Vickers, in the matter of J M Kelly Builders Pty Ltd (in liquidation) (No 2)

In the Federal Court of Australia, the applicants, who were appointed as joint and several liquidators of various companies in liquidation, sought approval from the Court to enter into a deed of amendment to a funding agreement. This application followed a previous order made on 24 May 2019, which had already sanctioned the entry into the initial funding agreement. The Commonwealth of Australia, acting through the Attorney-General’s Department, was a party to the proposed deed of amendment. The central issue before the Court was whether to grant the applicants' request for approval under section 477(2B) of the Corporations Act 2001 to amend the funding agreement, and whether to maintain the confidentiality of certain documents related to the application.

The Court considered the necessity of the amendment to the funding agreement, given the circumstances of the case and the previous approval already granted. It was noted that the liquidators were acting in the best interests of the companies and their creditors by seeking to amend the agreement. The Court was satisfied that the proposed changes were reasonable and would not prejudice the proper administration of justice. Furthermore, the Court recognised the importance of maintaining confidentiality of certain documents to protect the interests of the parties involved. Accordingly, the Court granted the application for approval to enter into the deed of amendment and ordered the confidentiality of specified documents to prevent any potential prejudice.

In granting the application, the Court emphasised the importance of the liquidators' role in managing the companies' affairs and ensuring a fair and efficient distribution of assets. The Court also acknowledged the Commonwealth's cooperation in the matter, which facilitated the resolution of the dispute. The Court's decision to maintain the confidentiality of certain documents was aimed at preserving the integrity of the proceedings and protecting the parties' interests. Finally, the Court ordered that the liquidators' costs associated with the interlocutory process be treated as costs in the liquidation of the companies.