FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v Letten (No 29) [2023] FCA 315

ORDERS

THE COURT ORDERS THAT:

1.    Compliance with r 7.5(5)(b) of the Federal Court (Corporations) Rules 2000 (Cth) with respect to the 18th and 20th Defendants is dispensed with, nunc pro tunc.

2.    Pursuant to s 481 of the Corporations Act 2001 (Cth) (the Act):

(a)    Damian John Templeton (the Receiver) is released as liquidator of each of the companies named in Annexure A to this order (the Companies); and

(b)    the Australian Securities and Investments Commission deregister each of the Companies.

3.    Pursuant to s 1323(5) of the Act, the order of the Court specified in Annexure C to this order is discharged insofar as it relates to the property of each of the Companies.

4.    Pursuant to s 601EE of the Act, the sum of $95,100, being unclaimed distributions from the Common Fund established pursuant to the orders of the Honourable Justice Gordon made in this proceeding on 11 November 2010 (the Common Fund), be transferred to the Australian Securities and Investments Commission to be dealt with under Pt 9.7 of the Act.

5.    Pursuant to s 601EE of the Act, the Receiver is released as receiver and manager of the unregistered investment schemes described in Annexure B to this order.

6.    The Receiver’s costs of the application made by Interlocutory Process filed on 28 November 2022, as fixed by the orders of Judicial Registrar Luxton made on 12 July 2022, be paid out of the Common Fund.

ANNEXURE A

ANNEXURE B

1.    The following unregistered managed investment schemes listed in the Table in Annexure A of the orders of the Honourable Justice Gordon made on 25 February 2010:

2.    The unregistered managed investment scheme referred to in Annexure A of the orders of the Honourable Justice Gordon made on 4 March 2010 as the SY21 Retail Complex Project.

ANNEXURE C

1.    Paragraph 3 of the orders of the Honourable Justice Gordon made on 25 February 2010.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BUTTON J

BACKGROUND

1    It is beyond the scope of these Reasons to attempt to explain the factual background to the long-running receiverships and liquidations relating to operations associated with the first defendant, Mr Letten. It suffices, for present purposes, to note the following:

(a)    On 25 February 2010, this Court made orders appointing Damian John Templeton (the Receiver) and Philip Arthur Hennessy as joint and several receivers and managers of the property of various unregistered managed investment schemes.

(b)    Their appointment was then expanded by further orders made on 4 March 2010 in relation to funds invested, contributed or deposited by investors in relation to a project known as the “SY21 Retail Complex Project”, and again on 30 July 2010 in relation to another group of unregistered managed investment schemes.

(c)    Ultimately, there were more than 50 corporate defendants to the proceeding.

(d)    On 11 November 2010, this Court made what are referred to as the Pooling Orders. The reasons of Gordon J (as her Honour then was) are set out in detail in Australian Securities and Investments Commission v Letten (No 7) (2010) 190 FCR 59 (Letten (No 7)). In essence, the orders recognised that the funds of the various Letten-related schemes had become so mixed that it was uneconomic to attempt to disentangle them. The Pooling Orders provided for the order of priority in which payments were to be made out of the Common Fund (which was constituted by the balance of the pooled funds once priority payments had been made).

(e)    The Receiver and Mr Hennessy were appointed as joint and several liquidators of the various corporate defendants by orders made on 13 May 2011 and 4 November 2011.

(f)    On 29 April 2015, Mr Hennessy was discharged from his appointment as receiver and manager, and subsequently resigned as liquidator of the corporate defendants, from which time the Receiver was the sole office-holder.

(g)    On 6 August 2020, the Receiver was released as liquidator of the majority of the corporate defendants, which were also ordered to be deregistered by ASIC (as has occurred). The Receiver was also discharged and released as receiver and manager of the property of a number of schemes.

2    The present application was made by Interlocutory Process filed on 28 November 2022. In summary, it seeks relief of the kind ordered on 6 August 2020 in respect of the remaining schemes and corporate defendants not already dealt with by those orders. Additional orders were sought relieving the Receiver from compliance with certain of the rules set out in the Federal Court (Corporations) Rules 2000 (Cth) (the Rules) (where compliance would be otiose in the circumstances).

3    For convenience and consistency, I will refer to Mr Templeton as the Receiver, even when referring to him in his capacity as liquidator.

THE POSITION OF ASIC, MR LETTEN AND INVESTORS

4    ASIC and Mr Letten (both parties to the proceeding) were given notice of the Receiver’s interlocutory application and confirmed that they did not wish to be heard on it. The Receiver had also communicated with ASIC regarding the orders he proposed to seek regarding certain unclaimed moneys (set out in more detail below).

5    Investors in the schemes were also notified of the Receiver’s interlocutory application, pursuant to a notification regime set out in orders made on 27 February 2023. Those orders provided for any investor who wished to do so to file and serve a submission setting out any objection to the orders sought by the Receiver. No investor has raised any objection.

6    Accordingly, no objection has been raised by any interested person to the orders sought by the Receiver. For the reasons which follow, I consider it appropriate to make orders as sought by the Receiver. The making of these orders will finally bring this complex and long-running proceeding to an end.

RELIEF UNDER S 481 OF THE CORPORATIONS ACT

7    Section 480 of the Corporations Act 2001 (Cth) (the Corporations Act) relevantly provides that a liquidator who has completed the realisation and distribution of the company’s property may apply to the Court for an order that he or she be released, and that ASIC deregister the company. The Court is empowered by s 481(1)(c) to grant such a release. An order made releasing a liquidator will, pursuant to s 481(3)–(4), discharge the liquidator from liability in respect of his or her conduct in that office (unless revoked) and operates to remove the person from office as liquidator.

8    The Receiver seeks orders that ASIC deregister, and that he be released as liquidator of, the following companies: the 2nd, 3rd, 6th, 7th, 10th, 11th, 12th, 13th, 18th, 20th, 21st and 29th defendants (the Relevant Entities).

9    As outlined above, the Receiver was appointed as joint and several liquidator (with Mr Hennessy) of the Relevant Entities (along with many other companies) by orders made on 13 May 2011 and 4 November 2011. Mr Hennessy subsequently resigned as liquidator of these companies. Orders were made releasing the Receiver as liquidator of many of the defendant companies on 6 August 2020, and that those companies be deregistered by ASIC, but those orders did not cover the Relevant Entities. Accordingly, the Receiver now seeks release orders in respect of the Relevant Entities.

10    Mr Templeton has deposed that, at the time of his appointment, none of the 3rd, 6th, 7th, 12th, 13th, 18th, 20th, 21st and 29th defendants had any property other than property held as trustee for a scheme. Mr Templeton also deposed that the 11th defendant had no property at the time of his appointment. Accordingly, none of those companies had realisable property.

11    Of the Relevant Entities, only the 2nd and 10th defendants had any realisable property at the time of the Receiver’s appointment. Mr Templeton has deposed that all such property has been realised, and that no dividends have been paid in the course of the winding up other than the payment of funds by the 10th and 21st defendants to the Common Fund established by the Pooling Orders (see Letten (No 7)).

12    On this basis, I am satisfied that the precondition (set out in s 480(a)) to the making of an application for the release of a liquidator and the deregistration of a company, is satisfied in respect of each of the Relevant Entities.

13    I am also satisfied that there is no occasion on which to order that a report be prepared by an auditor on the accounts of the Receiver pursuant to s 481(1)(a) of the Corporations Act. Such a power is not ordinarily exercised unless there is some credible basis for the Court to believe that a case for default may be made out: see Nut Trading Co (Aust) Pty Ltd v KKL (Kangaroo Line) Pty Ltd (1997) 25 ACSR 580 at 618–19 (Einstein J). There is no such basis in the present case.

14    As stated by Black J in Re RR Impex Pty Ltd (in liq) [2013] NSWSC 1667 (Impex) at [3], the Court will ordinarily make orders releasing the liquidator, provided that the Court is satisfied that the relevant notifications have been given, no creditors have objected or raised a concern as to the liquidator’s performance of his or her duties, the other evidence contemplated by the relevant rules is before the Court, and no other reason has emerged why the Court should not make the order. An order for deregistration will normally be sought and made together with the order for the liquidator’s release: Impex at [3], citing Re Austral Family Homes Pty Ltd (in liq) (1992) 28 NSWLR 247.

15    The relevant rules are rr 2.8 and 7.5 of the Rules.

16    Rule 2.8 requires service on ASIC of the originating (or interlocutory) process and supporting affidavit. Mr Templeton has deposed that ASIC was so served. As noted, it has not raised any objection.

17    Rule 7.5 sets out the matters required to be addressed in an affidavit supporting an application for an order under s 480(d). Counsel for the Receiver provided, in his written submissions, a table identifying the paragraphs of Mr Templeton’s 67th affidavit sworn on 25 November 2022 addressing each of the matters required to be addressed, in respect of each of the Relevant Entities. Accordingly, the requirements of r 7.5(3) have been satisfied, where they apply.

18    The Receiver also deposed (as required by r 7.5(4)) that:

(a)    to the best of his belief, there has been no act done or default made by him in the administration of the affairs of the Relevant Entities or otherwise in relation to his conduct as liquidator or receiver which is likely to give rise to any liability to the Relevant Entities or any creditor or contributory; and

(b)    he is not aware of any claim made by any person that there has been any such act or default.

19    On the Receiver having complied with rr 2.8 and 7.5 of the Rules, I am required, by s 481(b), to take into account any objection against the release of the Receiver (as liquidator) made by any creditor, contributory or other person interested. As I have noted, no such objection has been made.

20    Accordingly, and having regard to the principles set out in Impex, referred to above, I am satisfied that orders should be made pursuant to s 481 of the Corporations Act in respect of each of the Relevant Entities.

ORDER PURSUANT TO S 1323(5) OF THE CORPORATIONS ACT

21    An order was made by Gordon J on 25 February 2010 appointing the Receiver and Mr Hennessy as joint and several receivers and managers of the property of the 2nd to 16th and 18th to 45th defendants, other than property that also constitutes property of a Scheme (as defined in those orders). That order, being paragraph 3 of the 25 February 2010 orders, was made pursuant to s 1323(1)(h)(ii) of the Corporations Act. The order did not contain any provision as to the period for which it was to operate, and no express orders were made discharging the receivership order at the time that orders were made in 2011 appointing the Receiver and Mr Hennessy as liquidators of (amongst others) the 2nd to 16th and 18th to 45th defendants.

22    The Receiver submitted that, for practical purposes, the purposes of the receivership order were spent by the time the winding up orders were made on 13 May 2011 and 4 November 2011. While, as the Receiver submitted, the receivership orders may have been discharged by necessary implication (by the making of the winding up orders), he seeks an order under s 1323(5) for the avoidance of doubt.

23    Section 1323(5) provides that, where the Court has made an order under this section on a person’s application, the Court may, on the application by that person or by any person affected by the order, make a further order discharging or varying the first-mentioned order.

24    The Receiver applies, as a person affected by the relevant order made by the Court under s 1323, for an order that “the order [made in paragraph 3 of the orders of the Honourable Justice Gordon made on 25 February 2010] be discharged insofar as it relates to the property of each of the [Relevant Entities]”.

25    I accept the submissions of the Receiver that the effect of the relevant order was effectively spent upon the winding up orders having been made, and that it is appropriate in the circumstances to make the order sought.

ORDER PURSUANT TO S 601EE OF THE CORPORATIONS ACT

26    As noted, on 25 February 2010, the Court made orders which, inter alia, appointed the Receiver (and Mr Hennessy) as joint and several receivers and managers of the property of various unregistered managed investment schemes identified in Annexure A to those orders. The appointment orders also provided for the Receiver to commence the orderly winding up of those schemes.

27    The Receiver now seeks an order that, pursuant to s 601EE of the Corporations Act, he be released as receiver and manager of the following investment schemes, as identified in Annexure A of the orders of 25 February 2010:

(a)    211 Wellington Road Joint Venture;

(b)    George Street Joint Venture;

(c)    Cimitiere House Joint Venture;

(d)    Reef House Resort;

(e)    Low Head Joint Venture;

(f)    Nicholson Street Joint Venture;

(g)    The Glen Centre Joint Venture;

(h)    Twinview Joint Venture;

(i)    Yarra Valley Golf Joint Venture; and

(j)    Glenbelle Project.

28    These schemes (the Relevant Schemes) form a subset of the set of schemes that were the subject of the appointment orders made by the Court on 25 February 2010. On 6 August 2020 Davies J made orders (under s 601EE, alternatively under s 1323(5)) releasing the Receiver and discharging him as receiver and manager of the property of the unregistered managed investment schemes set out in a schedule to that order. The Relevant Schemes were not captured by that order.

29    Section 601EE(2) empowers the Court to make any orders it considers appropriate for the winding up of an unregistered managed investment scheme. This provision empowers the Court to order the release of persons appointed under the section to wind up unregistered managed investment schemes: Re Idylic Solutions Pty Ltd [2018] NSWSC 700 (Re Idylic Solutions) at [3] (Black J); Australian Securities & Investments Commission v Piggott Wood & Baker (A Firm) (No 7) [2023] FCA 193 (Piggott Wood & Baker) at [10] (McElwaine J). The same matters as are relevant in an application for release under ss 480 and 481 of the Corporations Act are relevant to an application for release under s 601EE: Re Idylic Solutions at [3].

30    The Receiver has deposed that all property of the Relevant Schemes that was capable of realisation has been realised, and has detailed the dividends paid to investors, up to the final dividend on 6 December 2021. The Receiver also deposed to the various matters referred to in rr 7.5(3), 7.5(4) and 7.5(5)(b) (applied by analogy to the application for release as a receiver and manager) in respect of the Relevant Schemes, where applicable. The relevant paragraphs of the Receiver’s affidavit addressing each such matter were set out in the Receiver’s submissions and need not be repeated. The matters to which the Receiver deposed included that:

(a)    to the best of his belief, there has been no act done or default made by him in the administration of the affairs of the Relevant Schemes, or otherwise in relation to his conduct as receiver, which is likely to give rise to any liability to the Scheme or any creditor or investor; and

(b)    he is not aware of any claim made by any person that there has been any such act or default.

31    On the basis of the evidence before me and the Receiver’s submissions, I am satisfied that all relevant persons have been notified of the Receiver’s application, no person has raised any objection to his release, no person has raised a concern as to the performance by the Receiver of his duties, and nothing has emerged that indicates the Court should not make the orders sought and it is appropriate to do so.

ORDERS RELATING TO UNCLAIMED MONEYS

32    Mr Templeton’s affidavit set out the distributions that have been made to investors pursuant to the orders made by Gordon J establishing the Common Fund, and the order of priority in which payments were to be made out of that fund. Four distributions to investors were made, with the first occurring on 28 May 2013, and the fourth on 6 December 2021.

33    However, a number of investors have not claimed the amounts owing to them under the four distributions (the Relevant Investors), as the Receiver did not have up-to-date bank account details or addresses to which he could send dividend cheques. The total amount unclaimed is approximately $95,100. The Receiver deposed that that amount represents approximately 0.73% of the total amount distributed to investors. He also deposed that he did not believe that the unclaimed moneys should prevent the finalisation of the receivership. I agree.

34    The Receiver has detailed the steps taken to try and contact the Relevant Investors. I am satisfied that the steps taken were reasonable and sufficiently comprehensive.

35    From late 2021, the Receiver, through his solicitors, has corresponded with ASIC regarding how the unclaimed funds should be dealt with. ASIC was informed that the Receiver proposed to make an application to the Court seeking an order that ASIC accept the unclaimed moneys and deal with them under Pt 9.7 of the Corporations Act. ASIC sought further detail of the proposal and, by letter dated 22 November 2022, indicated that it did not presently consider that it would oppose the relief foreshadowed or seek to be heard. The present Interlocutory Process (dated 25 November 2022) was filed on 28 November 2022, shortly after this advice was received from ASIC. As already noted, ASIC was served with the Interlocutory Process and supporting affidavit, and did not seek to be heard.

36    Part 9.7 of the Corporations Act provides that unclaimed property held by ASIC “is to be dealt with in accordance with this Part” (s 1339). Here, the unclaimed property is money. Section 1341(1) provides that:

(1) If:

(a) unclaimed property is or was held by ASIC; and

(b) the unclaimed property is an amount of money; and

(c) a person claims to be entitled to that amount; and

(d) ASIC is satisfied that the person is entitled to that amount;

ASIC must:

(e) pay the person an amount equal to that amount; and

(f) do so out of money appropriated by the Parliament for the purposes of this section.

37    Section 1341(3) also provides for a person who is dissatisfied with the decision of ASIC in respect of a claim to appeal to the Court.

38    As will be apparent, were the unclaimed moneys paid over to ASIC, to be held by it as unclaimed property pursuant to Pt 9.7, that will not alter the entitlement of the Relevant Investors to claim moneys due to them as distributions from the Common Fund.

39    The Receiver submitted that the Court has the power to make an order under s 601EE to direct how unclaimed moneys arising from the winding up of an unregistered scheme should be disposed of. He submitted that such an order is clearly an order “for the winding up of the scheme” within the terms of that section.

40    The Receiver properly drew my attention to the decision of Austin J in Australian Securities and Investments Commission v Tasman Investment Management Ltd (2006) 59 ACSR 113 (Tasman). In that case, Austin J considered the bounds of the Court’s statutory and inherent powers in relation to the winding up of unregistered schemes which, unlike the winding up of companies, are not the subject of a detailed statutory scheme. As his Honour observed, there is only a single, short, section addressing the winding up of unregistered schemes: s 601EE. Section 601EE(2) gives the Court the power to make any orders it considers appropriate for the winding up of the scheme. In Tasman, Austin J considered that the Court’s statutory and inherent powers “do not generally permit it to make orders that depart from the proprietary rights of the scheme’s participants”: at [21]. His Honour rejected a submission that “s 601EE(2) authorises the court to approve a distribution program whether or not the proposal reflects the proprietary rights of those involved” (at [21]), and found that s 601EE(2) “does not, in terms, authorise the court to sanction a scheme of distribution that overrides existing proprietary rights” (at [22]).

41    The issues that concerned Austin J in Tasman do not present an obstacle to the order sought by the Receiver in this case. Tasman, and other authorities, were considered comprehensively by Gordon J in making the Pooling Orders in Letten (No 7). It is not necessary to revisit those reasons. The important point, for present purposes, is that the Pooling Orders were made, and the rights of the investors to share in distributions from the Common Fund were established by the orders of Gordon J made on 11 November 2010. The investors’ rights to share in distributions from the Common Fund derive from those orders, and not from the constitutions of the original schemes (or other constituting agreements), and the payment of the unclaimed moneys to ASIC will not disturb the Relevant Investors’ rights to claim funds to which they are entitled.

42    The question of whether s 601EE(2) permits the making of an order for the payment to ASIC of unclaimed moneys held by a liquidator of an unregistered scheme, on the basis that the funds are to be dealt with by ASIC under Pt 9.7, was considered by McElwaine J in Piggott Wood & Baker. The particular question that his Honour considered was whether the reference in paragraph (a) of the definition of unclaimed property constrains its application to provisions which expressly provide for property to be transferred to ASIC to be dealt with under Pt 9.7 (eg s 544). The term “unclaimed property” is defined by s 9 as follows:

unclaimed property means:

(a)     property paid or transferred to ASIC under a provision of this Act that provides for property to be transferred, or for the Court to direct that property be transferred, to ASIC to be dealt with under Part 9.7; or

(b)     any other property that a provision of this Act provides for ASIC to deal with under Part 9.7; or

(c)     property that vests in ASIC under section 1404; or

(d)     an accretion to, or substitution for, property that is unclaimed property because of any other application or applications of this definition.

43    In Piggott Wood & Baker, McElwaine J considered the difficulties to which Austin J referred in Tasman and said (at [17]):

No difficulty of that character arises in this case. The investors and the proportionate entitlements are known: the problem is that the investors cannot be located or have chosen for whatever reason not to bank dividend cheques …

44    The same is true in the present case. The investors, and their entitlements pursuant to the Pooling Orders, are known; the issues lie in the inability of the Receiver to effect payment to the Relevant Investors due to lack of up-to-date bank information or communication issues.

45    Justice McElwaine went on to consider the breadth of the power conferred by s 601EE(2) as follows (at [18]):

It is important in my view not to read into the broad conferral of power at s 601EE(2) limitations that are not expressed, more so as this is the only provision that confers power to make facilitating orders in the winding up of an unregistered managed investment scheme: see The Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc. (1994) 181 CLR 404 at 421. The power is to make any orders that are considered appropriate for the winding up of an unregistered scheme. An order which relates to unclaimed money the property of individual investors which is protective in effect is in my view within the statutory power. In this case it is obviously appropriate that facilitating orders be made so that the liquidation of the Business can be finalised in a manner that preserves the entitlements of individual investors to make claims despite finalisation. Part 9.7 of the Act is the collection of provisions that deal with unclaimed property. In the liquidation of a registered scheme, it expressly applies to unclaimed scheme money or property: s 601NG. There is no logical reason why unclaimed money or property of an unregistered scheme should be dealt with differently.

46    I agree with his Honour’s observations regarding s 601EE(2) and consider that it is appropriate to make orders in the terms sought by the Receiver, which avoid the costs of unnecessarily continuing the receivership, while protecting the interests of the Relevant Investors.

RELIEF FROM COMPLIANCE WITH RULES 7.5.5(A) AND (B), AND RULE 7.5(6)

47    On 27 February 2023, I made orders granting the Receiver relief from complying with:

(a)    rules 7.5(5)(a) and (6) in respect of all of the Relevant Entities; and

(b)    rule 7.5(5)(b) in respect of the 3rd, 6th, 7th, 11th, 12th, 13th, 21st and 29th defendants.

48    Rule 7.5 sets out various requirements applicable where a liquidator applies for release and deregistration of companies under s 480(c) or (d) of the Corporations Act.

49    Relief from compliance with r 7.5(6) was appropriate as the only potentially relevant persons, so far as the interlocutory application was concerned, were:

(a)    the Secured Lenders, being financiers who held security over property of a scheme or corporate defendant;

(b)    Mr Letten;

(c)    ASIC; and

(d)    investors in the schemes (the Investors).

50    The Receiver sought, and the Court granted, orders for an alternate service regime so far as the Investors were concerned, and to relieve the Receiver, in his capacity as liquidator, from compliance with the service requirements of r 7.5(6). The Court was informed that the Secured Lenders, ASIC and Mr Letten had been served with the Receiver’s interlocutory application in the ordinary course. Accordingly, no specific orders for service were made concerning them.

51    It was appropriate that the Receiver, in his capacity as liquidator, be released from complying with r 7.5(5)(a) in respect of his application to be released as liquidator of the Relevant Entities.

52    Rule 7.5(5)(a) provides that a liquidator must file with, or annex to, the affidavit supporting an application under (relevantly) s 480(d) of the Corporations Act, a statement of the financial position of the company at the date when the Interlocutory Process seeking release was filed.

53    Mr Templeton deposed, in respect of the 2nd and 10th defendants (which were not trustees of any schemes), that the lists of receipts and payments he exhibited to his 67th affidavit set out the financial position of those entities. I accept that that is the case, and that there is no further information that could relevantly be provided by a statement of the financial position of those two companies.

54    In respect of the balance of the Relevant Entities, Mr Templeton has deposed that there would be no utility in preparing a statement of financial position as the 3rd, 6th, 7th, 11th, 12th, 13th, 21st, and 29th defendants held no property (other than scheme property held on trust). I accept that this is the case and that the Receiver ought to be excused from compliance in respect of these companies.

55    In relation to the 18th and 20th defendants, Mr Templeton deposed in his 67th affidavit that, at the time of his appointment, those defendants had unpaid liabilities which had been incurred in the performance of their functions as trustee and manager of some of the schemes. In Australian Securities and Investments Commission v Letten (No 17) (2011) 286 ALR 346, Gordon J held that those entities did not have a realisable right of indemnity in respect of those debts as the right of indemnity was offset by their liability to compensate the schemes in question for breaches of trust. The issue arose because the Court was asked whether or not the Receivers (then there were two appointees) would be justified in paying over funds to the liquidators of the 18th and 20th defendants from the proceeds of the sale of trust property, in order to meet those (and some other) claims. The basis on which that dispute was before Gordon J was that those entities held their property as trustees (cf having non-trust assets). Accordingly, it appears that the 18th and 20th defendants also had no property in their non-trustee capacity that was capable of being realised on the winding up. This was later expressly confirmed by a further affidavit of Mr Templeton, being his 68th affidavit sworn on 4 April 2023. Mr Templeton further deposed in his 68th affidavit that no moneys had been received or paid in the course of the winding up of those entities (amongst others). For these reasons, I accept that there would be no utility in the Receiver having prepared a statement of financial position.

56    It was also appropriate that the Receiver, in his capacity as liquidator, be released from complying with r 7.5(5)(b) in respect of the 3rd, 6th, 7th, 11th, 12th, 13th, 21st and 29th defendants.

57    Rule 7.5(5)(b) would otherwise require that the Receiver file with his application, or annex, a summary of the liquidator’s receipts and payments in winding up each of those companies. Mr Templeton has deposed that, for each of these entities, any summary of receipts and payments would show “nil” receipts or payments. Accordingly, there is no utility in such a summary being prepared and the orders made on 27 February 2023 excused the Receiver from compliance with that requirement.

58    While the 18th and 20th defendants were not initially included in the application for relief from compliance with r 7.5(5)(b), an order relieving the Receiver from compliance with that rule was sought along with final orders disposing of the Interlocutory Process. As noted, the 18th and 20th defendants did not hold any property other than property as trustee. The Receiver deposed that, for the 18th and 20th defendants, he has not prepared a summary of his receipts and payments in the winding up, as such a summary would show “nil” receipts or payments. Accordingly, there is no utility in such a summary being prepared, and it is appropriate that an order be made relieving the Receiver, nunc pro tunc, from compliance with r 7.5(5)(b) in respect of the 18th and 20th defendants.

59    Investors were, in any event, served with Mr Templeton’s 67th affidavit and so were apprised of the position so far as each of the Relevant Entities is concerned. For those of the Relevant Entities which were trustees of schemes, Mr Templeton’s affidavit annexes lists of payments and receipts for each such entity in its trustee capacity.

COSTS OF THE INTERLOCUTORY APPLICATION

60    The final order sought by the Receiver was an order that his costs of the interlocutory application be paid out of the Common Fund. I consider it appropriate to make such an order. Pursuant to the Pooling Orders, fees, costs and expenses incurred by the Receiver are to be paid out of the Common Fund, with the amounts fixed by the Court. The Receiver has made six applications to the Court for approval of remuneration, costs and expenses incurred in the course of the receivership, the last of which, inter alia, prospectively addressed costs incurred in the making of this interlocutory application. Orders were made by Luxton JR on 12 July 2022 fixing the Receiver’s remuneration in relation to the final remuneration application.

ORDERS

61    Orders will be made in the following terms:

1.    Compliance with r 7.5(5)(b) of the Federal Court (Corporations) Rules 2000 (Cth) with respect to the 18th and 20th Defendants is dispensed with, nunc pro tunc.

2.    Pursuant to s 481 of the Corporations Act 2001 (Cth) (the Act):

a.    Damian John Templeton (the Receiver) is released as liquidator of each of the companies named in Annexure A to this order (the Companies); and

b.    the Australian Securities and Investments Commission deregister each of the Companies.

3.    Pursuant to s 1323(5) of the Act, the order of the Court specified in Annexure C to this order is discharged insofar as it relates to the property of each of the Companies.

4.    Pursuant to s 601EE of the Act, the sum of $95,100, being unclaimed distributions from the Common Fund established pursuant to the orders of the Honourable Justice Gordon made in this proceeding on 11 November 2010 (the Common Fund), be transferred to the Australian Securities and Investments Commission to be dealt with under Pt 9.7 of the Act.

5.    Pursuant to s 601EE of the Act, the Receiver is released as receiver and manager of the unregistered investment schemes described in Annexure B to this order.

6.    The Receiver’s costs of the application made by Interlocutory Process filed on 28 November 2022, as fixed by the orders of Judicial Registrar Luxton made on 12 July 2022, be paid out of the Common Fund.

ANNEXURE A

ANNEXURE B

1.    The following unregistered managed investment schemes listed in the Table in Annexure A of the orders of the Honourable Justice Gordon made on 25 February 2010:

2.    The unregistered managed investment scheme referred to in Annexure A of the orders of the Honourable Justice Gordon made on 4 March 2010 as the SY21 Retail Complex Project.

ANNEXURE C

1.    Paragraph 3 of the orders of the Honourable Justice Gordon made on 25 February 2010.

Associate:

Dated:    6 April 2023

SCHEDULE OF PARTIES