [56], see paragraph [72] below.
[36] Nipps affidavit [56].
Merits of the action
Both as at the date of his writ, 30 June 2022, and when the matter was argued, 17 February 2025, Dr Singh claimed a total sum of $8,498,391 from Sun Bred comprised as follows:
(1)A sum of $1,575,734 for the Loan Claim ($160,000 plus accrued interest of 4.15% per month plus a 50% bonus).
(2)A sum of $3,436,387 for the Unpaid Salary Claim (accumulated unpaid salary of $356,055 plus 4.15% interest per month plus an unpaid 9.5% superannuation guarantee plus 10% interest per year on the superannuation guarantee).
(3)A sum of $3,486,270 for the Intellectual Property Claim (being $1,000,000 plus 4.15% interest per month).[37]
[37] Indorsement of claim filed 30 June 2022.
However, on 17 March 2025, Dr Singh effectively disavowed reliance on his original formulation.
Instead, he indicated that his claims would be as follows:[38]
(a)Loan - Dilawar Singh: $160,000;
(b)Success fee - Dilawar Singh: $160,000;
(c)Return of Capital - Dilawar Singh: $42,000; and
(d)Interest.[39]
[38] Plaintiff's supplementary submissions filed 17 March 2025, pages 2 - 4.
[39] Plaintiff's supplementary submissions filed 17 March 2025, pages 2 - 4.
The amounts reflected in paragraphs 56(a) to (c) above correspond with amounts which had appeared in a table forming part of an email sent to Dr Singh by the Liquidators on 17 July 2023 (July 2023 email).[40]
[40] Singh 2024 affidavit, Annexure 16, pages 84 - 85.
The table reads as follows:
Liability 2 May 2023
(Form 520)
$24 May 2023 (Appointment date)
$Loan - Dilawar Singh 160,000 160,000 Success fee - Dilawar Singh 160,000 160,000 Ray - Return of capital 91,500 Nil Kalwant - Return of capital 91,500 Nil Dilawar - Return of capital 42,000 42,000 Total 545,000 362,000
(Italics added for emphasis)
Immediately above the table, in the July 2023 email, the following words appear:
6. Details of the unsecured creditors (yet to be paid) of $545,000 as reported in Form 520 Declaration of Solvency
Please refer to the table below and note that you are the remaining creditor of the Company as at the date of appointment of Liquidators.
On Dr Singh's revised calculations, the total due to him as at 17 May 2025 was $416,205.70.[41]
[41] Plaintiff's supplementary submissions filed 17 March 2025, page 3.
Evidently this total is, on Dr Singh's reckoning, comprised of the sum of the amounts in paragraphs 56(a) to (c) above plus interest at 8%.[42]
[42] Plaintiff's supplementary submissions filed 17 March 2025, page 3.
As will be observed, this a significantly lower amount than the $8,498,391 initially sought by Dr Singh.[43]
[43] Cf. the total of the amounts sought in the Writ and Amended Statement of Claim filed 12 January 2023, prayer 1.
I infer, based on the materials provided by Dr Singh that the amounts recorded in paragraphs 56(a) and (b) above reflect the total now claimed by Dr Singh for his Loan Claim.
It is not presently clear how the amount of $42,000 recorded in paragraph 56(c) above (Return of Capital Claim) is calculated.
Since mention is no longer made by Dr Singh of either the Unpaid Salary Claim or the Intellectual Property Claim, I will ignore these (evidently now abandoned) claims for the purposes of the analysis which follows below.
Loan Claim
Dr Singh's Loan Claim is underpinned by an alleged verbal agreement concluded between himself and Ray Wills, director of Sun Bred.
The verbal agreement is documented in the 'minutes of the board meeting of directors' of Sun Bred dated 7 July 2016 (board minutes).
The board minutes record the following:[44]
The Board accepted [Dr Singh's] offer in relation to the Funding of the Development Fund of up to $100,000 and is in addition to the $17,000 advance made for the deposit of the Land. The following conditions will apply.
1.A return of 50% will be paid on the amount drawn from the $100,000 extended by [Dr Singh] and this would be dependent on the successful completion of the Solar Farm project on the Land in Cunderdin.
2.An additional 50% bonus would be paid after one year and would be dependent on the successful completion of the Solar Farm project on the Land in Cunderdin.
[44] Nipps affidavit, Annexure 'JJN-7'.
The Liquidators accept, based on what is recorded in the minutes, that an agreement was concluded between Dr Singh and Sun Bred. They also accept, despite the reference to $100,000 in the board minutes, that $160,000 was in fact lent by Dr Singh and is now owed by Sun Bred.
The Liquidators also appear to have accepted, at the hearing, that under the terms of the agreement Dr Singh was entitled to receive:
(a)the $160,000 capital he initially lent to Sun Bred; and
(b)two additional 'lots of 50 per cent' on top of his initial capital (I infer $80,000 x 2, totalling $160,000) provided 'successful completion' of the Solar Farm project occurred.[45]
[45] ts 46, 17 February 2025.
However, the Liquidators and Dr Singh disagree as to whether there has been successful completion.
I digress to observe that, on 6 September 2023, Dr Singh lodged a proof of debt or claim in relation to the Loan Claim,[46] and on 30 October 2023 the Liquidators partly admitted that claim (in the sum of $160,000) and partly rejected it (to the extent of the additional sum of $160,000 claimed by Dr Singh for his alleged 'Success fee').[47]
[46] Defendant's supplementary submissions filed 11 June 2024, [47](c)(ii)] read with Nipps affidavit, pages 66 ‑ 67, Attachment 'JJN-5'.
[47] Defendant's supplementary submission filed 11 June 2024, [47(c)(ii) read with Nipps affidavit, pages 69 ‑70, Attachment 'JJN-6'.
However, Dr Singh has not appealed this rejection.[48]
[48] Nipps Affidavit [17].
The dispute concerning whether Dr Singh is entitled to his claimed 'Success fee' appears to centre around whether the sale of the Subsidiary in July 2022, prior to physical completion of the Solar Farm project, constituted successful completion.
Dr Singh contends that it did, while the Liquidators say it did not.
As the Liquidators properly accepted, Dr Singh was not required to prove the merits of his claim in the context of these interlocutory proceedings.
Rather, the onus of persuading the court that a stay should be granted lies squarely on the Liquidators.[49]
[49] See Willmott v Queensland (2024) 98 ALJR 1407; [2024] HCA 42 [15(1)].
In my view, the material presently before the court is insufficient to persuade me that the Loan Claim is meritless.
I say this noting, in particular, that Dr Singh relies on an alleged verbal agreement and that it well be a matter for trial as to whether (and if so to what extent) evidence of any discussions leading up to what was later recorded in the board minutes is admissible and/or relevant to questions of construction.
It follows that the Liquidators have not satisfied me that the Loan Claim has no real substance.
Return of Capital Claim
As noted earlier, it is not presently clear how the amount of $42,000 recorded in paragraph 56(c) above is calculated.
That said, I infer from the materials that Dr Singh seeks to recover this amount in circumstances where:
(1)On 1 May 2023, a few weeks before the Liquidators were appointed, Sun Bred by its accountants had sent Dr Singh a cheque for $42,000.
(2)The covering letter from Sun Bred's accountants, accompanying the cheque, described the payment as representing Dr Singh's shareholding in Sun Bred.
(3)On 6 June 2023, the cheque was deposited but returned unpaid with the answer 'REFER TO DRAWER'.[50]
[50] Cf. Singh 2024 affidavit, pages 28 - 30, 50 - 54, 76 and 81; affidavit of Dr Dilawar Singh sworn 10 February 2025 (Singh 2025 affidavit) 'evidence 3' and 'evidence 4'.
There is no mention of the Return of Capital Claim at all in either Dr Singh's writ or statement of claim.
Accordingly, the Return of Capital Claim is not properly before the court.
It is neither possible nor appropriate to express a view as to whether such a claim would have substance if an attempt were now to be made to introduce it into this action.
For completeness, I note Dr Singh did, on 6 September 2023, lodge a formal proof of debt or claim with the Liquidators for the amount the subject of the Return of Capital Claim relying on the correspondence and unpaid cheque referred to in paragraph 82 above.[51]
[51] Singh 2025 affidavit, page 13 'Evidence 3'.
This claim was rejected by the Liquidators on 30 October 2023 on the basis that s 553 of the Act provides for the types of debts or claims provable in a winding up, and a return of capital is not a debt admissible to proof against Sun Bred.[52]
[52] Singh 2024 affidavit, Annexure 15, pages 81 - 82.
Noting I am not dealing with any appeal against that decision,[53] and that I have no further information concerning the background to this claim, I express no view as to the correctness or otherwise of the reasons given by the Liquidators for rejecting this claim.
[53] Corporations Regulations 2001, r 5.6.54 read with Supreme Court (Corporations) (WA) Rules 2004, pt 14.
Futility?
The Liquidators' remaining propositions effectively invite the court to conclude that even if Dr Singh is wholly successful, continuation of his action is futile because, whatever the ultimate outcome, there is no realistic prospect of Dr Singh recovering any more than an amount substantially less than the $160,000 the Liquidators accept is due to Dr Singh.
In this regard, the Liquidators gave evidence on 1 July 2025 to the following effect:[54]
(1)As at 30 June 2025, the total balance of cash held by Sun Bred was $252,707.01.
(2)Assuming the liquidation of Sun Bred were to conclude within a month of 1 July 2025, its remaining expenses were expected to be $56,000 comprising $5,000 for accounting costs (including estimated accounting costs to finalise the winding up), $1,000 in legal costs (being unbilled work in progress) and $50,000 for the Liquidators' remuneration.
(3)In summary, were the liquidation to conclude within a month of 1 July 2025, its financial position would be $196,707.01 after paying the 'remaining expenses' referred to immediately above.
(4)However, if the action were to proceed to a trial limited to the claims referred to in paragraphs 56(a) - (c) above (assuming a two-day trial with counsel instructed):
(a)the costs and disbursements for conducting Sun Bred's defence is estimated at $89,925 (including GST); and
(b)the Liquidators' estimated remuneration to provide instructions to Sun Bred's solicitors in relation to the conduct of its defence together with the Liquidators' involvement in the proceedings would be $35,000.
[54] Woolard affidavit, [6] - [10].
As a matter of simple arithmetic, it follows that were the action to proceed to judgment, Sun Bred's net asset position would by that time be no more than approximately $71,782.01 before payment of any judgment sum(s) in Dr Singh's favour.
Dr Singh's position
Some months before the Liquidators provided the above evidence, Dr Singh accepted, albeit in the context of an earlier estimate given by the Liquidators based on Dr Singh's original claim, that the Liquidators' defence costs could be as much as $250,000.[55]
[55] Plaintiff submissions filed 6 May 2024, page 7.
However, Dr Singh appears to contend as follows.
First, the Liquidators have overcharged Sun Bred and an order should be made precluding them from charging liquidation fees of more than $20,000.[56]
[56] Plaintiff's submissions filed 14 February 2024, page 5.
Secondly, nearly $9 million dollars can and ought to be 'recovered' by Sun Bred which would not only provide sufficient funds to pay his claims but would also enable the company to 'operate … in the future'.[57]
[57] Plaintiff's submissions dated 6 May 2024 page 8.
These amounts are:[58]
[58] Plaintiff's submissions dated 6 May 2024 page 8.
Amount to be recovered by whom Amount 1.
Ray Wills & Kalwant Dhillon (interest paid)
$452,830
2.
Dividends distributed among Directors
$735,521.66
3.
Equity distributed among Directors
$183,000
4.
Future Smart Strategies Pty Ltd
$87,918.56
5.
Proto Holdings and Costas Miller Pty Ltd
$7,014,867
6.
Sun Brilliance Energy India Pvt Ltd (Loan)
$8,557
7.
Sun Brilliance Energy India Pvt Ltd (Shares at par)
$33,190
8.
Amount available in company's account payable to plaintiff
$362,000
Total $8,877,884.22
There are obvious difficulties with these contentions; not least the general principle of judicial restraint applicable to actions that might unduly interfere with the exercise by external administrators of their statutory powers.[59]
[59] See Kimberley Diamonds Ltd v Arnautovic (2017) 252 FCR 244; [2017] FCAFC 91; (2006) 154 IR 265 [92], [110] (Foster, Wigney & Markovic JJ).
As Wigney J explained (in the context of personal insolvency) in Shaw v The Official Trustee in Bankruptcy of the Australian Financial Security Authority (No 3) [2021] FCA 1569:
[A]s a matter of principle … the Court should not unduly interfere with the trustee's day-to-day administration of a bankrupt's estate. Nor should the Court put a trustee and possibly the creditors to the trouble and expense of what would, in effect, amount to an inquiry into the trustee's administration of the estate unless the Court is first satisfied that there are substantial grounds for believing that the trustee had erred in its administration of the estate and that an inquiry, if conducted, would reveal misconduct.[60]
(emphasis added)
[60] [2021] FCA 1569 [22].
On the material before the court, there is in my view no adequate evidentiary foundation to conclude there are any grounds (let alone substantial grounds) for believing that the Liquidators have erred in their administration such that if an inquiry were conducted it would reveal misconduct.
In any event, this action is not the appropriate vehicle for any such inquiry to now take place.
Conclusion
In weighing all relevant considerations, the irresistible conclusion is that Dr Singh's action should be stayed permanently.
The harsh reality is that, were the action to proceed, and even if Dr Singh were to be entirely successful, he would at best receive less than half the amount which the Liquidators have already agreed they will pay him.
To permit the action to continue, in those circumstances, would facilitate an outcome which would 'likely give rise to the perception that the administration of justice is inefficient, careless of costs and profligate in its application of public moneys'.[61]
[61] Cf. UBS v Tyne [59] (per Kiefel CJ, Bell & Keane JJ).
It goes without saying that such an outcome would be inimical to the proper administration of justice.
For this reason alone, the action ought to be permanently stayed to avoid such an abuse of the court's processes.
I will hear from the parties as to the final form of orders and on the question of costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JE
Associate to the Hon Justice Musikanth
21 JULY 2025
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