Tabruby Pty Ltd v Belbrooke Pty Ltd
[2025] QSC 249
•23 SEPTEMBER 2025
QUEENSLAND COURTS AND TRIBUNALS
TRANSCRIPT OF PROCEEDINGS
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SUPREME COURT OF QUEENSLAND
CIVIL JURISDICTION
TRESTON J
No 11148 of 2020
DANIEL MOORE (SCHEME ADMINISTRATOR) Applicant
AND TRUSTEE FOR THE BELBROOKE
ADMINISTRATION TRUST AND BELBROOKE
MORTGAGE TRUSTand
OCHKIT PTY LTD A.C.N 010 874 058 Respondents
TABRUBY PTY LTD A.C.N. 010 371 061
AS TRUSTEE FOR THE CAMPBELL
SUPERANNUATION FUNDMICHAEL LAWRENCE MASTERS AND
DEBRA ANNE MASTERS AS TRUSTEES
FOR THE SUPER HOLIDAY FUNDBARRY CALDER DAHM AND JOAN DAHM
AS TRUSTEES FOR THE BC & J DAHM
SUPER FUNDSTEPHEN GEORGE BLADES AND VALERIE
DAWN BLADES AS TRUSTEES
FOR THE CATCH22 SUPER FUNDBELBROOKE PTY LTD A.C.N.159 775 336
AS TRUSTEE FOR THE BELBROOKE
ADMINISTRATION TRUSTBELBROOKE PTY LTD A.C.N. 159 775 336
AS TRUSTEE FOR THE BELBROOKE
MORTGAGE TRUSTWILLIAM JOHN HENRY HOUWING AND
CHRISTINE LESLEY HOUWINGCHRISTINE LESLEY HOUWING ATF
FOR THE ROSEVALE DISCRETIONARY
TESTAMENTARY TRUSTBRISBANE
2.58 PM, TUESDAY, 23 SEPTEMBER 2025
DAY 1
JUDGMENT
Any rulings in this transcript may be extracted and revised by the presiding Judge.
WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings.
HER HONOUR: On 28 October 2020, an originating application was filed seeking the appointment of an administrator to a scheme, some of the details of the scheme which I will now set out. The self-represented parties, Mr and Mrs Houwing, were the directors of one of the companies, Belbrooke Proprietary Limited, which company is a trustee of the Belbrooke Mortgage Trust which is a unit trust and the Belbrooke Administration Trust which is a discretionary trust. The primary beneficiaries of which are also Mr and Mrs Houwing.
Mr Houwing was a director and authorised representative of a company, Financial Options. Financial Options held an Australian Financial Services licence and Mr Houwing provided financial advisory services through that business. Mr Houwing would arrange for his investor clients to lend money to related entities in circumstances where it is alleged that there was no independent advice.
As a consequence of his conduct, Mr Houwing was permanently banned from providing financial services and the licence which the company held was cancelled. In particular, it is alleged that Mr Houwing recommended to his clients that they lend moneys to either the Belbrooke Mortgage Trust or the Belbrooke Administration Trust. The trustees of each such trust was, as I say, Belbrooke Proprietary Limited. The company would then lend moneys to Mr and Mrs Houwing themselves or companies controlled by them.
Whilst both the Houwings and the company they controlled, Ochkit, purchased real property, the assets of the scheme were not the real property, but rather the registered first mortgages over the real property securing the advances from Belbrooke. By way of example only, Mr Moore’s material demonstrates that the transactions demonstrate some transactions by reference to the examples of the applicant company, Tabruby. Under a loan, Tabruby lent Belbrooke, as trustee for the Belbrooke Mortgage Trust, a sum of $828,000. Tabruby was then issued with 828,000 units in the Belbrooke Mortgage Trust.
The trust was to provide Tabruby with an equitable interest in that trust. The mortgage trust was then to hold a first mortgage over land owned by the Houwings’ company, Ochkit. The loan agreement provided that, in the event of further advances, or in the event that the loan interest was not paid, then Tabruby would consent to Belbrooke creating further additional units and issuing those units equal to the dollar amount of the loan outstanding. That had the effect that, on default under the loan, the remedy was to issue more units notwithstanding that the underlying asset base against which the security was provided was not itself increasing.
In relation to the administration trust, the circumstances of the second applicant is demonstrative of how the scheme worked, and, again, by way of background only, in that case, the second applicant, as trustees for their superannuation fund, lent $165,000 to the administration trust with the agreement provided that the borrower agreed that the lender was entitled to an equitable interest in the trust which had a first mortgage over certain land. Whilst the trust was not identified, it was the mortgage trust that held the relevant first mortgage over the real property. Again, units in the mortgage trust were issued to the investors.
On the 17th of November 2020, an application to wind up this scheme came on for hearing before Justice Applegarth. There had been an earlier return date before Justice Bradley in October of the same year. There is before me today proof of service of that material on the Houwings prior to the return of that application. See the affidavit of Herbert, court document 8.
The transcript of the hearing for that day before Justice Applegarth includes a record that an email had been sent to Justice Bradley’s Associate via Mrs Houwing, along with a letter dated 16 November 2020, attaching a one-page medical certificate from a Dr Faruk, who was a general practitioner at Esk, as well as a psychiatric report from Dr Malcolm Foxcroft dated 8 May 2018. That material was contained in an affidavit, again, of Herbert, sworn 17 November 2020. Justice Applegarth then considered the Houwings’ request for an adjournment before embarking substantively upon the hearing of the application. That appears at page 3 of the transcript through to about the middle of page 5.
There, his Honour took into account Mr Houwing’s ill-health in the context of his post-traumatic stress disorder, to which I will return shortly. His Honour also took into account the fact that, in his Honour’s view, there was no reason why Mrs Houwing could not give instructions herself in relation to the proceeding.
However, ultimately, his Honour concluded as follows on the 17th of November:
“The Court and the solicitors for the applicant only last evening or this morning received communications from Christine Houwing, who, I understand, is a director of both companies, attaching a medical certificate from Dr Faruk and a 28E psychiatric report in relation to Mr Houwing’s medical condition. And in her communications with the Court, addressed to Bradley J but received by the Court, indicated that Mr Houwing is currently in her care, has been put under a mental health plan by Dr Faruk. She says that he has not had the opportunity nor is able to seek legal advice in respect to this matter. That is not quite explained, given that this proceeding was initiated on 19 October. In any event, the advice of the doctor is that Mr Houwing is unfit to appear at the hearing of the matter due to his mental health condition and the doctor simply states that: ‘He may not be able to attend to this matter during his ongoing mental condition for at least two to three months.’ Ms Houwing says that she wants to apply to stay the proceedings until a Dr Rundell can certify that Jack is sufficiently stable to seek legal advice and instruct a lawyer. With some reluctance, I am going to grant an adjournment. I decline the stay the proceedings until Dr Rundell or anyone else can certify that Jack Houwing is sufficiently stable to seek legal advice and instruct a lawyer. It is to be recalled that the respondents to this proceeding are corporate entities, not Mr Houwing, personally. Secondly, if Mr Houwing, due to the state of his mental health, generally, or the state of his mental health since being served with the relevant documents, is unable to give instructions, then he would seem to be also unable to carry out his important duties as a company director. In those circumstances, it falls to Ms Houwing, as the able director to do those things.”
Accordingly, his Honour allowed the hearing to be adjourned so as to enable Mrs Houwing some time to obtain legal advice or to consider whether representation was required for the companies. The application was then returnable before Justice Applegarth on 27 November 2020. On that occasion, neither Mr or Mrs Houwing appeared before his Honour. Again, there is proof of service of the material pertaining to that application. See the Herbert affidavit, court document 18.
Justice Applegarth also had before him a letter from Mrs Houwing dated the day before the application, 26 November 2020 indicating, amongst other things, that she was happy to appear by telephone and explaining why the orders ought not to be made. That letter was marked as exhibit 1 in the application before Justice Applegarth.
When the matter came on for hearing before his Honour, the application was stood down whilst an attempt was made to contact Mrs Houwing by telephone and to send an email to her. The two Belbrooke companies were called on the return of that application and the transcript of the hearing reveals that there was no response to that call. The transcript also demonstrates that his Honour recorded that he had had his Associate try on a couple of occasions to reach the telephone number that appeared in the email letter that Mrs Houwing sent, which was exhibit 1.
His Honour recorded that there was no answer to those phone calls and that his Associate had left a message. At 11.54 am, Mrs Houwing had not called back and his Honour decided to embark on the matter. In doing so, his Honour recorded:
“It seems to me that the Houwings, acting on behalf of the respondents, have had an opportunity to respond. They have responded in writing. And they’ve had the opportunity to appear by telephone, as any other litigant in the application for this has, and that has been renewed.”
His Honour, therefore, proceeded to deal with the application for the appointment of an administrator to the scheme, which scheme I have described. The transcript reveals that his Honour then made a summary of the financial arrangements in a similar way to the way I have set out above and I refer to it without repeating the matters which his Honour recorded in the judgment at page 2, lines 5 to 35.
After hearing the submissions, his Honour made orders appointing the now applicant, Mr Moore, to wind up the scheme. I will refer to the order of Justice Applegarth’s, made on the 27th of November 2020 appointing Mr Moore as the scheme order. In doing so, his Honour recorded the following:
“It is apparent to me that the Houwings, and Mr Houwing in particular, were operating an arrangement whereby a variety of people would contribute moneys and acquire rights and interests in the form of units in the Belbrooke Mortgage Trust. There was, in effect, a pooling of funds, this was not simply a series of unrelated loans. None of those investors had day-to-day control over the operation of the scheme. There was a common underlying substance of investors contributing to Belbrooke in order to enable the Houwings to repatriate debt to Elders. And it is apparent that there was something of a business of promoting this scheme and possibly another scheme involving the Administration Trust. So I am persuaded on the material before me that this was a managed investment scheme that should have been registered in accordance with section 601ED of the Corporations Act. I might have made a declaration to that effect today, however, given the potential exposure of the directors of the companies that seemingly operated the scheme, I will defer making that declaration. However, I proceed on the basis that this was a managed investment scheme that was unregistered when it should have been.”
Four years after that scheme order was made, on 14 November 2024, Mr Moore filed an amended application seeking a variety of directions. He sought directions with respect to the distribution of dividends otherwise payable to investors and creditors of the scheme which was otherwise conducted in contravention of the Act. Mr Moore as the applicant then described that the directions that he sought as to the application and the effect of the clear accounts rule, so far as it applied to the property of the scheme, otherwise held on trust for beneficiaries who were unit holders under the scheme.
When the matter came on for hearing before me on 21 November 2024, I caused the bailiff to call Belbrooke Proprietary Limited and Belbrooke Proprietary Limited as Trustee for the Belbrooke Mortgage Trust outside court. I also caused the bailiff to call both Mr and Mrs Houwing by their full names. There was no appearance on behalf of either of the companies or Mr and Mrs Houwing. As it transpired and for reasons which no longer have any particular relevance, it was later established there had not been adequate service.
And although the application had been heard substantively by the court on that date, because the court could not be satisfied as to the service requirement, the matter was unable to be concluded on that day. I made some directions for the service of the Houwings, and the matter came back on for hearing before me on 30 January 2025.
And at that point, Mr Houwing appeared on his own behalf and on behalf of Belbrooke Proprietary Limited and Ochkit Proprietary Limited. And Mrs Houwing appeared on behalf of the Rosevale Trust. On that day, the Houwings foreshadowed an application for an adjournment, which was not opposed by Mr Moore. Then counsel for Mr Moore suggested the proper progress of the matter would be assured by directions for the delivery of an application by the Houwings, a points of claim document and any affidavit material, including service of material on any third parties who might be affected by the orders which the Houwings propose to seek.
That approach was adopted by the Houwings and the companies whom they represent. What then transpired was that there was a series of review dates so as to bring the matter back on for hearing, including the assistance of the Resolution Registrar to ensure that the matter was ready for hearing when it was listed before me so as to deal with some of the identified preliminary issues. Those preliminary issues were set down for two days, being yesterday, the 22nd, and today, the 23rd of September.
The preliminary issue to be dealt with, as sought by the Houwings, was to raise a question as to whether there was, in effect, a proper basis for Justice Applegarth to have made the scheme order on 27 November 2020. Submissions were exchanged, and when the Houwings received the submissions relied upon by Mr Moore, they foreshadowed a further application for an adjournment so they could be properly prepared to deal with the substantive issues which had been raised by Mr Moore as the scheme administrator.
So as to not entirely waste the two days which had been allocated for the hearing of the matter, I raised with the parties whether there was one aspect of Mr Moore’s submissions which could itself be dealt with as a discrete point on the second day allocated for the hearing, being today. And that was whether there was, in fact, any proper basis to revisit the scheme order which had been made on 27 November 2020.
That issue had been previously identified by Mr Moore in his reply to the Houwings’ points of claim in May 2025. In that document, Mr Moore had identified that there had been no appeal, no application to extend time, and no application to vary Justice Applegarth’s orders. Accordingly, given that the orders were as was submitted – final orders, the application was doomed to fail. Both parties agreed that with the benefit of the time between when the matter was mentioned at 10 am on the 22nd and today, that issue could be dealt with as a preliminary matter.
I directed Mr and Mrs Houwing to the particular paragraphs of counsel’s submissions which pertained to this preliminary point. It was confined to nine paragraphs contained between paragraphs numbered 48 and 57 of the written outline. I identified for Mr and Mrs Houwing that there were a small number of authorities that had been set out in the submissions such that they ought to have been in a position to address the argument first, and if the more substantive part of the argument was then to be heard, it could be listed for the 3rd of October when I would try to make space for it in the civil list before me.
Counsel for the applicant also assisted Mr and Mrs Houwing by identifying the five authorities relevant to this preliminary point which had been provided to them and were contained in the authorities bundle so as to assist them to be prepared for the hearing today, which they were. The Houwings then indicated they wish to provide a further short set of written submissions directed to that preliminary point, which they did so provide. I heard oral submissions in relation to this preliminary point this morning. The hearing occupied some two hours.
On behalf of Mr Moore, it was submitted that the scheme order which was made on 27 November 2020 is a final order in the sense that the judgment delivered by Justice Applegarth on that date finally determined to the rights of the parties in so far as they related to the winding-up of the scheme. Any subsequent orders or directions sought by Mr Moore have related to the issue of the winding-up of the scheme but not the existence of it.
As to the question of whether Justice Applegarth’s order constituted a final order, counsel for Mr Moore referred me to the decision of ASIC v Secure Finance & Investment Services (Australia) Pty Ltd & Anor [2002] WASC 260. In that case, Heenan J said this in respect of an order for the winding-up of a managed investment scheme, in contradistinction to other forms of interlocutory orders:
“In my view, an order for the winding-up of a managed investment scheme is of a different character. It has and is intended to have a lasting effect in bringing to an end the operation of a managed investment scheme which has, up until that point, been operating in contravention of legislative provisions. It is quite true, as counsel for ASIC submits, that there will still be much to do and for a Court to supervise after such a winding-up order is made. There will, or may be, directions to be given to a liquidator, receiver or officer appointed; there may be the need for special powers to be extended; there may be the need for vesting orders to be made; there may be a need for orders for the examination of particular persons claiming interests in the properties of the scheme to be made; but those matters seem to me to be part of the mechanics of putting into effect an order of the Court which irrevocably changes the status of the scheme. This description of the effect of a winding-up order for a managed investment scheme appears to me to satisfy the criteria for a final order within the meaning of accepted authorities - in particular, Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 248 and Australian Telecommunications Corporation v Barnes [1996] 2 Qd R 335.”
His Honour went on, at paragraph 14:
“The fact that if an order winding up this alleged management investment scheme were to be made, that it would then be possible for ASIC or others to come and seek supplementary relief, does not in any way to suggest to me that the order winding up the scheme would not of itself be final.”
It seems to me, for the reasons identified by Heenan J, that the order which Justice Applegarth made on 27 November 2020 was, in fact, a final order. Once it is established it is a final order, unless the Houwings can demonstrate that there is an exception such as fraud and others, to which I will refer, to set it aside, then the order must stand.
I accept the correctness of the submission that this was a final order. Mr Moore submits that, “The order of Justice Applegarth’s was a regularly entered judgment, therefore, which was final and cannot be set aside except by appeal or in a proceeding to set aside the judgment for fraud. There having been no appeal or fraud, it is submitted that the application to revisit the orders of Justice Applegarth’s in making the scheme order is doomed to fail.”
In this regard, Mr Moore points to the decision of Chief Justice Barwick in Bailey v Marinoff (1971) 125 CLR 529 at 530 where the Chief Justice said:
“Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding, apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding which it has finally disposed.”
There are, of course, certain exceptions to that general principle which were identified by Kirby J in DJL v Central Authority (2000) 201 CLR 226. The first is where there is an accidental slip or omission. The second, for the rectification of a court order where the order does not correctly reflect the court’s decision as contained in its reasons. The third, corrections can be made where a party has been wrongly named or described or is shown to have died or ben non-existent. Fourth, the making of a supplementary order without alteration where it is to repair an oversight and prevent injustice. Fifth, where all affected parties consent to the amendment or variation of the order. Sixth, where, in separate proceedings, it is alleged that the judgment was obtained by fraud, and seventh, where there has been some serious denial of procedural fairness. Mr Moore submits that none of those identified exceptions apply in this case.
The Houwings rely solely upon the serious denial of procedural fairness. They submit, in summary, that because Mr Houwing was not physically capable of attending court in November 2020, Justice Applegarth could not properly have understood the full effect of Mr Houwing’s post-traumatic stress disorder upon him, otherwise his Honour would have granted a further adjournment at that time. I deal with those issues raised by the Houwings in written and oral submissions.
First, Mr Houwing has identified that he was not able to attend court on 27 November 2020, because of mental incapacity associated with his diagnosis of post‑traumatic stress disorder. There is evidence before the court that Mr Houwing did suffer from such a condition. I have read the report of Dr Malcom Foxcroft dated 8 May 2018, which report is addressed to Mr Houwing’s then personal injuries lawyers.
The cause of Mr Houwing’s condition arose out of an event which occurred on 24 June 2015 when Mr Houwing was mustering cattle on his property near Esk. Apparently, Energex had been shifting or moving power lines and had left them hanging all over the ground but the power lines had not been marked and Mr Houwing had not been informed of their presence. He suffered a form of electrocution when he struck the powerlines whilst mustering.
The details of his condition, as it existed in May 2018, are set out at length by Dr Foxcroft, including the difficulties Mr Houwing had performing financial work, his inability to interact with clients, problem solving problems, concentration difficulties, loss of interest in outside activities, paranoia and hypervigilance, just to name a few.
Dr Foxcroft described that Mr Houwing had developed clinically significant post-traumatic stress disorder as a consequence of that accident in 2015. Dr Foxcroft noted that once established, the condition tends to take a chronic course with active features and anxiety and difficulties with concentration. Dr Foxcroft considered that Mr Houwing’s prognosis was poor in light of the fact that he had had appropriate treatment, but his symptoms were still persisting.
Although, there was no more recent evidence of Mr Houwing’s condition, for the purposes of this application, I proceed on the basis that that diagnosis of PTSD was, in fact affecting Mr Houwing significantly at the time of Justice Applegarth’s order of 27 November 2020, and might indeed explain his lack of attendance on that day.
Exhibit 1, which was before his Honour on 27 November 2020, is Mrs Houwing’s letter of the 26th of November 2020, and that letter supports that conclusion which I have drawn. Mrs Houwing’s letter identifies that she could not leave her husband at the time; that there had been a large number of suicides in their tiny community in the last 14 years and she was not adding her husband to that list. She apologised to the court for not appearing and indicated that she would be happy to appear by phone if necessary.
I accept the Houwings’ submissions today that Mr Houwing was too unwell to attend court on that day, notwithstanding that Dr Foxcroft’s report which was in evidence, was, at that time, about two years old. His Honour also had the benefit of a shorter and more current report from a general practitioner, Dr Faruk, to which I have already made brief reference. That report suggested that the matter ought to have been adjourned for a period of three months.
Nevertheless, it can also be accepted that Mrs Houwing was able to appear by phone, if necessary. It can be accepted that the Houwings were given notice of the adjournment to the 27th of November 2020, and they did not, in fact, appear. It is plain that his Honour had the evidence of both Dr Faruk and Dr Foxcroft before him, and whilst the Houwings stridently consider that his Honour must not have given those reports sufficient weight, it simply cannot be said that his Honour did not have proper regard to them. That evidence of Mr Houwing’s condition was simply part of the overall factual background, all of which his Honour had to take into account and did take into account.
Even if I accept that Mr Houwing was so unwell that he could not have appeared, it does not seem to me that that was a matter which his Honour failed to take into account. He had particular regard to the medical evidence on both the 17th and the 27th of November and, accordingly, in my view, there is no procedural unfairness in the approach which his Honour took upon which the Houwings rely.
Next, I take into account, as I have already identified, that Mrs Houwing took the opportunity to provide the letter to the court, which became exhibit 1, and she identified that she would be happy to appear by phone but she did not. There is no unfairness to the Houwings, procedurally, by the fact that she did not so appear when the opportunity was available to her.
Third, Mr Houwing knew that the order had been made on the 27th of November 2020. He, in fact, swore an affidavit in accordance with the terms of his Honour’s order, to provide information relating to dealing with persons who are then listed in paragraph 2 of his affidavit filed 12 January 2021 but sworn by him, in fact, on 17 December 2020, less a month after the order was made. That is court number 23.
Knowing that the order had been made, and responding substantively to it, suggests to me that Mr Houwing had an appreciation of the effect of the order and did not attempt to challenge it then on the basis that it had been improperly made or made with some regard to procedural unfairness to him.
Furthermore, at that time, Mr Houwing was represented by Rose Litigation Lawyers, as can be seen on the footer of the affidavit, and I infer that were there any genuine issue in relation to the matter of his Honour’s order, Mr Houwing could have sought and obtained advice about the prospect, for example, of an appeal at that stage but did not.
Fourth, although there is no evidence that Mrs Houwing herself had sworn an affidavit at any time shortly after Justice Applegarth’s order, I infer that she also was aware of the effect of it given that her husband swore a substantive affidavit at that time. She and her husband were living together, and there is no reason to think that she did not know of the existence of that order. That is particularly so having regard to her submission to me this morning, for example, that she was responsible for a lot of the tax and other financial matters of the business, some of which informs the context of the affidavit her husband swore.
Fifth, although it was not relied upon in oral submissions today, Mrs Houwing did identify in her written submissions some issues of her own ill health, primarily pertaining to eyesight difficulties arising out of macular degenerative changes which caused her to undergo cataract surgery in September 2024. She has continued to have some visual difficulties since that time and has difficulty reading fonts smaller than size 16 and describes that she struggles even with an enlarged text.
She exhibits to her affidavit copies of consultation records apparently from her optometrist identifying reviews of her condition, which took place on 17 October 2024 and 9 December 2024. She does not, however, produce any evidence going to whether she had those difficulties in November 2020 at the time of Justice Applegarth’s order, and I did not understand her to advance any argument today that her sight was affecting her at that time in 2020.
Sixth, as I have already mentioned, Mrs Houwing accepted that she could have appeared at the application by phone, although she now does not remember whether she, in fact, knew that the application was on or not. It seems to me tolerably clear that her letter of 26 November 2020, which was exhibit 1 before his Honour, which letter was expressly directed to Justice Applegarth of this court, indicated that she was so aware that the matter was to proceed on 27 November and her lack of memory today is merely the product of the effluxion of time. But it seems to me plain enough that she could have so appeared.
Each of those matters, whether taken alone or together, in my view, could not possibly amount to a denial of procedural fairness to the Houwings.
But it is also a matter of great significance that Mr Houwing identifies that he does not, in fact, want to overturn Justice Applegarth’s order of 27 November 2020 appointing Mr Moore, but, in fact, what he seeks is a clarification as to whether the scheme which was being operated was a managed investment scheme, as that term is used under the Corporations Act, and whether it was required to be registered.
In truth, it seems to be the real crux of the Houwings’ submissions that Mr Houwing described quite honestly in his oral submissions this morning, that he, “wanted to leave the door open”, to take certain steps, if it transpired that the scheme was not, in fact, a managed investment scheme. Elsewhere, he described he wanted to, “leave his options open”, and elsewhere described that he could not tell me whether or not my deciding the issue about whether the scheme was or was not a managed investment scheme would, “lead to something or not”, but he wanted to be able to explore that possibility. In contrast, Mrs Houwing said she had not thought about whether, in fact, she wanted to overturn Justice Applegarth’s order or not, although the relief she sought in her application would suggest otherwise.
This is not an appeal against a decision made by Justice Applegarth. It is not a rehearing of his decision. It is a question of whether this court should entertain an argument that does not seek to overturn the order made by Justice Applegarth but rather, in fact, ask the court for an advisory opinion or a clarification as to whether or not the scheme which was being operated was a managed investment scheme and was required to be registered.
This court does not give advisory opinions, and it does not answer hypothetical questions. That, of itself, is enough to dismiss the Houwings’ application. But coupled with my conclusion that there was, in fact, no denial of procedural fairness, then the Houwings’ application ought to be dismissed.
But for completeness, I turn to consider some other issues that have been raised. It seems to me that there is a strong basis on discretionary grounds to refuse this application. This basis assumes, in fact, that the order made by Justice Applegarth was not a final order but was an interlocutory order, and I approach this consideration on that basis, notwithstanding my earlier findings.
In relation to this, Mr Moore has been appointed as the scheme’s administrator by virtue of Justice Applegarth’s order for almost five years. By his affidavit sworn 7 November 2024, read in this proceeding, he identified that he had complied with advertising and notices to scheme contributors as ordered by this court in April 2023. He has obtained proofs of debt and supporting material from various parties who claim an interest in the scheme property. He has sold the subject property for over $2 million to an arm’s length third party for value. He has, in all respects, proceeded with the administration of the scheme, and that egg simply now cannot be unscrambled, nor should it be.
In circumstances where the Houwings do not, in fact, seek to overturn the order for his appointment, there is a strong discretionary basis to refuse the relief which the Houwings seek.
I also take into account that Justice Applegarth considered in November 2020 that in all the circumstances, it was appropriate for an insolvency practitioner to be appointed to wind-up the scheme and that Mr Moore was an appropriate person to do so. It seems likely to me that his Honour would have made that order whether or not he considered that the scheme was a managed investment scheme under the Act or not. And that is because there was, as counsel for Mr Moore submits, evidence of an arrangement on trust where investors were seeking for the trust to be wound up. That an application was brought for the winding-up of it, whether as a trust or as a managed investment scheme, is not really to the point. An independent person was required to wind-up the scheme, and his Honour was properly satisfied that should be done and that Mr Moore ought to carry out that appointment.
Next, although I observe that Justice Applegarth expressly did not make a declaration on 27 November 2020 as to whether the scheme was a managed investment scheme or not, his Honour was persuaded on the material that it was such a scheme which ought to have been so registered. His Honour only declined to make a declaration to that effect given the potential exposure of the directors of the company that seemingly operated the scheme.
As a matter of fairness to them, he therefore deferred the making of the declaration. But it is clear from his Honour’s reasons that he was so persuaded and Mr Houwing quite sensibly accepts in his submissions and his written submissions that it was a substantial matter which was argued before his Honour. But whether or not it was a managed investment scheme, his Honour, it seems to me, would likely have made the same type of orders in any event. That Mr Houwing would urge the court, and like the court, to determine the issue so that he can leave his options opened is not a basis for the court to enter into such an academic exercise.
Finally, I should record the obvious enough proposition that it is also almost five years since his Honour made the order in November 2020. The appeal period in relation to the order has long since expired. The application seems to be something of a backdoor method to appeal many years too late. I do not suggest for a moment that the Houwings do this with any lack of sincerity. Their sincere best seemed to me to be on display today. And no doubt Mr Houwing’s issues of ill health arising out of his PTSD have complicated their approach to the matter. But those features do not overcome the numerous hurdles which their proceeding involves.
In the circumstances, it seems to me that the Houwings have not identified any discretionary reason to reopen the scheme order, even if I could be satisfied that such an order ought to be made. In the circumstances, I propose to dismiss the Houwings’ application for declarations.
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