Federal Court of Australia

Bankruptcy Office of the Canton of Geneva (Trustee) v Amoma SÀRL (In Liquidation), in the matter of Amoma SÀRL (No 2) [2023] FCA 1379

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to Art 17(1) of the Model Law on Cross-Border Insolvency of the United Nations Commission on International Trade Law (Model Law), proceeding number JTPI/14932/2019 in the Court of First Instance of the Canton of Geneva, the Swiss Confederation (Geneva Liquidation Proceeding), by which the plaintiff was appointed as the trustee of the bankrupt estate of the defendant (Amoma SÀRL (Amoma) on 28 October 2019, is recognised as a foreign proceeding for the purpose of the Cross-Border Insolvency Act 2008 (Cth) (CBIA).

2.    Pursuant to Art 17(2) of the Model Law, the Geneva Liquidation Proceeding is recognised as a foreign main proceeding for the purposes of the CBIA.

3.    The plaintiff is recognised as foreign representative (within the meaning of Article 2(d) of the Model Law) of the Geneva Liquidation Proceeding.

4.    Pursuant to s 6 of the CBIA and Art 21 of the Model Law, except with the consent of the plaintiff or with leave of the Court:

(a)    the commencement or continuation of individual actions or individual proceedings concerning Amoma’s property rights, obligations or liabilities be stayed;

(b)    any execution against Amoma’s property be stayed;

(c)    the right to transfer, encumber or otherwise dispose of any property of Amoma be suspended.

5.    The stay and suspension described in paragraph 4 above be:

(a)    the same in scope and effect as if Amoma had been made the subject of a winding up under Part 5 of the Corporations Act 2001 (Cth); and

(b)    subject to the same powers of the Court and the same prohibitions, limitations, exceptions and conditions as would apply under the law of Australia in such a case.

6.    Pursuant to s 6 of the CBIA and Art 21(1)(e) of the Model Law, the plaintiff be entrusted with the administration and realisation of the property and assets (and any proceeds thereof) of Amoma located in Australia, including the power to appoint a local representative including, without limitation, a liquidator, subject to such terms as the Court may impose.

7.    Pursuant to s 6 of the CBIA and Art 21(1)(d) of the Model Law, the plaintiff may, as it deems appropriate, examine witnesses, take evidence and obtain delivery of information concerning Amoma’s assets, affairs, rights, obligations or liabilities, insofar as they relate to the proposed proceeding on behalf of the plaintiff and defendant against Trivago N.V.

8.    Pursuant to s 6 of the CBIA and Art 21(1)(g) of the Model Law, and subject to the exceptions for which s 8 of the CBIA provides, all powers available to liquidators or administrators under the provisions of the Corporations Act are available to the plaintiff, as if they were appointed under that Act, insofar as they relate to the proposed proceeding on behalf of the plaintiff and defendant against Trivago.

9.    Pursuant to s 6 of the CBIA and Art 21(1)(g) and (e) of the Model Law, the plaintiff is authorised to, and has standing to, commence and conduct a proceeding on behalf of the plaintiff and Amoma against Trivago.

10.    For the avoidance of doubt, the plaintiff’s powers as set out in these orders may be exercised by the plaintiff’s case manager in relation to Amoma.

11.    The requirement for notice under r 15A.7 of the Federal Court (Corporations) Rules 2000 (Cth) is dispensed with.

12.    The plaintiff’s costs of this proceeding are costs in the bankruptcy of Amoma.

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

REASONS FOR JUDGMENT

MCEVOY J:

1    The defendant, Amoma SÀRL, a Swiss company, is in liquidation and is subject to the control of the Cantonal Bankruptcy Office of Geneva (the plaintiff), which acts as the trustee and representative of Amoma’s bankrupt estate. The plaintiff was appointed on 28 October 2019 by an order of the Bankruptcy Court of the Canton of Geneva (in the Swiss Confederation) in proceeding JTPI/14932/2019 (Geneva Liquidation Proceeding).

2    By an originating application filed on 13 October 2023, the plaintiff seeks recognition of a foreign insolvency proceeding under Arts 15 and 17 of the Model Law on Cross-Border Insolvency of the United Nations Commission on International Trade Law (the Model Law) as it is incorporated into Australian law by the Cross-Border Insolvency Act 2008 (Cth) (CBIA). The plaintiff seeks appointment as foreign representative for the purposes of the Geneva Liquidation Proceeding.

3    The plaintiff also seeks relief under Art 21 of the Model Law, including for the conduct of Amoma’s insolvency in Australia, to be able to examine witnesses, take evidence and obtain information concerning Amoma’s affairs relating to a proposed proceeding against Trivago N.V, to have all powers available to liquidators or administrators under the provision of the Corporations Act 2001 (Cth) insofar as they relate to the proposed proceeding against Trivago, and to commence and conduct the proceeding on behalf of Amoma against Trivago. The principal purpose of recognition is to enable the filing of the proceeding in Australia against Trivago, as the claims in the proceeding are to benefit Amoma’s bankrupt estate.

4    The plaintiff had also sought a declaration under s 581(2) of the Corporations Act that it have standing, or alternatively orders authorising it to commence the proceeding on behalf of Amoma in Australia, but this alternative relief was not pressed at the hearing of the application.

5    On 16 October 2023, orders were made in the plaintiff’s interlocutory application filed on 13 October 2023 as to the steps to be undertaken by the plaintiff to serve and publish notice of the filing of the proceeding, and ancillary matters: Bankruptcy Office of the Canton of Geneva (Trustee) v Amoma SÀRL (In Liquidation), in the matter of Amoma SÀRL [2023] FCA 1232. The affidavits of Ms Piller affirmed on 31 July 2023, Mr Guenther affirmed on 3 October 2023, and Mr Pirkl affirmed on 4 October 2023 contain the substance of the evidence relevant to the orders which are sought.

Compliance with service orders

6    On the evidence the plaintiff has established compliance with the orders of 16 October 2023 relating to the service and publication of notice of the filing of the proceeding. It is unnecessary to recite the steps taken in compliance with those orders, and subsequent events. These are set out in the affidavits of service of Mr Meehan and Mr Guenther, both filed on 26 October 2023, together with Mr Meehan’s further affidavit filed on 1 November 2023. It is sufficient to note that the prescribed steps have been undertaken.

Model Law Recognition

7    Turning then to the recognition of the foreign proceeding, the Model Law plainly has force in Australia pursuant to s 6 of the CBIA: see also Kellow, in the matter of Advanced Building & Construction Limited (in liq) v Advanced Building & Construction Limited (in liq) (No 2) [2022] FCA 781 at [6] (Derrington J).

8    I am satisfied, as the plaintiff submits and for the reasons that follow, that each of the criteria for recognition under the CBIA and Model Law are satisfied: see Bradley, in the matter of Astora Women's Health, LLC v Astora Women's Health, LLC (No 2) [2022] FCA 1268 at [14] (Lee J). This is because:

(a)    the foreign proceeding meets the definition in Art 2(a);

(b)    the foreign representative is a person or body within the meaning of Art 2(d);

(c)    the application satisfies the procedural requirements in Art 15(2);

(d)    the application has been submitted to a court “competent to perform functions under the Model Law” pursuant to Art 4 of the Model Law and s 10 of the CBIA; and

(e)    the foreign proceeding is taking place in a state where the debtor has its “centre of main interests” and so should be recognised as a foreign main proceeding.

9    As these criteria are satisfied, the foreign proceedings should be recognised by this court: Kapila, in the matter of Edelsten (2014) 320 ALR 506 at 511-512 [22] (Beach J).

Foreign Proceeding

10    I accept the plaintiff’s submission that the Geneva Liquidation Proceeding constitutes a foreign proceeding under Art 2(a) of the Model Law as it is:

a collective judicial or administrative proceeding in a foreign State, including an interim proceeding, pursuant to a law relating to insolvency in which proceeding the assets and affairs of the debtor are subject to control or supervision by a foreign court, for the purpose of reorganization or liquidation.

11    There is evidence that the Geneva Liquidation Proceeding:

(a)    is a collective proceeding. This is because it considers the rights and obligations of all creditors, it was instigated to restructure the debtor’s liabilities for the benefit of all creditors, and all creditors are entitled to participate: Bradley at [35]. Moreover, it is collective “in the sense that it deals with and adjusts the claims in that jurisdiction of all of [its] creditors”: Gainsford v Tannenbaum (2012) 216 FCR 543 at 549-550 [27(a)] (Logan J);

(b)    is a judicial proceeding in that the plaintiff was appointed as trustee and representative of the bankrupt estate of Amoma by order of the Court of First Instance of the Canton of Geneva;

(c)    is being conducted pursuant to a law relating to insolvency, that being the Swiss Federal Act on Debt Enforcement and Bankruptcy 1889; and

(d)    is subject to control or supervision by the Bankruptcy Court of the Canton of Geneva.

Foreign Representative

12    The plaintiff is authorised by order of the Bankruptcy Court of the Canton of Geneva and the Swiss Federal Act on Debt Enforcement and Bankruptcy 1889 to administer Amoma’s liquidation and bankruptcy. I accept that under Art 2(d) of the Model Law, the plaintiff is a foreign representative, as it is a body “authorized in a foreign proceeding to administer the reorganization or the liquidation of the debtor’s assets or affairs or to act as a representative of the foreign proceeding”.

Procedural Requirements

13    The plaintiff has demonstrated that the requirements in Art 15(2) of the Model Law (and thereby r 15A.3(2) of the Federal Court (Corporations) Rules 2000 (Cth)) (the Corporations Rules) have been satisfied as:

(a)    the affidavit of Ms Piller includes certified and translated copies of the decision of the Bankruptcy Court of the Canton of Geneva placing Amoma into bankruptcy (Art 15(2)(a));

(b)    the affidavit of Mr Guenther includes a statement identifying all foreign proceedings in respect of the debtor that are known to the foreign representative (Art 15(3)).

14    Furthermore, the requirement in s 13 of the CBIA (and thereby r 15A.3(2) of the Corporations Rules is satisfied as the affidavit of Mr Guenther includes a statement identifying that there are no proceedings under the Bankruptcy Act or Corporations Act in respect of Amoma.

Competent Court

15    Article 4 of the Model Law provides that the functions referred to in the Model Law relating to recognition of foreign proceedings and cooperation with foreign courts shall be performed by a specified court or courts or other authority. Section 10(b) of the CBIA provides relevantly that, if the functions relate to a proceeding involving a debtor other than an individual, the Federal Court of Australia is taken to be specified in Art 4 of the Model Law as a court competent to perform the functions referred to in the Model Law relating to recognition of foreign proceedings: see generally Abate, in his capacity as Liquidator of Onix Capital SA [2017] FCA 751 at [71] (Gleeson J).

Centre of Main Interests

16    Amoma’s registered office is in Switzerland. Article 16(3) of the Model Law provides that in the absence of proof to the contrary, the debtor’s registered office is presumed to be the centre of the debtor’s main interests.

17    In Ackers v Saad Investments Company Ltd (in official liq) (2010) 190 FCR 285 Rares J observed at 295 [48]:

If the Court permitted recognition proceedings under the Model Law to descend into interminable debates as to where a company’s centre of main interests might be, a situation could arise where the assets of the debtor were under the control of its insolvent principals or not otherwise administered consistently with the objectives of the Model Law while the debates raged.

18    The purpose of the presumption is to “assist in achieving the imperative requirement in Art 17(3)”: Ackers at 295 [46]; see also Kapila at 516 [44]. Art 17(3) of the Model Law provides that an application for recognition of a foreign proceeding shall be decided upon at the earliest possible time.

19    It is well accepted that the presumption can be rebutted if factors exist that are objective and ascertainable by third parties (including creditors) which warrant a conclusion that an “actual situation” exists which locates the centre of the debtor’s main interests somewhere other than the place of its registered office: Bradley at [19], citing Kapila at 517 [54] and Wood v Astra Resources Ltd (UK Company No 07620218) [2016] FCA 1192 at [14] (White J); see also Kellow at [27]. The onus of proof is on the person seeking to rebut the presumption in Art 16(3): Bradley at [21], citing Young, Jr, in the matter of Buccaneer Energy Limited v Buccaneer Energy Limited [2014] FCA 711 at [14] (Jagot J).

20    Factors relevant to the question of where a centre of main interests is located are set out in the Model Law on Cross-Border Insolvency with Guide to Enactment and Interpretation, January 2014 (published by the United Nations) at [147] and include:

the location of the debtor’s books and records; the location where financing was organized or authorized, or from where the cash management system was run; the location in which the debtor’s principal assets or operations are found; the location of the debtor’s primary bank; the location of employees; the location in which commercial policy was determined; the site of the controlling law or the law governing the main contracts of the company; the location from which purchasing and sales policy, staff, accounts payable and computer systems were managed; the location from which contracts (for supply) were organized; the location from which reorganization of the debtor was being conducted; the jurisdiction whose law would apply to most disputes; the location in which the debtor was subject to supervision or regulation; and the location whose law governed the preparation and audit of accounts and in which they were prepared and audited.

21    The plaintiff submits that the following factors support the conclusion that the centre of main interests of Amoma was and remains Switzerland:

(a)    Amoma is a company incorporated under the Swiss law;

(b)    Amoma’s seat, under its constitution, is in Switzerland;

(c)    Amoma’s registered office was and is in Geneva, Switzerland;

(d)    the books and records of Amoma are and have always been located in Geneva, Switzerland, and are currently in the custody of the plaintiff and Mr Guenther;

(e)    Amoma’s key executive and management stuff all resided in and worked in Geneva, Switzerland;

(f)    board meetings were ordinarily held in Switzerland;

(g)    all sales and hotel room booking revenue was booked and recorded in Geneva, Switzerland;

(h)    Amoma produced its audited financial statements and accounts in Geneva, Switzerland, and used a Geneva-based auditor as it was required to do under its constitution;

(i)    the majority of shareholders and directors at the time of the foreign insolvency were and are Swiss residents;

(j)    Amoma used three Swiss banks for its banking and its general banking business was conducted through a branch of UBS in Geneva;

(k)    Amoma’s equity funding was conducted in the Canton of Geneva;

(l)    the liquidation of Amoma is being conducted solely by the plaintiff; and

(m)    Amoma’s principal assets, being its software and intellectual property, and its key operations, were all located in and housed on information technology servers in Switzerland.

22    The plaintiff also contends that, even if the centre of main interests assessment is as at the date of this application, the historic facts in 2019 above are relevant to the assessment of the centre of main interests. This is because even under that approach the centre of main interests is to be determined in the light of the facts as at the relevant time for determination, but those facts may include historical facts that have led to the position as it is at the time for determination: Moore, as Debtor-in-Possession of Australian Equity Investors v Australian Equity Investors [2012] FCA 1002 at [19] (Emmett J).

23    I accept that Switzerland is the centre of main interests of Amoma for the purposes of recognition, regardless of whether the centre of main interests is determined:

(a)    at the time of the Court’s decision on recognition: Onix Capital SA, citing Kapila at 516 [39]; Official Assignee in Bankruptcy of the Property of Hanna, in the matter of Hanna v Hanna [2018] FCA 156 at [80] (Gleeson J); or

(b)    at the time that the foreign proceeding was commenced: King, in the matter of Zetta Jet Pte Ltd [2018] FCA 1932 at [11]-[12] (Perram J); Kapila at 514-516 [35]-[39]; Kellow at [27].

24    This is because, as Beach J explained in Kapila at [53], the centre of main interests is:

…where the debtor conducts the administration of the debtor’s interests on a regular basis (Moore at [20] per Emmett J]). In making a determination, the court must have regard to the need for the centre of main interests to be ascertainable by third parties, creditors and potential creditors. It is important, therefore, to have regard not only to what the debtor is doing but also to what the debtor will be perceived to be doing by an objective observer…

25    That is, the debate in the authorities between the two approaches to the timing of the assessment may not result in materially different outcomes and does not result in a different outcome in this case.

26    The plaintiff has established that the centre of main interests of Amoma is in Switzerland. It follows that it is appropriate to order that the proceedings be recognised as a foreign main proceeding within Art 2(b) of the Model Law and that the plaintiff is recognised as the foreign representative (within the meaning of Article 2(d) of the Model Law).

27    In these circumstances it is appropriate also to make orders in the terms of orders 4, 5 and 6 as set out at the commencement of these reasons providing for the conduct of Amoma’s insolvency in Australia.

Claim against Trivago

28    Amoma’s sole asset in Australia is said to be its claim against Trivago. Trivago is apparently a re-seller of hotel rooms. Amoma advertised hotel rooms on the online platform operated by Trivago. This court has found in a civil penalty proceeding brought by the ACCC that Trivago engaged in misleading conduct under the Australian Consumer Law by making false or misleading representations on its platform: Australian Competition and Consumer Commission v Trivago N.V. [2020] FCA 16 (Moshinsky J) (Trivago liability proceeding). As a result, Trivago was ordered to pay pecuniary penalties: Australian Competition and Consumer Commission v Trivago N.V. (No 2) [2022] FCA 417 (Moshinsky J). Amoma seeks the recovery of loss which it and its estate has suffered as a result of Trivago's misleading conduct.

29    The plaintiff on behalf of Amoma proposes to file a proceeding against Trivago in the Supreme Court of Victoria, where the rules of the court enable the plaintiff to file the writ and not serve it for up to 12 months. This, it is said, would enable the proceeding to be commenced so as to stop the running of time for the purpose of any limitation period, while enabling the plaintiff to continue to investigate the viability of the claim. The plaintiff says it will rely on s 137H of the Competition and Consumer Act 2010 (Cth), which provides that a finding or admission of any fact is prima facie evidence of that fact if it is made in a proceeding involving a contravention of Chapter 2, 3 or 4 of the Australian Consumer Law (amongst other types of proceedings). Such contraventions were found by Moshinsky J in the Trivago liability proceeding.

30    The plaintiff submits that there is a risk that with each day that passes, part of the claim may become statute barred. The plaintiff thus seeks recognition as soon as possible to enable the writ to be filed promptly, thereby reducing the potential reduction in the value of the claim of Amoma and its bankrupt estate.

31    In these circumstances the plaintiff seeks an order, pursuant to s 6 of the CBIA and Art 21(1)(d) of the Model Law, that it may, as appropriate, examine witnesses, take evidence and obtain delivery of information concerning Amoma’s assets, affairs, rights, obligations or liabilities insofar as they relate to the proposed proceeding on behalf of the plaintiff and defendant against Trivago. The plaintiff also seeks an order, pursuant to s 6 of the CBIA  and Art 21(1)(g) of the Model Law, and subject to the exceptions for which s 8 of the CBIA provides, that all powers available to liquidators or administrators under the provisions of the Corporations Act are available to it, as if it were appointed under that Act, insofar as they relate to the proposed proceeding against Trivago. Finally, in relation to the proposed proceeding, the plaintiff seeks an order pursuant s 6 of the CBIA and Art 21(1)(g) and (e) of the Model Law, that it is authorised to, and has standing to, commence and conduct a proceeding on behalf of the plaintiff and Amoma against Trivago.

32    Trivago has appeared on the hearing of this application as an interested party in the proceeding, in opposition to the relief sought by the plaintiff that would enable it to examine witnesses, take evidence and obtain information concerning Amoma’s affairs relating to the proposed proceeding against Trivago and to have all powers available to liquidators or administrators under the Corporations Act insofar as they relate to the proposed proceeding.

33    Trivago contends that it is a party whose interests may be affected by the relief sought as it is the prospective defendant to the litigation foreshadowed by the plaintiff.

34    Trivago’s position is that, properly construed, Art 21 requires that a party seeking relief under that provision must demonstrate to the Court that the relief is necessary for the Court’s discretion to grant the relief to be enlivened. That is to say, the plaintiff needs to prove that the specific relief sought is necessary to ensure that the foreign representative has sufficient ability to carry out its functions so that creditors’ interests can be advanced. Trivago submits that the plaintiff has not done so because the relief sought is not in fact necessary in the circumstances.

35    Noting that post recognition relief under Art 21 is discretionary, Trivago submits that it is apparent from the chapeau to Art 21 that the legislature did not intend for foreign representatives to be conferred all the powers available to a liquidator as a matter of course. This, it is said, is reflected in the authorities which make it clear that courts are required to make a determination as to whether the relief sought under Art 21 is necessary before exercising the discretion to grant it. Trivago submits that this threshold has not been met in this application. Trivago refers in this regard to Wong (Trustee), in the matter of Mackellar (Bankrupt) v Mackellar [2020] FCA 1151 at [61] (Derrington J); Duncan (Trustee) v Shrestha, in the matter of Shrestha [2022] FCA 1601 at [46] (O’Sullivan J); Onix Capital SA at [78] (Gleeson J); and Appleyard, in the matter of Crawford Farms Ltd v Crawford Farms Ltd [2012] FCA 1373 at [28] (North J).

36    In Appleyard at [28], North J declined to grant the relief sought under Art 21(1)(g) on the basis that there were:

… no facts before the court which indicate the circumstances which call for [the foreign representative] to exercise any powers or functions beyond those which fall within the order to be made under Art 21(1)(e).

37    Trivago notes that while relief in the form sought by the plaintiff has been granted in a number of cases, those it has identified have involved individual debtors in the jurisdiction or debtor corporations which have businesses, directors or other significant assets in the jurisdiction: Onix Capital SA; Ackers; Kellow (No 2).

38    Having regard to the fact that Amoma’s sole asset in Australia is a claim against Trivago, the basis of which has been fully articulated in a draft pleading, Trivago submits that there is no suggestion that other alternative claims may be available.

39    Trivago submits that the plaintiff will seek to file the claim promptly, and once it does it will have the full benefit of all the usual court processes in litigation including discovery and interrogatories. Thus Trivago says that in these circumstances it is difficult to contemplate any legitimate reason for the foreign representative to exercise any other powers that might be available to a liquidator. And, should it transpire that such powers are required, Trivago says it will remain open to the foreign representative to seek Art 21 relief at the appropriate time.

40    It is Trivago’s position that there is simply no evidence before the Court to support a conclusion that relief of such breadth is required by the foreign representative at the present time. Trivago also notes that foreign representatives are not officers of the court and subject to the obligations to which a locally appointed liquidator would be subject.

41    The plaintiff contends that as a prospective defendant Trivago cannot be heard to oppose orders that give the plaintiff powers equivalent to those of an Australian liquidator. The plaintiff submits that it is appropriate for the Court to confer those powers on the plaintiff which holds the office of a liquidator and is to be recognised as such. It is said that the essence of the CBIA and the Model Law is to confer equivalent powers on foreign insolvency practitioners, which they may exercise in Australia – just like Australian liquidators. The plaintiff submits that the Swiss insolvency proceeding is substantially similar to company liquidation under the Corporations Act, and that as with Australian liquidators the powers are to be exercised in the interests of creditors, and subject to the controls in the Australian corporations legislation.

42    The plaintiff’s position is that it is efficient, and consistent with the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth), for the relevant powers to be conferred by orders made at the time of recognition, thus alleviating the need for the liquidator to come back to court later. The plaintiff points to the fact that such powers have been conferred routinely by this Court at the time of making recognition orders, and without requiring any specific evidence of how the powers are proposed to be exercised: see eg Onix Capital SA, order 4 and 5; Ackers at 297 [59]; Kapila, order 6; Kellow (No 2), orders 5 and 6, [39]-[41]; Hanna, order 1(d)(i) and (ii); Zetta Jet orders 7 and 8.

43    The plaintiff also contends that if, after the orders are made, any issue arises whereby any person (including Trivago) is concerned that the powers may be exceeded or exercised improperly, that person has liberty to apply to modify or terminate the orders under Art 22(3) of the Model Law.

44    Contrary to Trivago’s submissions, the plaintiff submits that the orders it seeks are necessary. The word “necessary” in this context does not mean “essential”, rather it is to be “subjected to the touchstone of reasonableness”: Onix Capital SA at [78]. The powers include, inter alia, the power to conduct liquidators’ examinations - power that is conferred by statute on Australian liquidators, and which it is said would be reasonable to confer on the plaintiff following recognition. In this regard the plaintiff notes that there are well-established principles that govern the exercise of the examination powers: see, for example, Evans and Others v Wainter Pty Ltd (2005) 145 FCR 176 at 216-217 [252] (Ryan, Lander and Crennan JJ). It is submitted that even in the context of existing litigation, liquidators can conduct examinations or seek the production of documents – for example to gather evidence, to test evidence, to assess quantum, to assess likelihood of recovery, and to investigate if the claims are covered by insurance.

45    Insofar as Trivago relies on the observations of North J in Appleyard, the plaintiff notes two relevant distinguishing features, First, that the proceeding in question was not a foreign main proceeding. And secondly, that all the liquidator was doing in that case was selling a piece of land. In the present circumstances, however, it is said to be incumbent on the plaintiff to consider what steps it might take. These might include discovery, interrogatories and issuing summonses for examination, and all these steps are well regulated and would involve applications to the court.

46    It is the plaintiff’s position that it is not required in its evidence to describe the particular steps it might take to obtain information absent Amoma’s assets. It is sufficient, for the relevant orders to be made, that the court knows that the chose in action exists and that a proceeding will be brought. The plaintiff submits that its proposed orders 7 and 8 are for a reasonable purpose, which is ancillary to the primary relief being granted and to the steps that the liquidator proposes to take.

47    The plaintiff notes that as the relevant Victorian rule of the court would enable the writ to be filed without service for up to 12 months, the interlocutory steps referred to in Trivago’s submissions (discovery and interrogatories) would not be available until after service. The powers sought by the plaintiff, as liquidator, would enable investigations to be conducted in Australia in relation to the claim and its viability. The plaintiff submits that it is reasonable for the powers to be conferred on the plaintiff, as a liquidator, without having to reveal what, if any, steps are proposed to be taken and that apart from Trivago, no other creditor (or person) complains about the proposed orders.

48    In all the circumstances I accept that it is necessary, having regard to the nature of Amoma’s asset in Australia (being its claim against Trivago), that the plaintiff should have orders in relation to that claim which would enable it to examine witnesses, take evidence and obtain delivery of information, and to have the powers available to liquidators or administrators under the provisions of the Corporations Act, subject to relevant exceptions. I consider that it is reasonable and necessary for the plaintiff to have the same powers available to it to other that any other liquidator in Australia would have in similar circumstances. It is significant in this respect that the powers extended by such orders would be limited insofar as they relate to the proposed proceeding.

49    Accordingly, orders in the form of orders 7 and 8 as set out at the commencement of these reasons will be made. It is not contested by Trivago that the plaintiff should have an order authorising it to commence a proceeding against Trivago on behalf of Amoma, and so there will also be an order in the terms of order 9 as set out at the commencement of these reasons.

50    The plaintiff also seeks an order that its powers as provided for in the orders to be made may be exercised by its case manager in relation to Amoma. Such an order is not opposed by Trivago, and I am satisfied that there is utility in an order in these terms.

51    The plaintiff also seeks an order that the requirement for notice under r 15A.7 of the Corporations Rules be dispensed with. I am satisfied that there is no utility in further advertising. Trivago is before the court, and no other party has sought to appear: see Chong, in the matter of CNA Group Ltd v CNA Group Ltd [2015] FCA 1148 at [29] (McKerracher J).

costs

52    Turning finally to costs, the plaintiff seeks an order that its costs in this proceeding be costs in the bankruptcy of Amoma. I am satisfied that such an order is appropriate.

53    Both the plaintiff and Trivago seek their costs of Trivago’s intervention (see, insofar as the plaintiff is concerned, r 2.13(2) of the Corporations Rules). In all the circumstances I would not make any order as to the costs of Trivago’s intervention. The plaintiff would have had to appear today in any event, and although Trivago has not succeeded in its application it has caused the plaintiff to modify the form of orders 7 and 8 to limit the exercise of the relevant powers to matters relating to the proposed proceeding on behalf of Amoma. Trivago will bear the costs of its intervention, and the plaintiff will bear whatever limited costs it has incurred in responding to that intervention as costs in the bankruptcy of Amoma.

Associate:

Dated:    8 November 2023