White, in the matter of Macro Realty Developments Pty Ltd and Macro Realty Pty Ltd (No 2)

Hayden Leigh White and Matthew David Woods, in their capacity as liquidators, applied for orders in relation to the approval of a funding agreement. The application was heard ex parte. The applicants sought nunc pro tunc approval of a funding agreement entered into on 30 March 2020 between the applicants and the Macro Funded Entities to fund litigation against a third party. The applicants also sought confidentiality orders in relation to certain affidavits and submissions. The liquidators were unable to fund the litigation due to insufficient funds. The applicants considered that the Macro Funded Entities may have a claim against the third party, but the liquidators were unable to fund the litigation due to insufficient funds. The applicants sought nunc pro tunc approval of the funding agreement, which had already been executed.

The court considered the principles to be applied in determining whether to approve the funding agreement. The court's role in approving the funding agreement was to determine whether it was a proper exercise of the liquidator's powers and not ill-advised or improper. The court was not concerned with matters of commercial judgment but was concerned to be satisfied that the entry into the agreement was a proper exercise of power and not ill-advised or improper on the part of the liquidator. The court was also required to consider the factors relevant to the assessment of a litigation funding agreement, such as the prospects of success of the proposed litigation, the interests of creditors other than the proposed defendant, possible oppression, the nature and complexity of the cause of action, the extent to which the liquidator had canvassed other funding options, the level of the funder's premium, consultations with creditors, and the risks involved in the claim.

The court approved the funding agreement nunc pro tunc and made confidentiality orders in relation to certain affidavits and submissions. The court found that the orders were appropriate because the confidential affidavit contained information that had not yet been disclosed to the intended defendant and referred to legal advice obtained by the liquidators, which was subject to legal professional privilege. The court also found that it was not in the interests of justice that the confidential affidavit and submissions be generally available for inspection.

The court made orders joining Hayden Leigh White and Matthew David Woods as applicants, extending the period for making an application for approval of the funding agreement, approving the funding agreement nunc pro tunc, declaring that the funding agreement was not invalid by reason of having been entered into prior to obtaining the approval of the court, and making confidentiality orders in relation to certain affidavits and submissions. The costs of the application were to be costs and expenses in the liquidations of Macro Realty Developments Pty Ltd, Macro Realty Pty Ltd, and the Macro Parties.