FEDERAL COURT OF AUSTRALIA
Bianco (Trustee), in the matter of the bankrupt estate of Jones (Deceased) [2022] FCA 1470
ORDERS
DATE OF ORDER: |
THE COURT ORDERS AND DECLARES THAT:
1. The following pseudonyms be used in this proceeding:
(a) Mr Bianco and Mr Rossi, the Trustees of the bankrupt estate;
(b) Mr Jones Senior, the deceased bankrupt;
(c) The Bankrupt Estate of Mr Jones Senior (Deceased), the bankrupt estate that is being administered;
(d) Ms Wright, the former spouse of Mr Jones Senior;
(e) Logan Property Investments Pty Ltd, an entity associated with Ms Wright;
(f) ABC Pty Ltd, a creditor of the estate;
(g) ACN Pty Ltd as trustee for the M Trust, a creditor of the estate;
(h) MTA Pty Ltd as trustee for the T Trust, a creditor of the estate;
(i) Mr Jones, the son of Mr Jones Senior;
(j) Mr Jones’ creditors, the creditors of Mr Jones;
(k) AFC Pty Ltd as trustee for the AFC Discretionary Trust, a litigation funder; and
(l) Hasst Pty Ltd, a litigation funder.
2. The Trustees of the bankrupt estate of Mr Jones Senior (Deceased) were justified in entering into a litigation funding agreement on 12 April 2020 with AFC Pty Ltd as Trustee for the AFC Discretionary Trust in the form of the document exhibited at pages 137-159 of the exhibit to the confidential affidavit of Mr Bianco made in this proceeding on 30 September 2021.
3. The matter is adjourned for further submissions, or hearing if necessary, all questions of consequential orders or relief that may be necessary to give effect to these orders, including the resolution of any claims for the costs of this proceeding.
4. Any application for further orders is to be made in writing within 7 days of the publication of these reasons, supported by any affidavits to be relied upon and an outline of submissions, which outline is not to exceed three pages in length.
5. All questions of consequential orders will be determined on the papers, unless the Court otherwise orders.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
MCELWAINE J
INTRODUCTION
1 The applicants are the joint and several trustees (the Trustees) in bankruptcy of a deceased bankrupt estate. They were appointed on 8 July 2016. The object of the sequestration order died in 2018. The nomenclature of this judgment is characterised by 13 agreed pseudonyms in order to maintain the confidentiality of proceedings between some of the parties (who are participants in this proceeding) in the Federal Circuit and Family Court of Australia (Division 1) (the Family Court proceedings and the Family Court respectively) where approved pseudonyms are in place pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth). Further, orders were made in the Family Court on 8 September 2021 which allow the Trustees to make limited and restricted disclosure of the parties, facts, matters and proceedings in the Family Court to the creditors of the bankrupt estate for the purpose of participation in this proceeding. This proceeding is also the subject of closed court and non-publication orders made pursuant to respectively ss 17(4), 37AF and 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) by various judges (including me) between 18 October 2021 and 12 May 2022. The primary basis for those orders is the necessity to prevent prejudice to the proper administration of justice in the Family Court proceedings: s 37AG(1) of the FCA Act.
2 I am satisfied that I have power pursuant to s 37AF of the FCA Act to make an order that pseudonyms be used for each of the applicants and actors in this proceeding, but only if I am further satisfied that it is necessary to prevent prejudice to the proper administration of justice as required by s 37AG(1)(a) of the FCA Act: cf Ogawa (Formerly Ms PD) v President of the Australian Human Rights Commission (Pseudonym) [2022] FCAFC 160. The prevention of prejudice to the proper administration of justice extends to the administration of justice in the Family Court proceeding as a matter of judicial comity: ACW v Du Bray [2019] FCA 1075, Wigney J; Du Bray v ACW [2019] FCA 1586, Jagot J.
3 I am satisfied that the use of pseudonyms in this judgment is necessary to prevent prejudice to the administration of justice in the Family Court proceedings being the risk of public disclosure contrary to s 121 of the Family Law Act and to maintain the confidentiality of that proceeding and the anonymity of the parties. For these reasons, I order that the following pseudonyms be used in this proceeding:
(a) Mr Bianco and Mr Rossi, the Trustees of the bankrupt estate;
(b) Mr Jones Senior, the deceased bankrupt;
(c) The Bankrupt Estate of Mr Jones Senior (Deceased), the bankrupt estate that is being administered;
(d) Ms Wright, the former spouse of Mr Jones Senior;
(e) Logan Property Investments Pty Ltd, an entity associated with Ms Wright;
(f) ABC Pty Ltd, a creditor of the estate;
(g) ACN Pty Ltd as trustee for the M Trust, a creditor of the estate;
(h) MTA Pty Ltd as trustee for the T Trust, a creditor of the estate;
(i) Mr Jones, the son of Mr Jones Senior;
(j) Mr Jones’ creditors, the creditors of Mr Jones;
(k) AFC Pty Ltd as trustee for the AFC Discretionary Trust, a litigation funder; and
(l) Hasst Pty Ltd, a litigation funder.
4 By an originating application filed 1 October 2021, Mr Bianco and Mr Rossi in their capacity as the Trustees of the bankrupt estate of Mr Jones Senior (the bankrupt and the bankrupt estate respectively) seek the following relief:
A. a declaration that they were and are justified in entering into and implementing a litigation funding agreement with [AFC Pty Ltd as Trustee for the AFC Discretionary Trust] (the Funder) dated 14 April 2020 (the Funding Agreement); and
B. an order that, insofar as their entry into the Funding Agreement involved a breach of trust, they are relieved from personal liability for any such breach.
5 As developed in submissions, the application is brought pursuant to s 30(1) of the Bankruptcy Act 1966 (Cth), s 90-15 of the Insolvency Practice Schedule (Bankruptcy) being Schedule 2 to the Bankruptcy Act (Insolvency Practice Schedule) and s 67 of the Trustee Act 1958 (Vic) (Trustee Act). Notice of the application was given, conformably with a confidentiality regime established pursuant to orders made by Downes J on 19 October 2021, and certain creditors appeared at the hearing before me on 28 October 2022. Of those creditors, Mr Jones and certain corporations associated with him (ABC Pty Ltd, ACN Pty Ltd as Trustee for the M Trust, MTA Pty Ltd as Trustee for the T Trust) (together, the Mr Jones parties), Ms Wright and Logan Property Investments Pty Ltd, and Hasst Pty Ltd each, to varying degrees, opposed the application. AFC Pty Ltd as trustees for the AFC Discretionary Trust (the Funder) supported the application.
6 It is important at the outset to understand that it is only the Trustees who are parties. Ordinarily, an application by a trustee for judicial advice invokes a summary procedure and is made ex parte. Analogous provisions have been described as “an exception to the Court’s ordinary function of deciding disputes between competing litigants. An application for judicial advice… is in nature essentially a request for private advice”: Application of Macedonian Orthodox Community Church St Petka Inc (No2) (2005) 63 NSWLR 441; [2005] NSWSC 558 at [23], Palmer J. Where, as here, it is made on notice to affected persons they are not parties within the commonly understood meaning of that noun: Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 (Macedonian Church) at [65], Gummow A-CJ, Kirby, Hayne and Heydon JJ. Kiefel J delivered separate concurring reasons. I mention these matters as the arguments that were developed and emphasised had the distinct flavour of adversarial litigation, without proper regard to the purpose of the summary procedure and the consequence that issue is not joined on many of the matters identified in the arguments.
7 I accept, however, that the disputes that exist between the Trustees and the participants may identify a basis not to exercise the jurisdiction to give advice, were I to conclude that in the interests of justice they ought to be resolved in a properly contested proceeding: Macedonian Church at [36].
8 Subject to these preliminary remarks, for convenience only I will employ the label of parties when referencing the participants individually or collectively.
9 In very broad compass, the issues for determination in this matter commence with the appointment of Mr Bianco and Mr Rossi as joint and several trustees of the bankrupt estate of Mr Jones Senior on 8 July 2016, in consequence of the lodgement of a debtor’s petition. Mr Jones Senior was a successful businessman, but he also ran into trouble in the Family Court. He was married to Ms Wright until they divorced in 2006. Their separation led to a significant claim by her for property orders. Mr Jones Senior conducted his business affairs through various companies and trusts. He held the main business assets in the form of units in a unit trust. In late 2006, Ms Wright commenced property settlement proceedings in the Family Court. She asserted that the units in the unit trust comprised assets to be included in the matrimonial pool. Mr Jones Senior contended that pursuant to a Deed and Declaration of Trust made on 28 February 2002 (Deed and Declaration of Trust), he transferred his beneficial ownership of the units to Mr Jones, to take effect upon the business achieving a stated minimum profit which was said to have occurred on 30 June 2006.
10 In 2007, Mr Jones commenced a proceeding in the Supreme Court of Victoria seeking declaratory relief against Mr Jones Senior, Ms Wright and certain corporations to the effect that the transfer of units had vested in him and that he was entitled to be registered as the unit holder in the records of the trust.
11 In September 2009, the parties to the Family Court proceeding resolved it in the form of a deed of settlement and a binding financial agreement. Ms Wright received a significant transfer of property and cash in consequence of the making of final property orders by the Family Court on 24 September 2009. It would seem that the settlement assumed that the units had been validly transferred to Mr Jones.
12 On or about 31 May 2010, Mr Jones Senior allegedly confessed to Ms Wright that there had been wrongdoing by him and others in the Family Court proceeding in that the Deed and Declaration of Trust was not made on the date it bears, was a sham and that he had given false evidence in the Family Court proceedings.
13 In April 2014, Ms Wright filed an application in the Family Court (supported by Mr Jones Senior) seeking to:
(1) set aside the deed of settlement and binding financial agreement;
(2) set aside the Deed and Declaration of Trust and/or have it declared a sham;
(3) make property orders in her favour by including the value of the units as part of the matrimonial pool of assets.
14 The Mr Jones parties were then joined to the Family Court proceeding. They opposed the application of Ms Wright. They obtained orders for the determination of a separate question: was the Deed and Declaration of Trust executed on the date it bears? Doubtless the parties believed that this would result in an efficient and less expensive resolution of the application of Ms Wright. They were wrong. The trial of the separate question occupied 87 hearing days between July 2014 and July 2017, partly because of a concern that Mr Jones Senior should give all of his relevant evidence due to a serious deterioration in his health. He later died in 2018.
15 On 22 August 2016, the Trustees were joined as interveners in the Family Court proceeding, but did not at that stage take an active role in the matter as their interests aligned with those of Ms Wright.
16 A judge of the Family Court for reasons published on 4 December 2018 determined that the Deed and Declaration of Trust was not made on 28 February 2002 and made various findings in support of her conclusion that the deed is a fraudulent document. However, the judge did not then make any substantive orders. Later, on 15 November 2019 her Honour declared that the deed was not executed on the date that it bears and dismissed an application that she recuse herself from further involvement in the proceedings.
17 The Mr Jones parties appealed those orders. The Trustees actively participated in the appeal in support of Ms Wright. On 25 August 2021, the Appellate Division of the Family Court dismissed the appeal against the declaration, allowed it against the recusal determination, disqualified the primary judge from further participation and remitted the matter to another judge of the trial division.
18 The Mr Jones parties unsuccessfully sought special leave to appeal from the High Court against those orders.
19 Separately, the Appellate Division on 5 November 2021 ordered the Mr Jones parties to pay the costs of Ms Wright of the appeal in a fixed sum and dismissed a separate application by the Trustees for their costs of the appeal. In doing so, the court was critical of the participation of the Trustees in the appeal, a topic to which I return later in these reasons.
20 The Trustees have a keen and legitimate interest in the Family Court proceedings. If the Deed and Declaration of Trust is set aside as a sham or a fraud, then it is open to Ms Wright and the Trustees to claim that the units are property of the bankrupt estate subject to s 116(2)(q) of the Bankruptcy Act, the effect of which is that the divisible property of the estate does not include any property that under Part VIII of the Family Law Act the trustee is required to pay to Ms Wright as a former spouse of the bankrupt. The Trustees believe the units to be substantially valuable and that after the making of any further provision in favour of Ms Wright, the estate is likely to be solvent and is open to being annulled pursuant to s 153A of the Bankruptcy Act. The premise for that belief turns on acceptance that the most substantial creditor in the bankrupt estate, the ATO, withdraws a proof of debt for an amount of approximately $115 million, which is lodged on the basis of a notice of assessment for the capital gains tax liability upon the transfer of the units. The Trustees believe that the assessment will fall with any demise of the Deed and Declaration of Trust.
21 Self-evidently, it is expensive to be involved in litigation of the scale of that which has and continues to occupy the Family Court upon the application of Ms Wright. The creditors of the estate have lodged proofs of debt for a total of approximately $120 million. The deficiency of assets is approximately that amount. The Trustees do not have sufficient funds to actively participate in the Family Court proceedings. No creditor has offered a costs indemnity to conduct the litigation on satisfactory terms.
22 On 14 April 2020, the Trustees entered into a litigation funding agreement with the Funder (the Funding Agreement). Very broadly, the Funder agrees to fund the past and future legal and administrative costs of the Trustees in the Family Court proceeding, the appeal and other related proceedings, including any adverse costs order. If a settlement sum is secured (the Resolution Sum) the Funder is entitled to be reimbursed for costs already paid plus a commission calculated as a multiple of costs paid, the amount recovered and the year in which resolution occurs. The commission is not a percentage of the Resolution Sum. There is no funding cap, although the Funder does have the ability to terminate the Funding Agreement on notice. The Funding Agreement does not fund the general administration costs of the bankrupt estate as a whole.
23 Although a condition precedent of the Funding Agreement required the Trustees to obtain approval of their entry into it from this Court, a committee of inspection or a resolution of creditors, such approval was not sought by the Trustees prior to part performance by the Funder and the Trustees. As at 30 September 2021, the Funder had paid to the Trustees or their appointed lawyers approximately $974,000.
24 The Trustees now seek that retrospective approval be given to their decision to enter into the Funding Agreement and that their part performance be ratified. Further, and on one view of their application, they seek approval for all future steps that may be taken in implementing the Funding Agreement.
THE EVIDENCE AND THE ESSENTIAL FACTS
25 Several affidavits the subject of confidentiality orders were read upon the hearing. The Trustees evidence is comprised of affidavits made by Mr Bianco on 30 September 2021, 10 May 2022, 18 October 2022 and 27 October 2022. Some paragraphs in the latter affidavit were not read into evidence. They also rely on an affidavit of Ms Lily Thi Nguyen, solicitor, made on 30 May 2022. The Mr Jones parties read into evidence an affidavit of Mr Lachlan Steinfort, solicitor, made on 16 November 2021. Hasst Pty Ltd relies on two affidavits of Mr Peter Lucarelli made on 24 May 2022 and 7 June 2022. No witness was required for cross-examination.
26 The facts are not substantively in dispute save for six discrete facts that are contained in the affidavit of Mr Bianco of 30 September 2021 as identified in a notice of dispute of the Mr Jones parties dated 26 May 2022. Despite the absence of challenge by cross-examination, it was put to me in submissions that I should not make findings of fact in accordance with the six disputed matters. To the extent to which I am able to resolve those disputes by reference to evidence which is otherwise uncontested, or by reference to the submissions of the parties, my findings are separately identified. Subject to that, my findings of fact are as follows.
27 Mr Jones and ABC Pty Ltd are the opposing parties in the Family Court proceedings. Mr Jones will stand to benefit if the proceeding fails. His related corporations stand to benefit as creditors if it succeeds in the way predicted by the Trustees.
28 With the benefit of his detailed knowledge of the Family Court proceeding, Mr Bianco considers that the likely ultimate result is that the Deed and Declaration of Trust will be set aside and/or declared a sham, Mr Jones will not be entitled to the units purportedly transferred to him in the unit trust, the units and other relevant property or assets flowing from the benefit of the units will then vest in the bankrupt estate and be redistributed in accordance with any further orders made by the Family Court as provided for at s 116(2)(q) of the Bankruptcy Act. If the Deed and Declaration of Trust is set aside or declared as a sham, then the “likely further consequence” is that the quantum of the claims lodged upon the bankrupt estate will drastically reduce in that the ATO will no longer maintain an entitlement to a distribution based upon the capital gains tax liability. That liability represents approximately 95%, in value, of the total estimated claims upon the bankrupt estate. With some degree of confidence, the view of Mr Bianco is that the tax debt “will presumably fall away and the Commissioner’s proof of debt will be withdrawn, as no capital gains tax event would have occurred to attract the tax liability”. Mr Bianco does not address the possibility that the ATO may issue an income tax assessment to the bankrupt estate to replace the capital gains tax assessment.
29 Mr Bianco further believes that the interests of the Trustees and Ms Wright in the Family Court proceeding are aligned because, if the Deed and Declaration of Trust is set aside, “the matrimonial pool would substantially increase for the benefit of both [Ms Wright] and the creditors of the bankrupt estate (other than the Commissioner)”. It is also foreseeable, in his view, that if the Deed and Declaration of Trust is set aside, then the Trustees will need to enter into negotiations, and if not successful commence proceedings, concerning the division of the relevant assets as between the bankrupt estate and Ms Wright. At that juncture, their interests will diverge.
30 Thus far the proceeding in the Family Court has been “especially intricate” and complex. The transcript of the 87 day hearing to date is in excess of 6000 pages and deals with evidence relevant to the entirety of the Family Court proceeding. The claims of Ms Wright are wholly and vigorously disputed by the Mr Jones parties. The view of the Trustees is that, in consequence of the decision of the Appellate Division of the Family Court, the likely substantial value in dispute in the Family Court proceedings and the significant consequences for the bankrupt estate require that the Trustees now be actively involved in all aspects of the Family Court proceedings in order to discharge their duties as trustees and for the benefit of all of the creditors of the bankrupt estate. The future course of the Family Court proceeding is likely to raise questions, inter alia, relating to what assets constitute assets of the unit trust and whether the accumulation of any assets since September 2009 is the consequence of personal exertion by Mr Jones and for which an appropriate allowance must be made: Warman International Ltd v Dwyer (1995) 182 CLR 544.
31 Thus far the Trustees have not received useful information as to the value of the units in the unit trust or the underlying values of assets and the quantum of liabilities of the corporate trustee. Based on the valuation relied upon by the ATO in issuing the notice of assessment for the capital gains tax liability, the Trustees believe the units, at least as at the date of assessment, have a value in excess of $71 million.
32 To 30 September 2021, the Trustees had incurred legal and administration costs of $1,024,744 of which trustee remuneration comprised approximately $115,000. Doing the best that he can, Mr Bianco estimates that the likely future legal costs of the Trustees, together with administration costs, will exceed $1 million, in total in excess of $2 million.
33 As at 24 April 2020, shortly after the Funding Agreement was entered into, the cash available in the bankrupt estate was $497,427.17. Those funds were not sufficient to permit further useful participation by the Trustees in the Family Court proceeding. Of the total amount of $120,884,310 claimed by creditors of the bankrupt estate, approximately $2,800,000 comprises claims by “adverse creditors” being the Mr Jones parties or persons or corporations associated with the Mr Jones parties and Ms Wright.
34 Mr Jones Senior was the sole registered proprietor of a property at [Redacted] in Victoria. In July 2016 the mortgagee of that property took possession and sold it in the exercise of its power of sale. Of the net proceeds, the Trustees received $1,383,012.23 on or about 31 July 2017. That money was partly applied by the Trustees to fund their remuneration and certain legal costs, including but not limited to the Family Court proceeding, such that as at 14 April 2020 the balance held by the Trustees was $497,427.17.
35 In late 2019, the Trustees became concerned that by reason of the nature, complexity and high costs of the Family Court proceedings, in addition to the broader costs of the administration of the bankrupt estate, that the funds held would not be sufficient to permit adequate participation in the Family Court proceeding. They were also concerned that they may suffer an adverse costs order or be required to provide security for costs in the Family Court proceeding. A decision was taken to actively seek litigation funding for the Family Court proceeding.
36 On 25 September 2019, the solicitors for the Trustees sent a brief to the Funder with a request for funding. The chairman of the Funder was known professionally to Mr Bianco and to his knowledge the Funder was skilled and experienced in conducting funded litigation. An attractive aspect of the Funders procedures is that it only required a basic brief and oral advice from senior counsel in conference before making a decision to fund litigation. In the experience of Mr Bianco, this avoided the more substantial costs that would have been incurred in preparing a detailed brief for submission to an alternative prospective litigation funder. In addition, Mr Bianco stated, and I accept, that:
By comparison I note that, in the course of my work I have frequently had discussions with other commercial funders about potential funding for other matters in which I have been involved. In my general experience, these negotiations are usually protracted and can be expensive (because funders commonly require written prospects advice and detailed documentation) and frequently result in no agreement being reached. In light of that experience, and in circumstances where I was ultimately satisfied that the Funder’s proposal was fair and reasonable, I considered it important to seize the opportunity to secure funding for the [Family Court proceedings] in the efficient manner that the Funder’s approach offered without seeking proposals from other commercial funders.
37 In initial discussions with representatives of the Funder, it had proposed a commission calculated as a flat percentage of any ultimate Resolution Sum. Mr Bianco rejected that for the reason that in his assessment it would have afforded the Funder an unreasonable rate of return based on his assessment of the value of the units that might ultimately be returned to the bankrupt estate. He requested the Funder to reconsider its position and to submit a proposal for structured payments by reference to a multiple of the costs to be expended by the Funder. On 11 November 2019, the Funder provided to the Trustees an indicative term sheet which proposed a commission structure based on a multiple of the Funder’s costs, with the multiple to increase each year the longer a resolution took to achieve. The initially advised multiple was, in the assessment of Mr Bianco, excessive and further negotiations were engaged in with the objective of reducing it. On 13 December 2019, an amended indicative term sheet was provided by the Funder which provided for a lower commission multiple calculated by reference to the time taken to resolve the proceedings. That proposal was accepted in principle.
38 On 14 April 2020 the Trustees entered into the Funding Agreement with the Funder. Relevantly, it contains clauses to the following effect:
(1) For the commission to be calculated as a multiple of the Funder’s costs if resolution occurs within the first 5 years at a particular multiple, which increases after year 5. In each case the multiple is tied to a range of expenditure by the Funder;
(2) For the payment of past costs incurred by the Trustees of $198,152.51 for lawyers’ costs and $77,244.75 for the Trustee’s administration costs;
(3) that the Funder will pay any adverse costs order made against the Trustees in the Family Court proceeding;
(4) the Funder will provide, or procure a third party to provide, any security for costs required to be provided by the Trustees in the Family Court proceeding;
(5) the Funder will pay the costs of the Family Court proceeding of the Trustees defined as the legal costs and disbursements of lawyers engaged by the Trustees and the costs reasonably incurred by the Trustees in the day-to-day conduct and administration of the Family Court proceeding;
(6) at its discretion, the Funder may agree to fund any appeal or cross-appeal arising from the determination of the Family Court proceeding;
(7) in the event that the outcome of the Family Court proceeding is that the Trustees receive a “Resolution Sum”, defined as any amount or the value of any assets or benefits received by or vested in the Trustees on account of the settlement, judgment or declaration in the Family Court proceeding, the Trustees irrevocably authorise and direct the engaged lawyers to immediately receive and pay that sum into a trust account and then to pay the Funder from the Resolution Sum the Funder’s costs and the commission. The Funder’s costs is defined as meaning all of the costs paid by the Funder pursuant to the Funding Agreement;
(8) the Resolution Sum is required to be distributed in the order of priority set out in clause 9 whereby the first priority is payment to the Funder for the Funder’s costs; and
(9) the Funder is entitled to terminate the Funding Agreement in certain circumstances as provided for at clause 15 being for serious breach of the Funding Agreement by the Trustees and which is not remedied within 30 days after receiving written notice from the Funder or 14 days after the giving of written notice to the Trustees by the Funder in circumstances where the Funder, in its sole discretion, forms the opinion that taking further steps in the Family Court proceeding is not commercially viable for the Funder. If the agreement is terminated for breach by the Trustees, the Funder remains entitled to receive the Funder’s costs and the commission from the Resolution Sum. If the agreement is terminated upon the election of the Funder, the only entitlement that it has to receive payment from the Resolution Sum is for the Funder’s costs expended to the date of termination.
39 Some clauses in the Funding Agreement are the subject of specific objection and submission by the opposing parties in this proceeding. Where that is so, in my consideration of the submissions, the clauses are set out in full.
40 As I have mentioned, the Funding Agreement also contains a condition precedent relating to approval. It is clause 2.1:
It is a condition precedent of this agreement that the Bankruptcy Trustees obtain approval (and provide evidence of such to the Funder) of the Bankruptcy Trustees’ entry into this agreement by:
(a) obtaining orders of a court having jurisdiction under the Bankruptcy Act 1966 (Cth); or
(b) obtaining approval of the Committee of Inspection; or
(c) obtaining a resolution of creditors.
(the condition precedent.)
41 There is no committee of inspection in the bankrupt estate. The condition precedent was not otherwise complied with by the Trustees before the parties commenced performance of the Funding Agreement. To 30 September 2021, the Funder has paid:
(1) Past costs comprising lawyers’ costs of $198,152.51 and trustees’ costs of $77,244.75;
(2) Lawyers’ costs of $660,258.85; and
(3) Trustees’ costs of $38,189.80.
42 The evidence of Mr Bianco is that the Trustees did not seek creditors’ approval to enter the Funding Agreement because, in his assessment, the adverse creditors were likely to vote against such approval “in an attempt to halt or adversely interfere with” the involvement of the Trustees in the Family Court proceedings. That claim is disputed by the Mr Jones parties. Notwithstanding that dispute, I find as a fact that this was the belief of the Trustees and explains why no step was taken to seek creditors’ approval.
43 Mr Bianco does not explain why the Trustees did not seek court approval to the Funding Agreement before it was performed. Nor do they offer an explanation for the delay in the making of this application: a substantial period of approximately 17 months between 14 April 2020 and 1 October 2021. To the extent that there is any evidence which explains why the Trustees ultimately commenced this proceeding, it is sparse and limited to two paragraphs in the affidavit of Mr Bianco of 30 September 2021. The Trustees anticipate that the Funding Agreement will continue “for a prolonged period” by reason of the complexity of the Family Court proceeding, the likelihood of further appeals and, if the Trustees succeed, further applications that may be necessary to discover and trace assets. Having regard to these matters, Mr Bianco states:
In light of all of the above, and particularly in respect of the concerns regarding the past and potential future conduct of the Adverse Creditors, the Trustees respectfully seek the orders set out in the Originating Application filed together with this Affidavit.
44 That is not evidence which satisfactorily explains the delay. It is not evidence which explains why, despite the condition precedent, the Trustees did not promptly bring the present application.
45 In the view of Mr Bianco, which I accept, his belief is that the Funder’s costs and commission calculated in accordance with the Funding Agreement are each fair and reasonable having regard to:
(a) the costs to be funded over what is likely to be many years of litigation in the Family Court proceeding;
(b) the obligation of the Funder to pay any adverse costs order made against the Trustees and to provide security for costs, if required;
(c) the risks of litigation and the related risks of any recovery proceeding which the Funder may decide to fund, even if the Family Court proceeding and any further appeals are decided favourably to the Trustees; and
(d) the complexity and likely length of the Family Court proceedings.
46 Mr Bianco held that belief at the time of entry into the Funding Agreement, and continues to hold it.
47 The Trustees engaged with one other prospective litigation funder between July 2016 and May 2018. That funder is a creditor in the bankrupt estate. The conditions insisted upon by that entity were considered unacceptable by the Trustees; in particular, conditions relating to the nomination of solicitors and barristers of choice by the entity, a refusal to fund the cost of attendance of instructing solicitors in court, a requirement that the Trustees must pursue proceedings in the name of the bankrupt estate which had either already been lost or in their view were of little merit and insistence that the entity be responsible for dictating the strategy to be implemented in the Family Court proceeding. In addition, the percentage commission sought by the entity was, in the view of the Trustees, grossly excessive either as first proposed at 80% or as subsequently reduced to 65%. The Trustees also rejected an alternative proposal from that entity, as put in September 2016, in the form of an offer to purchase any chose in action of the Trustees in the Family Court proceedings for a price of $5,000 together with an indemnity for the cost of conducting that proceeding and with an ultimate promise to remit 35% of any net amount recovered. More detailed information was requested by the Trustees in relation to that proposal in correspondence of 14 September 2016, which went unanswered. Ultimately, in the view of the Trustees, the alternative funder was not prepared to negotiate an appropriate commission or to fund the litigation on terms acceptable to the Trustees. I accept the evidence of Mr Bianco that this alternative proposal was not acceptable.
48 I further accept his evidence that no other creditor was likely to offer funding for the Family Court proceeding on acceptable terms.
49 Importantly, I also accept the evidence of Mr Bianco that in his assessment, no matter the outcome of the Family Court proceedings, the creditors as a whole of the bankrupt estate will be better off by reason of the Funding Agreement. In particular, I find in accordance with his evidence that:
(1) The Trustees do not have sufficient funds to fund the administration of the bankrupt estate and the likely cost of active participation in the Family Court proceeding.
(2) If the Family Court sets aside the deed and declaration of Trust, it is likely the ATO will withdraw the notice of assessment and its proof of debt.
(3) If the units are vested in the bankrupt estate they are likely to be of significant value, based on the applied value of approximately $71 million for the purposes of the ATO assessment. Although the Mr Jones parties dispute this figure, the evidence was admitted without objection, there is a disclosed basis for it and, despite that they are the parties best placed to give evidence as to the value of the units, they chose not to do so: Blatch v Archer (1774) 1 Cowp 63; (1774) 98 ER 969.
(4) On this basis, the Trustees expect that ultimately they will realise sufficient assets, after payments to the Funder, to discharge all of the estate creditors in full and then proceed to an annulment application.
(5) If not, if sufficient funds are realised to pay the administration costs and the Funder, but not to pay creditors in full, the creditors will still be better off compared to their position without the Funding Agreement in that additional assets will be realised for the benefit of the estate, being reimbursement of the past costs of the litigation by the Funder. That holds true even if insufficient funds are realised to pay the administration and legal costs in full, or similarly, if the Family Court proceeding wholly fails, because the amount of funds in the administration will not decrease by reason of the Funder’s obligations.
(6) No creditor is likely to be prejudiced in consequence of the Funding Agreement. I make this finding (for the reasons explained below) despite the submissions by the Mr Jones parties that the Trustees have squandered certain funds of the estate and the submission by Ms Wright that her interests as the applicant in the Family Court proceeding may be adversely affected by some provisions of the Funding Agreement.
50 I make the overall finding consistent with the entirety of the evidence of Mr Bianco that the Trustees have a proper interest in participating in the Family Court proceeding and it is in the best interests of the creditors as a whole that they do so. The question of the degree of their participation and the appropriateness of the Funding Agreement is addressed separately in considering whether to exercise my discretion to grant the relief that is sought.
51 I make these findings despite the list of assertions of fact with which issue is taken by the Mr Jones parties and by reference to the affidavit of Mr Bianco of 30 September 2021. Addressing those contentions in order:
(a) It is not material that I make the finding of fact that is deposed to at paragraph [18(b)] namely that Mr Jones asserted that the turnover target was achieved in accordance with the Deed and Declaration of Trust as at 30 June 2006 when he produced the instrument. Whether he did and the date that the target was met are each immaterial to the exercise of my discretion;
(b) Similarly, the value of assets received by Ms Wright in consequence of the property settlement orders dealt with at paragraph [18(e)] is not presently material and the extent of my finding is that she received some assets of significant value;
(c) I place no reliance on the fact asserted at paragraph [34]. What is dispositive is the record of the orders made by the Appellate Division of the Family Court;
(d) I have found in accordance with the direct evidence of Mr Bianco at paragraph [35] that success in having the Deed and Declaration of Trust set aside as a sham or a fraud will likely result in withdrawal of the tax assessment of the ATO as it is premised on a CGT event being the legally effective transfer of the units. Fraud “unravels everything”: May v Platt [1900] 1 Ch 616 at 623, Farwell J;
(e) I have found as deposed to at paragraph [42] that success in having the units vest in the bankrupt estate is likely to give rise to further complex issues in the identification and valuation of the assets of the unit trust, the extent to which the assets have increased in value due to the exertions of Mr Jones and there may be consequential tracing issues. Each of these facts accords with common experience in trust litigation and there is a rational basis for this evidence; and
(f) There is a typographical error at paragraph [51] which concerns whether the 24 April 2020 report to creditors was issued “just prior to” the signing of the Funding Agreement. With my leave, Mr Bianco corrected the error in his affidavit of 3 November 2022. The correct fact is that the report was issued after execution of the Funding Agreement. Of course that does not explain why it was not mentioned in the report; a matter which the Mr Jones parties emphasise as relevant to my discretion to grant relief.
LEGAL PRINCIPLES
52 Section 90-15 of the Insolvency Practice Schedule, with effect from 1 March 2017, replaced the procedures for the review and control of trustees that were provided for at ss 178 and 179 of the Bankruptcy Act. It confers broad power to make orders in relation to the administration of a bankrupt estate and relevantly provides:
Court may make orders
(1) The Court may make such orders as it thinks fit in relation to the administration of a regulated debtor’s estate.
Orders on own initiative or on application
(2) The Court may exercise the power under subsection (1):
(a) on its own initiative, during proceedings before the Court; or
(b) 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:
(a) an order determining any question arising in the administration of the estate;
…
53 No party submitted that this Court lacks jurisdiction to grant the relief sought by the Trustees. The issue is whether I should exercise my discretion favourably, and if so on what terms. In the course of submissions my attention has been drawn to numerous authorities that have considered this provision, its counterpart at s 90-15 of the Insolvency Practice Schedule (Corporations) being Schedule 2 to the Corporations Act 2001 (Cth) and the former provisions of that Act, ss 479(3) and 511 each of which permitted a liquidator (in the case of the former) or a liquidator, contributory or a creditor (in the case of the latter) to apply to the court for, respectively, “directions in relation to any matter arising under the winding up” or “to determine any question arising in the winding up”. Despite the change in wording introduced by s 90-15, principles which have guided the exercise of the discretion remain relevant, though as Gleeson J observed in Ample Source International Ltd v Bonython Metals Group Pty Ltd (in liquidation), Bonython Metals Group Pty Limited (in liquidation) (No 8) (2018) 366 ALR 491; [2018] FCA 1614 at [89] the supervisory powers under s 90-15 “are arguably as broad, or broader than” the s 479(3) powers.
54 In an often cited decision, Brereton J in Re One.Tel Limited (2014) 99 ACSR 247; [2014] NSWSC 457 (One.Tel) identified certain principles as guiding the exercise of the discretion to determine questions arising in a winding up pursuant to s 511 of the Corporations Act at [32]–[36]:
Applications under s 511 are of the same nature as applications in a court ordered winding up under s 479(3) [Dean-Willcocks v Soluble Solution Hydroponics (1997) 42 NSWLR 209, 212; Crawford v Oswald Park Pty Ltd (in liq) [2006] NSWSC 987, [10]; S & D International v MIG Property Services [2010] VSC 336, [7]; In the matter of Ian James Purchas as liquidator of Astarra Asset Management Pty Ltd (in liq) [2011] NSWSC 91, [33]; 7 Steel Distribution, [20]]. The jurisdiction is analogous to the judicial advice jurisdiction under (NSW) Trustee Act, s 63. The effect of a direction under s 511 is to sanction a course of conduct on the part of the liquidator so that he or she may adopt that course free from the risk of personal liability for breach of duty [Purchas, [36]; Re Timbercorp Limited (in liq) [2011] VSC 189, [3]; Re S&D, [88]].
While the ability of a liquidator to approach the Court for directions is intended to facilitate the liquidator's functions and should be interpreted widely to give effect to that intention [Re One-Tel Networks Holdings Pty Ltd [2001] NSWSC 1065; (2001) 40 ACSR 83], it is insufficient to justify giving such directions that the liquidator wants reassurance about a commercial decision; some such issue as a question of law or procedure, of power, propriety or reasonableness, is required to justify approaching the court for directions, as was explained by Goldberg J (in the context of a voluntary administrator's application for directions under s 447D) in Re Ansett Australia Limited and Korda [2002] FCA 90; (2002) 115 FCR 409; 40 ACSR 433, [65]:
The prevailing principle adopted by the courts, when asked by liquidators and administrators to give directions, is to refrain from doing so where the direction sought relates to the making and implementation of a business or commercial decision, either committed specifically to the liquidator or administrator or well within his or her discretion, in circumstances where there is no particular legal issue raised for consideration or attack on the propriety or reasonableness of the decision in respect of which the directions are sought. There must be something more than the making of a business or commercial decision before a court will give directions in relation to, or approving of, the decision. It may be a legal issue of substance or procedure, it may be an issue of power, propriety or reasonableness, but some issue of this nature is required to be raised. It is insufficient to attract an order giving directions that the liquidator or administrator has a feeling of apprehension or unease about the business decision made and wants reassurance.
In Sanderson v Classic Car Insurances Pty Limited (1985) 10 ACLR 115, Young J said (at 117) that the cases in which directions might properly be given fell into four categories, namely guidance on matters of law, guidance on questions of legal procedure, whether a liquidator should postpone a sale in order to achieve a better price, and where there are two competing offers for assets and a liquidator wishes to gain court directions in order to avoid a subsequent allegation that he or she has acted improperly in choosing one over the other. However, these categories are not exhaustive, and as Giles J said in Re Spedley Securities (at 85), immediately after noting that a Court will not make a liquidator's commercial decision for him, “It is nonetheless common for a liquidator to seek directions as to whether he is justified in entering into a particular compromise”.
Thus, while the Court will not generally give a direction where the matter relates to the making or implementation of a business or commercial decision, or where no legal issue is raised and there is no attack on the propriety or reasonableness of the liquidator's decision, it may do so in the context of a proposed compromise [Re Spedley Securities, 85], and/or where the decision is likely to be contentious [Re Ansett, [65]; 7 Steel Distribution, [20]; Re S&D, [58]-[59]]. But the fact that a direction under s 511 - unlike an approval under s 477(2A) or (2B) - exonerates the liquidator from personal liability, means that a closer examination of the liquidator's decision is required than under s 477. In short, the court should not make a direction the effect of which is to exonerate the liquidator from personal liability in respect of a commercial judgment that the liquidator is concerned may prove contentious, unless satisfied that the liquidator's decision is, in all the circumstances, a proper one.
Accordingly, I do not agree that the court will give a direction that a liquidator is justified in pursuing a certain course of action unless there is a lack of good faith, an error of law or principle, or real and substantial grounds for doubting the prudence of the liquidator's conduct (as might be suggested by Re The Bell Group Ltd (at [47])). While the court's function under s 511 does not involve it in reconsidering every factor that has informed the liquidator's decision, let alone developing alternatives or deciding whether the court would have made the same decision, the court needs to be satisfied, before making a direction, that the decision is proper and reasonable; at least usually, this will necessitate consideration of the liquidator's reasons, and the process by which the decision has been reached. Because this is a wider inquiry than is required by s 477(2A) and (2B), it is convenient to address it first.
55 Section 90-15 is not expressed as limited to determinations about proposed conduct by a trustee. In submissions, the opposing parties emphasised that acting properly I should deny relief to the Trustees on the basis that they seek ratification for past decision-making, particularly in circumstances where the condition precedent clause in the Funding Agreement would seem to have been ignored and where no attempt was made to seek creditor approval. I accept that these matters are relevant to my discretion and that conventionally the power to make orders in favour of, and give directions to, trustees is concerned with intended conduct. But I do not accept that it is not open to seek directions and to make orders in relation to past conduct. The opposing parties place emphasis on a further passage in the reasons of Brereton J in One.Tel at [55]:
As with judicial advice to trustees, the court is usually conservative in the advice it gives to liquidators under s 479(3) and s 511, and such advice is conventionally expressed in terms that "the liquidator would be justified" in adopting a particular course of action. The jurisdiction to give such directions is concerned with affording protection to the liquidator in connection with proposed future action, not with ratifying action that the liquidator has already taken. This view of the jurisdiction is supported by the following observations of McLelland J, as he then was, in Re GB Nathan & Co Pty Ltd (1991) 5 ACSR 673, (at 678):
... the only proper subject of a liquidator's application for directions is the manner in which the liquidator should act in carrying out his functions as such, and that the only binding effect of, or arising from, a direction given in pursuance of such an application (other than rendering the liquidator liable to appropriate sanctions if a direction in mandatory or propitiatory form is disobeyed) is that the liquidator, if he has made full and fair disclosure to the court of the material facts, will be protected from liability for any alleged breach of duty as liquidator to a creditor or contributory or to the company in respect of anything done by him in accordance with the directions.
56 At [56] his Honour approved of similar reasoning by Allanson J in Re Bell Group Ltd (in liq); Ex parte Antony Leslie John Woodings as liquidator of Bell Group Ltd [2013] WASC 409 at [43]. It is to be noted, however that despite these reservations, Brereton J ultimately ordered that the liquidators “are justified in entering into and performing” the terms of a deed of settlement that was executed on 9 April 2014, in consequence of a hearing before his Honour that occurred on 14 April 2014.
57 I further note that Mclelland CJ in Re J W Murphy & P C Allen; Re BPTC Ltd (in liq) (1996) 19 ACSR 569 at 570 observed:
…..both s 379(3) of the Companies Code (and the equivalent s 479(3) of the Corporations Law) and s 63 of the Trustee Act are essentially concerned with future action by a liquidator or a trustee, as the case may be. Typically, under either provision the court would give a direction to the effect that the applicant, as such liquidator or trustee as the case may be, would be justified in acting in a specified way or on a specified basis.
58 Section 63 of the Trustee Act 1925 (NSW) relevantly provides that a trustee “may apply to the Court for an opinion advice or direction on any question respecting the management or administration of the trust property…”. In Macedonian Church the plurality concluded that advice may be sought in relation to adversarial proceedings, which advice may determine substantive rights and that the only jurisdictional bar is that “an applicant must point to the existence of a question respecting the management or administration of the trust property or a question respecting the interpretation of the trust instrument”: at [58]. In reasoning in that way, their Honours emphasised at [55]-[56] the point earlier made in Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc (1994) 181 CLR 404 at 421 that:
It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words.
(Footnotes omitted.)
59 Similarly, the only jurisdictional bar to the making of an application pursuant to s 90-15, and for the grant of appropriate relief, is that the question or issue must relate to the administration of a bankrupt estate. There is no temporal limitation. Past conduct may be sanctioned, in appropriate cases. The Trustee’s application is properly made. How the discretion to grant relief is to be exercised is necessarily fact specific, though guidance as to its exercise may be informed by principles that have been identified under similar conferrals of power.
60 Another matter emphasised by the opposing parties is that I should not make orders that have the effect of exonerating decision-making by the Trustees as to do so will deprive those parties of their ability to contend that by entering into the Funding Agreement, the Trustees breached their trust obligations or were conflicted. In developing that submission, reliance was placed upon s 19 of the Bankruptcy Act, which prescriptively enumerates various duties of a bankruptcy trustee, in addition to the fiduciary duties that are owed by all trustees. It is of course trite that orders made upon an application brought pursuant to s 90-15 and which have the effect of sanctioning a course of conduct bind the trustee and the creditors who are entitled to participate as creditors in the administration with the consequence that the trustee may adopt an intended course of action free from the risk of personal liability, but only if full disclosure is made by the trustee: One.Tel at [32]; Re Anglican Insurance Ltd [2008] NSWSC 41 at [38]-[39], Barrett J; S & D International (in liq) v MIG Property Services Pty Ltd [2010] VSC 336 (S&D International) at [7]-[8], Warren CJ and Re Lewis (liquidator), in the matter of Concrete Supply Pty Ltd (in liq) [2020] FCA 841 (Concrete Supply) at [31], White J.
61 It does not follow however that orders may not be made which have the effect of preventing future claims by creditors, although I accept that there may be a discretionary reason to refuse relief. Why that is so is addressed in some detail in Macedonian Church, which I must say was not mentioned in the submissions of any of the parties, though it is referenced in several of the authorities upon which reliance is placed by some of the parties. That is unfortunate in that it should be understood that “useful guidance” in the consideration of the exercise of the powers at s 90-15 of the Bankruptcy Act and s 63 of the Trustee Act 1925 (NSW) is to be found in the considerable body of case law that has developed in judicial advice cases: Macedonian Church at [44]. As the plurality further explained (at [45]), it is settled that a consequence of providing judicial advice to a trustee is to settle and resolve complaints of breach of trust that might otherwise have been the subject of substantive proceedings, despite differences between legislative provisions and rules of court:
That there should be such similarities in the effect achieved by the different provisions is hardly surprising when it is recognised that each is directed to the same end. Each provides for a procedure which, if adopted, will not only protect a trustee from later complaint that he or she should have acted otherwise, but also protect the trustee from personal liability for costs incurred. And where the question for the Court is whether the trustee would act properly in instituting or defending litigation, the answer given will necessarily affect the parties to that other litigation. In particular, the judicial advice proceedings may yield an order which will give one party to the litigation (the trustee) power to resort to a fund in order to meet the costs incurred in pursuit or defence of the litigation.
62 The adversarial nature of the underlying proceeding is not a bar to giving advice as further explained by the plurality at [59]:
No implied limitations on discretionary factors. Thirdly, there are no express words in s 63, and no implications from the express words which are used in s 63, making some discretionary factors always more significant or controlling than others. In particular, s 63 does not provide that the adversarial nature of the proceedings about which the advice is sought, the tendency of the advice to foreclose an issue in those proceedings, or the fact that the trustees seeking the advice are being sued for breach of trust are of special significance. Hence the discretion is confined only by the subject matter, scope and purpose of the legislation. While it was accepted by the Court of Appeal that the court has power under s 63 to give advice even if the proceedings are “adversarial” in character, their approach was to give that consideration very great significance as pointing to an exercise of the discretion against granting advice.
(Original emphasis. Footnotes omitted.)
63 It is unlikely to be appropriate for advice to be given which affects the rights of third parties, although in my view this follows from the more discrete principle that advice, in cases such as the present, only binds the Trustees and the persons entitled to participate in the administration of the bankrupt estate. This point was developed by Rees J in The Matter of BBY Limited (receivers and managers appointed) (in liq) [2019] NSWSC 998 (BBY) at [4]-[5]:
…An application by a liquidator for directions “is not the occasion for the making of order affecting the rights of outsiders ... its effect ... is merely to sanction a course of conduct on the part of the liquidator so that he or she may adopt that course free from the risk of personal liability for breach of duty: Re Anglican Insurance Limited (2008) 26 ACLC 147; [2008] NSWSC 41 at [38] per Barrett J. A court confines itself, in giving directions, to administrative matters and has no authority to resolve substantive matters in dispute between the liquidator and a third party: ibid. It is ordinarily inappropriate for a direction to be given which will adversely affect identifiable legal rights or interests of other persons or will entitle the liquidator to do so with impunity: Re Southern Cross Airlines Holdings Limited (in liq.) [2000] 1 Qd R 84 at 93; [1998] FCA 775; (1998) 16 ACLC 1, 393 at 1,400 per Fitzgerald P, with whom McPherson JA and Thomas J agreed. As Goldberg J explained in Re Ansett Australia Limited and Korda (2002) 115 FCR 409; [2002] FCA 90 at [44]:
When liquidators and administrators seek directions from the Court in relation to any decision they have made, or propose to make, or in relation to any conduct they have undertaken, or propose to undertake, they are not seeking to determine rights and liabilities arising out of particular transactions, but are rather seeking protection against claims that they have acted unreasonably or inappropriately or in breach of their duty in making the decision or undertaking the conduct. ...
The Court may give directions where it will be “of advantage in the liquidation”: Dean-Wilcox v Soluble Solution Hydroponics Pty Limited (1997) 42 NSWLR 209 at 212; (1997) 24 ACSR 79 at 81. The Court will not generally give a direction where the matter relates to the making or implementation of a business or commercial decision or when no legal issue is raised or there is no attack on the propriety or reasonableness of the liquidator’s decision, but may do so where there is such an attack is in prospect: In the matter of 7 Steel Distribution Pty Limited (in liquidation) (receivers and managers appointed) [2013] NSWSC 669 at [20] per Black J; In the matter of Dungowan Manly Pty Limited (in liq) [2018] NSWSC 1083 at [17].
64 A question that does arise in this matter is whether certain clauses of the Funding Agreement may operate to the detriment of the claims of Ms Wright, not in her capacity as a creditor of the bankrupt estate, but as the claimant with potential rights that are preserved by s 116(2)(q) of the Bankruptcy Act and whether in consequence the application, to that extent, seeks to determine “rights and liabilities that arise out of particular transactions” to adopt the phrase of Rees J. I will consider that argument and later return to that point.
65 A further matter of principle that found emphasis in some of the submissions of the opposing parties is that the Trustees accept that even if the orders they seek are not made, they will continue to perform the Funding Agreement and actively participate in the Family Court proceeding. Thus the utility of the application is questioned. Reliance is placed on correspondence dated 25 May 2022 from Lander & Rogers, solicitors for the Trustees, to Baker McKenzie, solicitors for Hasst Pty Ltd wherein it is said:
At the outset, we confirm again the Trustees’ position generally that their Advice Application will not determine any substantive rights in respect of the bankrupt estate.
66 What that sentence means might otherwise be open to interpretation were it not for the fact that in oral submissions it was repeatedly put that the Funding Agreement will continue to be performed even if this application is refused, which submission was not disputed by senior counsel for the Trustees, Mr Maiden KC.
67 As developed, the principle relied on is that it is generally inappropriate to give direction where the issue relates to business or commercial decisions and where the purpose of the application is to seek reassurance or comfort: One.Tel at [33]; Concrete Supply at [31]; S&D International at [19] and Re Ansett Australia Ltd (No 3) (2002) 115 FCR 409; [2002] FCA 90 (Ansett) at [65], Goldberg J. It was submitted that the Trustee’s determination to proceed with the Funding Agreement despite the outcome of this proceeding is evidence that they seek comfort from this Court in approval of their commercial decision. More so, so the argument ran, in this case where the Trustees ignored the condition precedent in the Funding Agreement which required approval, performed its terms and received the substantial benefit of payments from the Funder for approximately 17 months prior to the filing of their application.
68 I accept that this principle is relevant to the exercise of my discretion in this matter, but balanced against it is the consideration identified by Rees J in BBY at [5] (cited above) and by Mansfield J in Re Addstone Pty Ltd (in liq) (1997) 25 ACSR 357 at 363:
While the court may be reluctant to give directions when purely commercial considerations are relevant to the liquidator's decision, even in relation to the conduct of litigation, there will be circumstances where it is or may be appropriate to do so. One of those circumstances may be where the liquidator's proposed decision is the subject of criticism by a particular creditor or creditors as being unreasonable or mala fides. In such a case however, it seems now to be common for the particular creditor concerned about the liquidator's proposed course of action to be heard. That took place without opposition on the present application. Whether, by reason of that involvement of a particular creditor, the case remains one which is properly the subject of directions depends on the particular circumstances.
69 On this application all interested and opposing creditors who wished to be heard made detailed submissions in support of their respective positions that, in effect, the Trustees seek no more than reassurance for the course of conduct that they judged to be in the best interests of the administration of the bankrupt estate and for that reason relief should be refused. That submission is considered in detail in the balance of these reasons.
70 Delay is also a relevant matter to consider in this case, particularly as it is unexplained: Re Colorado Products Pty Ltd (in liq) [2013] NSWSC 1613 at [13], Black J; Young v Thomson (2017) 253 FCR 191; [2017] FCAFC 140 at [24], Siopis and Rares JJ.
71 The topic is not directly addressed in the evidence of the Trustees. Put at its highest the evidence from Mr Bianco, in the final paragraph of his affidavit of 30 September 2021, is that the Trustees seek the orders “particularly in respect of the concerns regarding the past and potential future conduct of the adverse Creditors…” When those concerns were first raised and how that explains the delay is not addressed.
72 The final general principle that I identify as relevant to the exercise of my discretion is the need to be positively persuaded as to the propriety of the conduct for which approval is sought, before affording the protection of the Court’s sanction which frames a cautious and conservative approach: One.tel at [35] and [55]; Re Minken Pty Ltd (in liq) [2019] VSC 288 at [24]-[28], Connock J and Park, in the Matter of Queensland Nickel Pty Ltd (in liq) (No 3) [2022] FCA 1301 at [119(3)], Downes J, although the extent to which that caution survives Macedonian Church is in my view uncertain.
THE SUBMISSIONS AND THEIR RESOLUTION
73 With due deference to the careful submissions of Mr Maiden for the Trustees, as supported by Mr Galvin KC for the Funder, it is more useful to commence with an analysis of the opposing arguments.
74 Mr Waller KC for the Mr Jones parties makes the following submissions. First, properly understood, the Trustees application is not one that seeks approval to enter into the Funding Agreement, as the outcome of the application will not determine the fate of the Funding Agreement, but rather is an exoneration application whereby the Trustees seek protection from personal liability which they may have in consequence of their decision-making to enter into and to perform it. When that proposition was directly put to Mr Maiden in reply, he characterised the application as “in the nature of exoneration and advice”.
75 In accordance with the various authorities that I have referenced, it is certainly the case that if the declaration that is sought is made, a consequence is that the Trustees, on the assumption that they have made full disclosure, will no longer be at risk of personal liability at the suit of the creditors for breach of trust. That consequence is not, plainly, of itself a reason to refuse the relief sought by the Trustees. It is however a matter that requires careful consideration as to whether I am positively persuaded that the decision of the Trustees to enter into the Funding Agreement is, in all of the circumstances, in the interests of the creditors of the bankrupt estate as a whole: McDermott and Potts in their capacities as joint and several liquidators of Lonnex Pty Ltd (in liq) [2019] VSCA 23 at [92]; One.Tel at [35]. The inquiry is necessarily broad and fact sensitive: Re Great Southern Managers Australia Ltd (in liq); Ex parte Jones (2014) 9 BFRA 555; [2014] WASC 312 at [63] where Pritchard J, in a proposed compromise of litigation advice application, and which is in my view equally applicable to this case, observed:
In the case of an application under s 511 of the Act, the Court’s focus will be on whether the giving of the direction will be just and beneficial (that is, advantageous) in the winding up of the company. Determining whether the direction should be given will necessarily involve a broad consideration of matters including the nature of the proposed course of action about which the direction is sought, the circumstances relevant to that proposed course of action (especially those said to warrant the making of the direction), the reasons for and consequences of that proposed course of action (and in the case of a proposed compromise of litigation, the liquidator’s commercial judgment that the proposed settlement should be pursued), and in those cases involving the determination of a legal issue relevant to that decision, the principles relevant to the determination of that issue. All of these matters will be considered for the purpose of determining whether the liquidator would be justified in taking the proposed course of action, within the overall context of the liquidation.
76 In this matter, Mr Bianco has given quite comprehensive and unchallenged evidence that explains the rationale of the Trustees, the perceived advantages for the creditors as a whole and his opinion that the Funding Agreement, because it allows the Trustees to actively participate in the Family Court proceeding, is in the best interests of the creditors. Despite the expression of that opinion, I consider this to be a matter of which I must ultimately be satisfied, and I am for all of the reasons that I express.
77 Secondly, criticism is directed to the timing of the Trustee’s application particularly in circumstances where the condition precedent for approval was either ignored or waived, the creditors were not informed about the Funding Agreement in a timely way and no reference to it was made in the report to creditors of 24 April 2020. Mr Bianco at paragraph [80] of his affidavit of 30 September 2021 gives somewhat unsatisfactory evidence as to why the condition precedent clause of the Funding Agreement was not complied with. In part he says: “notwithstanding the condition precedent… which has not yet been fulfilled (and is the subject of this application), the Funder has paid the following funds pursuant to the Funding Agreement”. That evidence misstates the effect of the condition precedent at clause 2.1 which is expressed as “a condition precedent of this agreement” that the Trustees obtain approval for the “entry into” it. There is no satisfactory explanation in the evidence of Mr Bianco as to why this application was not made shortly after the Funding Agreement was entered into and in order to comply with the condition precedent. In contrast, there is an explanation as to why creditor approval was not sought: in substance the Trustees perceived that certain creditors, who may described as “adverse” would likely vote against approval “in an attempt to halt or adversely interfere with” the involvement of the Trustees in the Family Court proceeding. I find that this belief was genuinely held by the Trustees and in part explains their conduct.
78 There is also an explanation for the delay in informing the creditors of that fact that the Funding Agreement had been entered into. It is found in a decision of the Family Court of Australia that was published on 8 September 2021 whereby detailed orders were made pursuant to s 121(9)(g) of the Family Law Act for the purpose of authorising the Trustees to disclose aspects of the Family Court proceedings to the creditors of the bankrupt estate, which disclosure was obviously necessary as a component of disclosing the fact of the Funding Agreement. Disclosure was made and shortly thereafter this proceeding was commenced on 1 October 2021.
79 What is not explained, however, is the significant delay between entry into of the Funding Agreement on 14 April 2021 and the commencement of this proceeding. I accept the submission that this unexplained delay is a material consideration in the exercise of my discretion. Mr Maiden accepted the fact of delay and the absence of an explanation, but submitted that balanced against it is the fact that none of the opposing parties gave evidence of prejudice suffered in consequence of the delay. That consideration is usually important in inter partes litigation. It does not have particular merit where the Trustees in this case are tasked with performing important statutory functions and for the benefit of the creditors of the bankrupt estate as a whole.
80 Thirdly, significant emphasis is placed upon the fact that in consequence of the sale of the [Redacted] property, the Trustees received, in July 2017, $1,383,012.23 which could then, and in their submission should have, been applied to a dividend of approximately $0.32 in the dollar in favour of the creditors. Instead an amount of $397,247.68 was applied by the Trustees to their fees and $504,161.92 was paid in legal fees. The thrust of the submission is that the Trustees “squandered a certain distribution” by their active involvement in the Family Court proceeding.
81 I reject that submission. As explained in the evidence of Mr Bianco, at the time the sale proceeds were received Mr Jones Senior had been involved in significant litigation in the Supreme Court of Victoria, in addition to the Family Court proceeding. The Trustees did not take an active part in the Family Court proceeding until after the first decision on the preliminary point was published on 4 December 2018. The decision then taken by the Trustees to become actively involved in the Family Court proceeding, and thereafter to enter into the Funding Agreement, cannot be linked to the retrospective criticism that is now made of the fact that a dividend was not considered or paid to the creditors in 2017. What I am concerned with is a decision taken by the Trustees to enter into the Funding Agreement in April 2020.
82 Further, the estimated dividend of approximately $0.32 in the dollar is mathematically wrong for the simple reason that it expressly excludes the most substantial creditor in the estate being the ATO. And the submission overall ignores the fact that once the Funding Agreement was entered into, the Trustees became entitled to receive, and were paid, their costs associated with the Family Court proceeding incurred prior to the date of the agreement. On the evidence of Mr Bianco the amounts received were $198,152.51 for legal costs and $77,244.75 for trustee costs. Thus I accept the submission for the Trustees put in reply that even if they are unsuccessful in the Family Court proceedings “the amount available to distribute amongst creditors will still have increased” by reason of the Funding Agreement.
83 Fourthly, the terms of the Funding Agreement are detrimental to the interests of the creditors as a whole and “substantially beneficial” to the Trustees and the Funder. By way of example that submission was developed in the written case by accepting the evidence of Mr Bianco that the total costs of the Family Court proceeding will likely be up to approximately $2 million:
The Funding Agreement is already in its second year. If the Funder’s costs are $2,000,000 and a “Resolution” is achieved within the fifth year (being the calendar year commencing 1 January 2025) the Funder will be entitled to receive a Commission of $6,500,000 plus the Funder’s costs of $2,000,000. The Funder would therefore receive a total amount of $8,500,000 and achieve a massive 225% return on its outlay before any money is paid to creditors. After five years the Funder’s return on its outlay of $2,000,000 will increase by $250,000 per annum, which is 12.5% each year (assuming the Funder’s costs do not increase beyond $2,000,000, which seems unlikely).
84 The submission then continues with another worked example, assuming that the Family Court proceeding is prolonged for up to 10 years. The Trustees do not dispute this calculation. Nor, and to adopt the language of their written reply, do they “resile from the reality that [the Funder], having assuming the risks of the Primary Proceedings, stands to make a substantial return on its investment. No commercial Funder – otherwise disinterested in the outcome of given litigation – would assume its risks without that prospect”. They also invite this Court to consider that the Trustees were presented with one alternative funding option that proposed a commission of 65% of any sum recovered.
85 The Mr Jones parties did not adduce expert evidence in support of the premise that sits behind this submission: that the return to the Funder is commercially disproportionate to the risks that the Funder accepts. What must not be overlooked is that the Funding Agreement indemnifies the Trustees for their past and future legal costs of the Family Court proceedings, any adverse costs order that is made against them and if security for costs is ordered, the Funder assumes this obligation as well. The unchallenged evidence of Mr Bianco, which I accept, is that the return on investment that the Funder might receive in the event that the Resolution Sum is achieved, is in his view “fair and reasonable” and that the creditors “as a whole will be better off by reason of the entry into the Funding Agreement” which opinion turns upon his detailed analysis of success, wholly or partly, and failure in the Family Court proceedings. Of course, that view turns upon two relatively large assumptions. One, that if the Deed and Declaration of Trust is set aside as a sham or a fraudulent instrument then it is likely that the ATO will withdraw the capital gains tax assessment and with it the proof of debt. The consequence is that the liabilities of the bankrupt estate will very significantly decrease. The other is that the units in the unit trust, if they vest in the bankrupt estate, will be of significant value even if more substantial property settlement orders are made in favour of Ms Wright. As I have found, there is a reasonable and rational basis for the belief held by the Trustees that the units are likely to be of significant value being the valuation relied upon by the ATO which founds the capital gains tax notice of assessment. If it is the case that the units are of minimal value, then one would have expected the Mr Jones parties (being the person’s best placed to assess value) to have adduced evidence to that effect in this proceeding.
86 In any event, I need not be positively satisfied of that fact for the purposes of this proceeding because I have accepted the evidence of Mr Bianco that even if the Trustees are wholly unsuccessful in the Family Court proceedings, the creditors as a whole will not be worse off in that the amount of money available for a distribution, by reason of the payment of past costs, has increased.
87 However, there is an aspect of this submission which is not addressed by this reasoning. At its heart is the contention that the Trustees personally benefit from the Funding Agreement in that they have and likely will receive payment for their administration costs of the bankrupt estate in the day-to-day conduct and administration of the Family Court proceeding. In submissions this was refined somewhat: the Funding Agreement obliges the Trustees to account to the Funder from any Resolution Sum and provides the Trustees with the opportunity to earn fees directly related to the conduct of the Family Court proceeding, which fees they would most likely not have been able to earn absent the Funding Agreement.
88 The Trustees accept this, albeit as an “apparent conflict”. Indeed, they further accept that it is a reason why they bring this application to, in part, be exonerated from the consequences of a conflict of interest of that type. In their written case the Trustees answer this in two ways: one, at all times they have acted bona fide and in good faith and for the benefit of the creditors as a whole, and the other that this conflict sits “at the minimal end of the scale of potential conflicts” and in this case is outweighed by the advantages to the bankrupt estate of participation in the litigation and in accordance with the Funding Agreement.
89 There is certainly the potential that the Trustees may, in the future, face a claim that they were conflicted in their decision-making to enter into the Funding Agreement because of the prospect of personal gain through the generation of fees that they would not, or would not likely, receive if there were no Funding Agreement. In my view however this potential, or actual, conflict is not of itself a reason to refuse to exercise my discretion to grant the relief that is sought. In a general sense, in the administration of any bankrupt estate, a commercial trustee will be remunerated. Whether the remuneration is ultimately received depends upon the course of realisation of the assets of the estate and the quantum of the liabilities. In any litigation that a trustee chooses to engage in, which he or she perceives to be for the benefit of the creditors as a whole, there is the prospect that fees will be earned in addition to the general fees that one might expect to receive in the course of the administration. Further, a conflict of this character is inherent in any litigation funding agreement that a trustee enters into in order to pursue claims for the benefit of a bankrupt estate and even in circumstances where the funder, for example a creditor, expects to receive no more than a reimbursement of costs paid and in priority as provided for at s 109(10) of the Bankruptcy Act.
90 These considerations explain why it is often the case that a trustee in bankruptcy will seek court approval to embark upon or defend litigation in order to be exonerated from the prospect of future personal liability claims that may be brought by creditors of the estate. In this case, in my view, the more important consideration is why the Trustees entered into and then performed the Funding Agreement for approximately 17 months before seeking approval, to which I return in these reasons.
91 Fifthly, there is the criticism made by the Appeal Division of the Family Court when it decided the appeal costs applications in November 2021 and the related submissions that the Trustees’ participation was and is unnecessary, or at least unnecessary in the extent of participation, and that they substantially wasted costs in doing so. The Court in deciding against the Trustees’ costs application said:
However, we do not see that that answers why the third respondents participated in the application and the appeal to the extent that they did. To satisfy the “obligation” that they assert they had, and to act responsibly, they need not have filed the written submissions that they did. Given that they were a repetition of the written submissions of the first respondent, all the third respondents needed to do was adopt those submissions, and that would have amply satisfied their “obligation” to the bankrupt estate and the creditors, and avoided the incurring of significant legal expenses. Plainly, they also did not need to have their Queen’s Counsel and his junior sit through the oral argument in relation to the application and the appeal against the declaratory order, because as was conceded by them in their reply submissions, their oral submissions principally concerned the recusal appeal.
92 Although I accept that to date the interests of the Trustees and Ms Wright in the Family Court proceeding are aligned, in that it is to the benefit of each that the Deed and Declaration of Trust is set aside as a sham or a fraud, at that point their interests will diverge. Ms Wright will then, doubtless, make a claim for further property provision in her favour. The Trustees will most likely seek to negotiate that claim or if it cannot be resolved on appropriate terms, will resist the balance of Ms Wright’s application. It cannot in my view be said that to that point the Trustees do not have a legitimate interest in the Family Court proceeding or that they should not be active participants in the litigation. Despite the protracted litigation that has characterised the Family Court proceeding, it is not beyond prospect that the feuding parties may be persuaded to mediate. It is vital that the Trustees participate in that process. Whilst one must accept the criticisms made by the Appellate Division of the Family Court of the extent of participation by the Trustees in the appeal, it does not follow that by doing so the Trustees wasted or squandered the assets of the bankrupt estate. These costs were met by the Funder pursuant to the Funding Agreement and by clause 3.2(d) the Trustees are obliged to conduct the proceeding “in such manner as to avoid unnecessary cost and delay”. Despite the quantum of fees expended by the Trustees in their participation in the appeal (a matter specifically criticised by the Mr Jones parties), the creditors of the bankrupt estate were not prejudiced by reason of the costs indemnity that is provided for in the Funding Agreement.
93 Accordingly, I reject a number of submissions advanced by the Mr Jones parties in reliance upon the criticism of their conduct by the Appeal Division of the Family Court. There is a clear distinction between the reason why the costs application made by the Trustees was refused (section 117 of the Family Law Act states that the default position is that each party is to bear their own costs which may only be departed from if the court forms the opinion that there are circumstances that justify the making of a costs order) and the anterior decision made by the Trustees that they believed that their participation to the extent that they did in the appeal was in the best interests of the creditors. It may be the case that in the future the Trustees will be more mindful of the extent of their participation, but none of that founds the submission that the court’s criticism fundamentally undermines the reason for the Funding Agreement. Nor is it to the point for present purposes that the expenditure by the Trustees on the legal costs for the appeal was approximately twice that of Ms Wright as no prejudice was suffered by the creditors of the bankrupt estate because it is the Funder that discharged the liability. Although I accept the general proposition that a trustee of a bankrupt estate must proceed efficiently and in a commercially sound way (s 19(1)(j) and (k) of the Bankruptcy Act) I am not able to conclude on the evidence before me that the Trustees breached that obligation. I emphasise that there was no cross-examination of Mr Bianco whereby the waste and squander allegation might have been put directly to him and in that circumstance it would be distinctly unfair to make the finding that I am invited to make by the Mr Jones parties.
94 Another point that is made under this general heading in the submissions is that this Court should not give its imprimatur to a funding arrangement whereby the commission due to the Funder is mathematically linked to the costs incurred and especially so in light of the criticisms made by the Appeal Division of the Family Court. I reject that submission as it is contrary to my finding that overall the Funding Agreement is in the best interests of the creditors of the bankrupt estate and in making that finding I have necessarily accepted the method of calculation of the commission. Linked to that submission is the additional contention that having “already wasted costs”, the Trustees are at liberty to do so again “with the imprimatur of this Court” and that such conduct should not be countenanced. I do not make that finding of fact on the evidence before me as, once again, it would be distinctly unfair to do so when Mr Bianco was not cross-examined to that effect. In any event, it is open to any creditor of the bankrupt estate to approach this Court to inquire into the administration of the bankrupt estate and to make orders in relation to the costs of an action, including court action, taken by a trustee pursuant to clauses 90-10 and 90-15 of the Insolvency Practice Schedule. No aspect of the advice sought by the Trustees seeks to determine future questions of that character.
95 Sixthly, it is submitted that the Trustees have not been entirely forthcoming in disclosing information to the creditors and that, more generally, there has been “a lack of candour” as to the reason for this application. It is certainly the case, as I have found, that the Trustees delayed the commencement of this application and have provided no satisfactory explanation for the delay. It is also the case that the Trustees delayed in notifying the creditors of the fact of entry into the Funding Agreement, although there is an explanation why they did not obtain approval to disclose information from the Family Court until orders were made on 8 September 2021. Beyond that, I do not make a finding of lack of candour on the part of the Trustees, again for the reason that an allegation of that type, which is serious, was not put by way of challenge to the evidence of Mr Bianco.
96 Seventhly, and lastly, I address a submission that I regard as having greater substance. In short, that claims that the creditors may have against the Trustees for breach of trust (in the broadest sense including but not limited to breach of any of the duties at s 19 of the Bankruptcy Act, breach of general fiduciary duty and claimed conflicts of interest) will not be able to be pursued by reason of the exonerating effect of the orders sought. In argument, I pressed Mr Waller to identify potential claims that might reasonably be pressed against the Trustees, as clearly this is a very important consideration in applications for relief that result in exoneration. His submissions in answer were to the following effect:
(a) a lack of candour being the failure to mention the Funding Agreement in the report to creditors of 24 April 2020, as amounting to a breach by the Trustees of their duties and obligations under the Bankruptcy Act, or as fiduciaries, or both;
(b) claims arising from a conflict of interest being the financial benefit received and to be received by the Trustees in the form of remuneration pursuant to the Funding Agreement as priority creditors in the administration of the bankrupt estate;
(c) an application to “scuttle” the Funding Agreement;
(d) a lost opportunity claim for not receiving a distribution in consequence of the sale of the [Redacted] property;
(e) claims for breach of the duty to administer the bankrupt estate efficiently as possible by avoiding unnecessary expense, s 19(1)(j) of the Bankruptcy Act or more generally for breach of trust;
(f) the consequences of a failure to consult the creditors as to whether the agreement should have been entered into, and in particular the failure to act in accordance with the condition precedent in the Funding Agreement;
(g) claims that may arise from the “disproportionate” return to the Funder; and
(h) The inability to have the conduct of the Trustees reviewed pursuant to clauses 90-10 or 90-15 of the Insolvency Practice Schedule.
97 I have explained why I reject the submissions that concern the matters at (b), (d) and (g) and for the same reasons I do not accept that these contentions give rise to any viable claims that might be formulated against the Trustees. In any event, they are not of such significance as to warrant refusal of the application once it is understood that exoneration from some form of identifiable claim is normally a consequence of granting relief of the type that is sought by the Trustees.
98 The lack of candour submission is not of significant weight for the reason that I have found that there is an explanation and I am not prepared to make that finding where it was not put to Mr Bianco. The lost opportunity to scuttle the Funding Agreement should be seen for what it is: self-interest. Mr Jones is the primary respondent in the Family Court proceeding. Less active participation by the Trustees is likely to be to his advantage. Although Mr Waller emphasised in submissions that one should not conflate his interests with those of his related corporations that are creditors in the bankrupt estate, but are not parties in the Family Court proceeding, Mr Jones is a director of those corporations and it may be safely inferred that they participate in this application ultimately for a purpose that includes his benefit. Notably, despite being aware of the Funding Agreement since no later than the commencement of this proceeding, no application has been made by the Mr Jones parties to have it set aside or reviewed. No legal basis to do so was identified in submissions, beyond the broad contention that the Trustees acted in breach of trust in the decision to enter into it. Whether that is a sufficient reason not to give judicial advice in this proceeding is a matter that I take into account when considering submissions (e) and (h).
99 The failure to consult the creditors as to whether the Funding Agreement should be entered into combined with the failure to comply with the condition precedent is a matter of merit in the exercise of my discretion not to afford relief to the Trustees. More so where there is unexplained delay between April 2020 and October 2021 in the making of this application. In accordance with my findings, there is some explanation by way of exculpation as to why the Trustees did not take the question of entering into of the Funding Agreement to a meeting of the creditors in that they believed that any resolution to approve it was likely to be defeated. Whether as a fact that is so does not materially matter for the reason that I am concerned with their honest belief by way of explanation. More troubling, however, is the unexplained failure to make this application in accordance with the condition precedent and in a timely way. This circumstance tends against the exercise of my discretion. But like all factors, it must be considered as part of an overall balancing exercise.
100 I deal next with submissions (e) and (h), which in my assessment carry the most weight. It must not be overlooked that this is a summary procedure where it has not been possible to identify the factual or legal basis for claims that might be made against the Trustees for breach of duty, or for review of the decision-making to enter into the Funding Agreement. During oral submissions I questioned Mr Waller as to what sort of claims might be extinguished if the relief sought by the Trustees was granted. Mr Waller emphasised that I should understand “that the sole purpose of this application is not to benefit the creditors but in fact it’s to protect the Trustees from action by creditors”. I pressed Mr Waller to identify claims that might be open against the Trustees. In answer he pointed to a claim that might exist “for instance” whereby money spent on the appeal in the Family Court proceedings for legal costs of approximately $450,000 should not have been expended but ought to have been held for the benefit of the creditors. The difficulty with that submission is that it must be accepted that this expenditure was reimbursed by the Funder and, in accordance with my factual findings, the creditors are no worse off by reason of the fact of the initial expenditure.
101 A further point made by Mr Waller is that the decision to enter into the Funding Agreement was, or may possibly have been, a breach of trust in that the Trustees were conflicted, and despite that conflict negotiated terms to their financial benefit in the form of fees which they anticipate receiving in the administration of the bankrupt estate and as a priority debt. Even if one accepts a conflict or a “real sensible possibility of conflict” of that character (Boardman v Phipps [1967] 2 AC 46 at 124, Lord Upjohn), that submission cannot be ignored, though it loses much of its force once it is also accepted in accordance with my findings that any trustee in bankruptcy who enters into a litigation funding agreement is likely to receive fees for undertaking work that would not otherwise be undertaken, and indeed in estates where there is sufficient money to conduct litigation for the benefit of the creditors that will also be the case. The fact that there is a priority right to receive payment by the Trustees is the consequence of s 109 of the Bankruptcy Act. The submission further loses force in accordance with my finding that it is in the best interests of the creditors as a whole for the Trustees to participate in the Family Court proceeding in that if it is successfully resolved in favour of the contentions of the Trustees, the assets of the bankrupt estate are likely to very significantly increase. Conversely, and as I have also found, failure by the Trustees in the litigation will not likely have an adverse costs consequence for the administration of the estate.
102 Later in submissions, when this point was returned to, Mr Waller emphasised that the effect of the application is that the Trustees seek exoneration for each step involved in the implementation of the Funding Agreement that is “every step they take going forward in the litigation in the Family Court would be insulated”. I reject that submission. A declaration that the Trustees were justified in entering into the Funding Agreement necessarily subsumes a finding that I am satisfied that its terms are equally justifiable with the consequence that performance by the Trustees of their obligations pursuant to the agreement is also justifiable. It does not follow, however, that “every step” that is taken by the Trustees in the conduct of the litigation is exonerated. The submission conflates steps that may be taken in the litigation with the provisions of the agreement and overlooks that this application does not seek to determine questions that may arise as to how the Trustees have conducted the litigation. For example, if the Trustees were to take steps in the conduct of the Family Court proceeding which one or more of the creditors later considers to be a breach of trust, nothing in the exoneration application affects the right of a creditor to contended that there has been a particular breach or to have the decision-making of the Trustees reviewed upon application pursuant to ss 90-10 or 90-15 of the Insolvency Practice Schedule. The important distinction is that this application seeks advice concerning the decision to enter into the Funding Agreement: it is not an application to exonerate the Trustees for all future conduct in the litigation or the administration of the bankrupt estate and for events, facts and circumstances which have not yet arisen. I should add that Mr Waller accepted in oral submissions that despite the giving of the advice that the Trustees seek, this Court retains power to ultimately review amounts charged by the Trustees in the conduct of the administration of the bankrupt estate.
103 In balancing these claims in the exercise of my discretion, the primary consideration is the interests of the creditors of the bankrupt estate as a whole and the important statutory function that is performed by the Trustees in the administration: Macedonian Church at [72]-[73]. It is not a primary matter of objection that the advice sought, if given, will foreclose future contentions by interested persons that the Trustees breached their duty and/or were conflicted. In Macedonian Church, the plurality repeatedly emphasised that this is not of itself a reason to refuse to exercise the discretion, but rather is the usual consequence of an application of this character: in particular see [45], [59], [70], [75], [103], [125] and [133]. Nor is the fact that this is a summary procedure of itself a reason to refuse relief where, as in the present, there is a lack of precision in identifying possible claims against the Trustees that may be precluded by granting the application. That point is directly addressed in Macedonian Church at [79]-[80]:
It is very common in judicial advice applications for the court to be invited to give advice on the basis of facts, whether proved by affidavit as contemplated by s 63(4) or alleged in a “written statement” or “other material” as contemplated by s 63(3), which are contested and controversial. As Palmer J said, a “judicial advice application … is founded upon facts stated to the Court by the trustee, untested by adversarial procedure, and assumed by the Court to be true” – although “only for the purpose of the application” .
Palmer J understood that if the challenge made by the plaintiffs were to be fully ventilated, “it would doubtless engender yet another protracted and expensive piece of litigation as a spin-off to the Main Proceedings”. Palmer J was right not to permit that to happen. Section 63(2) affords a safeguard against the mischief complained of by the plaintiffs: the trustee loses the protection which the “opinion advice or direction” would otherwise have given if, in obtaining it, the trustee has been “guilty of any fraud or wilful concealment or misrepresentation”.
104 See also [106].
105 In this proceeding, I am satisfied that all issues of substance, as presently known on the facts as disclosed by the Trustees, relevant to the exercise of my discretion have been ventilated and argued. The fact is that this application has been scrutinised by no less than three senior counsel, seven junior counsel and numerous solicitors. Despite the absence of a provision to the effect of s 63(2) of the Trustee Act 1925 (NSW), if the Trustees have not made full disclosure or have been guilty of some wilful concealment, the protection they seek will be lost by application of settled principles which apply to judicial advice applications and which in my view are not displaced by the broad wording of s 90-15 of the Insolvency Practice Schedule: see Re Ansett at [44], Goldberg J in the context of an application by administrators under s 447D(1) of the Corporations Act. No different principle in my opinion applies under s 90-15.
106 For these reasons, I conclude that none of the matters relied on by the Mr Jones parties foreclose the exercise of my discretion to grant relief. To the extent relevant, they must be balanced in its exercise.
107 I turn to the submissions for Hasst Pty Ltd as developed by Mr Liondas. Hasst Pty Ltd is also a litigation funder. It has a funding agreement with Ms Wright, Mr Jones Senior and Logan Investments Pty Ltd which concerns the Family Court proceeding. A redacted version of it is annexed to the affidavit of Stephen Gregory. There are certain clauses in it that relate to arguments put to me on its behalf. A non-redacted version has not been provided to each other participant in this proceeding, in particular the Mr Jones parties. By an interlocutory application filed on 28 October 2022, Hasst Pty Ltd applied for various orders that its funding agreement not be published generally and that the redacted portions remain so. After argument it was agreed that I should dismiss the interlocutory application on the ground that the Trustees did not seek to read a further affidavit of Mr Bianco made on 7 July 2022 in a different proceeding and which annexes a complete copy of the agreement. Specifically, I stated that I could not see the relevance of that document to the determination of the issues upon the Trustees’ application. In fairness to the Trustees, it was sought to be read in discharge of their obligation to provide all information known to them and which they considered to be relevant. During argument on this question, Mr Liondas was keen to emphasise that nothing in my determination should prejudice any rights that his client may have against the Trustees in relation to his client’s separate funding agreement. It does not. By way of comfort, it was agreed that I should record in these reasons that I am not determining issues that may arise between the Trustees and Hasst Pty Ltd concerning that agreement. However, the existence of that agreement and its terms are relevant to a separate contention by Hasst Pty Ltd that I should refuse the advice sought or make a court fund order pursuant to s 90-15 of the Insolvency Practice Schedule to require the Resolution Sum, when received, to be paid into Court pending a final determination of the rights of Hasst Pty Ltd and Ms Wright to it.
108 Hasst Pty Ltd claims to be a secured priority creditor of the bankrupt estate. It relies on two matters. One, pursuant to the separate funding agreement it has a priority over any funds recovered. The other, in accordance with the general principle that expenses in recovering a fund must be borne by that fund, even where there are other secured creditors having priority: Re Universal Distributing Co Ltd (in liquidation) (1933) 48 CLR 171.
109 From that premise, two submissions are made. First, there is a lack of clarity as to what is meant by paragraph 1 of the relief sought by the Trustees: the declaration extends to justify the implementation of the Funding Agreement by the Trustees. That is a point that I have given careful consideration to. In my view, a declaration could only properly be made that the Trustees were justified in entering into the Funding Agreement if, upon a consideration of the entirety of its terms, I am also satisfied as to propriety of those terms and what is required by the Trustees for performance. Thus I have concluded that if I am otherwise satisfied that it is appropriate to make a declaration, then it will be confined to the decision to enter into the Funding Agreement.
110 Secondly, the Funding Agreement relevantly provides at clauses 7 and 8:
7.1 The Bankruptcy Trustees acknowledge that they irrevocably authorise and direct the Lawyers to receive any Resolution Sum and to immediately pay same into a trust account kept for that purpose. The Funder may waive this requirement at its sole discretion by notice in writing to the Bankruptcy Trustees.
7.2 The Bankruptcy Trustees acknowledge that they irrevocably authorise and direct the Lawyers forthwith to pay out of the account referred to in cl 7.1 all payments referred to in cl 8.1 (subject to cl 9).
…
8.1 Subject to cl 9, upon Resolution the bankruptcy Trustees will pay to the Funder or its nominee, from the Resolution Sum, the following amounts:
(a) The Funder’s Costs; and
(b) The Commission.
8.2 No fees, commissions or other payments will become due or owing by the Bankruptcy Trustees to the Funder unless and until Resolution and then will not exceed the Resolution Sum.
111 By clause 9, the Resolution Sum will be distributed in an order of priority whereby the first is payment to the Funder of the Funder’s costs, the second is payment to the lawyers for the lawyer’s unpaid costs and the unpaid costs of the Trustees and the third is payment of the commission to the Funder. If the Resolution Sum is insufficient, distributions will be made pari passu and no amounts will be paid in respect of any lower priority.
112 The argument is that if the Trustees were to take steps to dispose of the Resolution Sum in accordance with these clauses, then the interests of Hasst Pty Ltd would be prejudiced as a creditor with a claimed right to security and/or priority in the administration of the bankrupt estate. As put in its written case, it “wishes to protect itself against a situation where if any Resolution Sum is transferred to the Trustees of the lawyers for [the Funder], in contravention of the asserted rights of [Hasst Pty Ltd], that those monies are subsequently paid away without an opportunity for the parties respective rights to be determined”. It is further submitted that these provisions of the Funding Agreement conflict with s 116(2)(q) of the Bankruptcy Act.
113 In further support, reliance is placed on correspondence between the solicitors, the effect of which is that despite the clarification that was sought from the Trustees as to the meaning and effect of these clauses, the Trustees have not committed to the meaning contended by Hasst Pty Ltd and Ms Wright. Their position is: “the Trustees do not comment on the construction of the [Funding Agreement]” as advanced by the solicitors for Hasst Pty Ltd. Rather, and in an endeavour to assuage the concerns raised, an undertaking has been offered (in addition to one in favour of Ms Wright that I address below) that the Trustees and their lawyers will give to Hasst Pty Ltd at least one week’s notice in writing before making any payment to the Funder of the Funder’s costs or the commission from any property that vests in the Trustees as a result of the Family Court proceeding. Hasst Pty Ltd has not accepted it to resolve its concerns.
114 I reject the submission that I should refuse relief because the claimed rights of Hasst Pty Ltd to security and priority in the administration of the bankrupt estate may be adversely affected by the provisions of the Funding Agreement. I accept the submission put to me in reply by Mr Maiden, that costs incurred in realising assets for the benefit of the creditors of the bankrupt estate, including the reasonable costs of funding recovery proceedings, are subject to a priority lien: IMF (Australia) Ltd v Meadow Springs Fairway Resort Pty Ltd (in liq) (2009) 253 ALR 240; [2009] FCAFC 9, North, Emmett and Rares JJ. Nothing in this application determines any question of priority inter se between the Funder and Hasst Pty Ltd as litigation funders. For the same reasons, I reject the application for a court fund order.
115 I turn next to the submission that I should refuse to grant relief because of a claimed inconsistency between the Funding Agreement and s 116(2)(q) of the Bankruptcy Act, the effect of which is that the divisible property of the bankrupt estate does not extend to any property that under the Family Law Act the trustee is required to transfer to a spouse or a former spouse of the bankrupt. This contention was particularly emphasised by the solicitors for Ms Wright in correspondence that is in evidence. I did not have the benefit of written submissions from her counsel, Mr Dinelli, and orally he was content to adopt the submissions of Mr Liondas on this contention.
116 The point which is developed in the solicitor’s correspondence is best summarised in the following passage from a letter dated 3 June 2022 from Ms Wright’s solicitor to the Trustees’ solicitor:
As you will no doubt appreciate, our client’s application which seeks the transfer of the units in [redacted] to [the bankrupt Estate of Mr Jones Senior (Deceased)] lays the necessary foundation for an application by our client for new property settlement orders to be made under s 79 of the Family Law Act 1975 (Cth). Indeed, that was the very purpose of our client filing the above application. Thereafter, and in the usual course of such proceedings under s 79 of the Family Law Act, issues of priority between our client and the trustees in bankruptcy or unsecured creditors of the bankrupt estate (such as [the Funder]) would need to be determined by the Federal Circuit and Family Court of Australia or resolved before any distributions or payments could be made to creditors including [the Funder]. This is, of course, the effect of s 116(2) (q) of the Bankruptcy Act 1966 (Cth)…
Against this background, our client has since receipt of your letter of [redacted], been proceeding on the assumption that your clients will not make, or will not cause to be made, any payment under the terms of the Funding Agreement (including as set out above) until the final property settlement orders under s79 of the Family Law Act (and any issues of priority as referred to above) have been determined or resolved and after any necessary transfer of property (including units in the [redacted]) has been made to our client.
Of course, if this was not the case, the Funding Agreement and any actions taken by the trustees could defeat our client’s rights under s79 of the Family Law Act. Accordingly, our client will continue to proceed on the basis that under the Funding Agreement no monies (or other goods, assets, property, services or other benefits) will be dealt with or paid out of the bankrupt estate by or on behalf of the trustees in a way that could defeat our client’s potential rights discussed above. Please let us know as a matter of urgency if the basis on which we are proceeding is incorrect in any way.
117 The response from the solicitors for the Trustees did not provide the requested confirmation. Rather, the then stated position of the Trustees was that they were not “presently in a position to confirm the assumptions set out in your letter”. Further correspondence ensued. On 13 October 2022, the solicitors for the Trustees offered an undertaking to the solicitors for Ms Wright, without conceding Ms Wright’s contentions as to her legal claims and the effect that the Funding Agreement may have on her. It is in the following terms:
17. Subject to [18] and [19] below, the Trustees and our firm will not deal with any property that vests in the Trustees as a result of the Family Court Proceeding and which is the subject of a claim under Part VIII of the Family Law Act, in a way that could defeat [Ms Wright’s] potential rights, until the latest of the following events has occurred:
(a) [Ms Wright’s] Application has been finally determined;
(b) any appeal or application for leave to appeal from such a decision has been determined, or the period in which such an appeal or application may be initiated has expired; and
(c) [Ms Wright’s] Application has been settled.
18. In the event that an order of a court of competent jurisdiction is made, or any action is taken by any person, and that order or action deals with or affects or purports to deal with or affect the Units (including the traceable proceeds thereof) vested in the Trustees, then the Trustees are entitled to take whatever action they reasonably believe is necessary to preserve their rights to that property and to the creditors’ interests therein, but the terms of the Undertakings are not otherwise affected.
19. In the event that the Trustees reasonably form the view that [Ms Wright’s] Application is not being prosecuted expeditiously, then:
(a) the Trustees may give [Ms Wright] seven days’ written notice of that belief; and
(b) the Undertakings will be discharged at noon seven days after the provision of that notice, unless (before that time) the Trustees and [Ms Wright] have otherwise agreed in writing or [Ms Wright] has remedied the failure to prosecute the application expeditiously.
118 This undertaking has not been accepted by Ms Wright as sufficient to satisfy her concerns upon this application. Ms Wright’s submissions turn upon a particular interpretation of s 116(2)(q) of the Bankruptcy Act that is not shared by the Trustees. In their view, if Ms Wright succeeds and the Deed and Declaration of Trust is set aside as a sham or a fraudulent instrument, the units will vest in the bankrupt estate and thereafter s 116(2)(q) will only operate upon property that the trustee “is required” to transfer to her. Until that time, the units will vest in the bankrupt estate pursuant to s 58(1) of the Bankruptcy Act. Put another way, if the Family Court makes an order in favour of Ms Wright, the property so identified is then removed from the divisible assets of the estate.
119 In my view, the answer to the submissions of Ms Wright is that the Trustees do not on this application seek a determination as to the effect of s 116(2)(q) of the Bankruptcy Act and nor do they seek to determine any substantive rights that may arise between them and Ms Wright in the event that, at a future date, Ms Wright succeeds in the Family Court proceeding. First and foremost the Trustees remain bound to comply with each relevant provision of the Bankruptcy Act in their administration of the bankrupt estate. The agreement cannot displace the statutory provisions. The concern raised by Ms Wright is temporal; any Resolution Sum may vest in the bankrupt estate before orders are made in her favour. In the ordinary context where a property settlement order is made before, but not effected prior to, the making of a sequestration order (and is in the nature of an immediate vesting order) the property does not vest in the bankrupt estate by operation of s 116 (2)(a): Jones v Daniel (2004) 141 FCR 148; [2004] FCAFC 278, Hill, Moore and Allsop JJ.
120 Section 116(2)(q) was considered in its interaction with ss 75 and 79 of the Family Law Act by the Full Court of the Family Court in Trustee of the Property of Lemnos v Lemnos (2009) 223 FLR 53; [2009] FamCAFC 20, Coleman, Thackray and Ryan JJ. By s 79(1)(b), in a property settlement proceeding the court may make orders that alter the interests of a bankruptcy trustee in property vested in the trustee. As concluded by the Full Court, the statutory scheme requires it to consider and balance the competing claims of unsecured creditors in the bankrupt estate with the claims of the former spouse.
121 Once that is understood, and with the benefit of the undertaking that has been offered (and which the Trustees maintained before me), I accept the submission as put to me in reply by Mr Maiden, that Ms Wright will have a sufficient opportunity to seek specific, if necessary interim, relief in the Family Court proceeding so as to completely preserve and protect her interests in the event that she succeeds upon her primary contention and before property orders are made in her favour. It will be recalled that Mr Jones Senior gave evidence upon all aspects of the claim made by Ms Wright in the Family Court proceeding and, with appropriate case management, there would not seem to be any impediment to having her property claims concurrently determined with her claim that the Deed and Declaration of Trust should be set aside. In any event, nothing in the advice application if acceded to will prejudice arguments that Ms Wright may seek to make in the Family Court proceeding about how the Funding Agreement may operate to her prejudice and if so, what orders should be made by that court so as to protect her position pursuant to s 79(1)(b) of the Family Law Act.
122 I return to a final submission that is made by Hasst Pty Ltd and which is a variation of the conflict of interest submissions put by the Mr Jones parties. In a separate proceeding in this Court, the trustees make application to disclaim the Funding Agreement between Ms Wright, Hasst Pty Ltd and Mr Jones Senior to the extent that he is a party to it. That proceeding is yet to be determined. The contention is that pursuant to that funding agreement, Mr Jones Senior was bound, and the Trustees remain bound, not to enter into any conflicting agreement in relation to the Family Court proceeding and to pay the fruits of that litigation, if received and described as the “Success Sum”. The contention is that by entering into the Funding Deed, the Trustees breached their obligations owed to Hasst Pty Ltd in that they will receive any Resolution Sum, partly for their financial benefit in the form of their fees relating to the conduct of the Family Court proceeding. Further, in those circumstances there is a conflict between the provisions of the Funding Agreement and the Hasst Pty Ltd agreement and, despite these matters, the Trustees have purported to disclaim the Hasst Pty Ltd agreement in order to avoid a potential personal liability for breach of contract. As such, the submission is that relief should be denied to the Trustees in circumstances where they have “a clear and continuing conflict of interest”.
123 The Trustees do not accept these contentions. Their position as outlined in their solicitor’s correspondence is that the trustees personally are not parties to the Hasst Pty Ltd agreement, have not adopted it and in consequence are not personally bound to comply with any obligations that Mr Jones Senior may have had pursuant to it. Accordingly, the separate proceeding raises no question of personal liability that the trustees may have. Further, there is no question of conflict of interest in that the trustees do not have any personal interest in that agreement.
124 It is not necessary that I interrogate the merit of these competing arguments. The simple point upon this application is that the judicial advice that is sought by the trustees does not resolve these claims. The Trustees do not seek a substantive determination as to the meaning and effect of the Hasst Pty Ltd agreement, whether it conflicts with the Funding Agreement, or as to what might or will be the rights of Hasst Pty Ltd and the Trustees in the event that the Family Court makes orders the effect of which is to vest the units in the bankrupt estate. They do not seek, as correctly submitted by Mr Maiden, “…carte blanche in respect of actions they might take following the determination of this application, being actions outside the scope of the issues presently before the Court”. Further, as I have noted, the exoneration that the Trustees seek is confined to claims or potential claims as identified in the affidavit material relied upon by the Trustees. That material does not open for inquiry and advice any potential conflict between the provisions of the Funding Agreement and the Hasst Pty Ltd agreement.
125 I deal next with the submissions of the Trustees in support of their application, and as supported by the submissions of Mr Galvin for AFC Pty Ltd. It is not, in my view, simply sufficient to conclude that I should exercise my discretion in favour of the Trustees, having determined that there is no material matter in the submissions put by the opposing parties, considered individually and as a whole, that I should not do so. In my view it is important to consider the entire circumstances of this proceeding mindful of the need to approach the questions cautiously and, as it is sometimes put, to act conservatively. Whether those cautions have survived Macedonian Church is not something that I find necessary to determine because, as I will explain, I am positively satisfied that a form of relief should be granted in favour of the Trustees.
126 I have found that the Trustees bring this proceeding in good faith and that their participation in the Family Court proceeding is likely to be of benefit for the creditors as a whole of the bankrupt estate. That will certainly be the case if a significant Resolution Sum within the meaning of the Funding Agreement is secured. But, as I have also accepted, even if the expectation of the Trustees turns out to have been overly sanguine as to the likely quantum of recovery, or the proceeding fails, there is not likely to be any overall detriment to the interests of the creditors as a whole. Although it is the case that the Trustees resolved to enter into the Funding Agreement without seeking judicial advice, ignored the condition precedent to obtain approval from this Court (and chose not to seek it from the creditors) and that there has been a significant period of unexplained delay between April 2020 and October 2021, I do not consider that these factors operate to require the application to be dismissed. They certainly have relevance in the balancing exercise, but are not dispositive once it is accepted, and as I have found, the Trustees would not be able to actively participate in the Family Court proceeding without litigation funding, the Funding Agreement is commercially realistic and, importantly, the entire risk of the Trustees’ costs of the Family Court proceeding is thrown upon the Funder, including any adverse costs order that may be made against the Trustees.
127 Further, in my view, it is necessary for the Trustees to be active participants in the Family Court proceeding even though on one view, and to the point of decision as to whether the Deed and Declaration of Trust should be set aside, their interests elide with those of Ms Wright. There is obvious force in the criticism, supported by the findings of the Appeal Division of the Family Court, that they should not have participated to the extent that they did in the Full Court appeal, but that is not presently to the point. What I am concerned with is whether it was proper, in all of the circumstances, for the Trustees to enter into the Funding Agreement. The present application is not concerned with the degree of their participation or how they choose, from time to time, to conduct themselves in the litigation. Objecting creditors in the bankruptcy administration have rights that are available to them to review the degree of participation of the Trustees and the costs incurred in consequence pursuant to ss 90-10 and 90-15 of the Insolvency Practice Schedule.
128 Nor is it an answer to this application to point to the fact that the Trustees were not obliged to make it and, on their own admission, they will continue to implement its terms even if the present application fails. The reason why the Trustees bring this application is obvious: as trustees they are concerned about claims that they have breached their duties or have acted to take advantage of a conflict of interest. They maintain, and ask the Court to determine, that in April 2020 they acted properly, in good faith in the best interests of the creditors as a whole and that they should be exonerated from claims that they breached their statutory or fiduciary duties to the creditors. In my view, and for the detailed reasons I have given, I am not persuaded that the potential claims of breach and conflict that the opposing parties identify are of such significance as to refuse the application for relief. Moreover, as I have explained, exoneration in consequence of the granting of judicial advice is an ordinary incident of the summary procedure: it is not of itself a reason to refuse relief.
129 I am satisfied that there is no appreciable risk to the creditors of the bankrupt estate as a whole due to the decision to enter into the Funding Agreement. Without that agreement, there is the real likelihood that the creditors may be disadvantaged because the Trustees would not otherwise be able to actively participate in the Family Court proceeding. For example, there is the risk that Ms Wright may seek to enter into a settlement with Mr Jones and, despite the fact that the Trustees are parties to the proceeding and will most likely be given notice of any intended settlement, without active participation they will not in my assessment be able to substantively contest the terms of a settlement before it is agreed to so that the interests of the creditors as a whole of the bankrupt estate may be advanced.
130 I am satisfied that the Funding Agreement does not provide for an inappropriate, or exorbitant, return to the Funder having regard to the risks of the litigation, the costs risk of the Funder and that in particular the rate of commission and its method of calculation is not commercially inappropriate in accordance with the evidence of Mr Bianco.
131 I am required to undertake a balancing exercise, informed by the general principles that I have set out, but most particularly by the decision of the High Court in Macedonian Church, though it must be borne in mind that the exercise of the discretion that is sought to be invoked by the Trustees necessarily depends on particular facts and circumstances of this case. Overall, I am satisfied that it is in the best interests of the creditors of the bankrupt estate that the Trustees actively participate in the Family Court proceeding and that the Funding Agreement, on appropriate terms, permits them to do so.
132 On balance I am satisfied that limited relief ought to be given to the Trustees in the form of a declaration that they were justified in entering into the litigation funding agreement with AFC Pty Ltd dated 14 April 2020. In my view, it is not appropriate to go further and to declare that they were also justified in implementing that agreement: I have considered the entirety of the terms of the agreement as a component of my consideration as to whether it was proper for the Trustees to enter into it. Had I concluded that any of the terms of the agreement were inappropriate, or improper, it follows that I would not have reached my primary conclusion.
133 Additionally, the Trustees seek an order that to the extent that entry into the Funding Agreement “involved a breach of trust” that they be relieved from personal liability pursuant to s 67 of the Trustee Act 1958 (Vic) which provides:
Power to relieve trustee from personal liability
If it appears to the Court that a trustee, whether appointed by the Court or otherwise, is or may be personally liable for any breach of trust, whether the transaction alleged to be a breach of trust occurred before or after the commencement of this Act, but has acted honestly and reasonably, and ought fairly to be excused for the breach of trust and for omitting to obtain the directions of the Court in the matter in which he committed such breach, then the Court may relieve him either wholly or partly from personal liability for the same.
134 I am not prepared to grant this additional relief. As I have explained the effect of my judicial advice, framed in the form of declaratory relief, is to exonerate the Trustees from personal liability arising from their entry into the Funding Agreement to the extent that full disclosure has been made. It is not necessary therefore to go further in the particular circumstances of this case.
135 And as I raised with counsel during oral argument, it is difficult to see how this power might be exercised in this case where, as here, no actual finding of breach of trust has been made and which might be capable of amelioration in the exercise of this power.
CONCLUSION
136 For these reasons, I declare and order as follows:
1. The following pseudonyms be used in this proceeding:
(a) Mr Bianco and Mr Rossi, the Trustees of the bankrupt estate;
(b) Mr Jones Senior, the deceased bankrupt;
(c) The Bankrupt Estate of Mr Jones Senior (Deceased), the bankrupt estate that is being administered;
(d) Ms Wright, the former spouse of Mr Jones Senior;
(e) Logan Property Investments Pty Ltd, an entity associated with Ms Wright;
(f) ABC Pty Ltd, a creditor of the estate;
(g) ACN Pty Ltd as trustee for the M Trust, a creditor of the estate;
(h) MTA Pty Ltd as trustee for the T Trust, a creditor of the estate;
(i) Mr Jones, the son of Mr Jones Senior;
(j) Mr Jones’ creditors, the creditors of Mr Jones;
(k) AFC Pty Ltd as trustee for the AFC Discretionary Trust, a litigation funder; and
(l) Hasst Pty Ltd, a litigation funder.
2. The Trustees of the bankrupt estate of Mr Jones Senior were justified in entering into a litigation funding agreement on 12 April 2020 with AFC Pty Ltd as Trustee for the AFC Discretionary Trust in the form of the document exhibited at pages 137 – 159 of the exhibit to the confidential affidavit of Mr Bianco made in this proceeding on 30 September 2021.
3. The matter is adjourned for further submissions, or hearing if necessary, all questions of consequential orders or relief that may be necessary to give effect to these orders, including the resolution of any claims for the costs of this proceeding;
4. Any application for further orders is to be made in writing within 7 days of the publication of these reasons, supported by any affidavits to be relied upon and an outline of submissions, which outline is not to exceed three pages in length.
5. All questions of consequential orders will be determined on the papers, unless the Court otherwise orders.
I certify that the preceding one hundred and thirty-six (136) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McElwaine. |
SCHEDULE OF PARTIES
VID 562 of 2021 | |
ACN PTY LTD AS TRUSTEE FOR THE M TRUST | |
Fifth Interested Person: | MTA PTY LTD AS TRUSTEE FOR THE T TRUST |
Sixth Interested Person: | MR JONES |
Seventh Interested Person: | MR JONES' CREDITORS |
Eighth Interested Person | AFC PTY LTD AS TRUSTEE FOR THE AFC DISCRETIONARY TRUST |
Ninth Interested Person | HASST PTY LTD |
