FEDERAL COURT OF AUSTRALIA

Connelly as Receiver and Manager of “Digital Currency Assets” v NGS Crypto Pty Ltd (No 2) [2024] FCA 697

ORDERS

THE COURT NOTES THAT FOR THE PURPOSE OF THESE ORDERS:

1.    The “Receivers” means the applicant plaintiffs: Anthony Norman Connelly, Katherine Sozou and William James Harris, the receivers and managers appointed by the Court on 10 April 2024 in Proceeding QUD178/2024, as varied by orders made on 30 April 2024 and 20 May 2024 in that proceeding (10 April Orders).

2.    The “Digital Currency Assets” has the same meaning as in the 10 April Orders.

THE COURT ORDERS THAT:

1.    The suppression order made on 20 June 2024 be lifted.

2.    The application for judicial advice filed on 14 June 2024 be refused.

3.    The Receivers’ costs, charges and expenses of and incidental to the interlocutory process be their costs, charges and expenses of the receivership payable from the Digital Currency Assets in their control.

4.    Pursuant to Federal Court of Australia Act 1976 (Cth), s 37AF(1)(b)(iv), on the ground set out in s 37AG(1)(a), the affidavit of Anthony Norman Connelly sworn on 11 June 2024, being the third affidavit filed in this proceeding, be marked “confidential” on the electronic file, and not be published (whether electronically or otherwise), or disclosed or accessed by any person other than:

(a)    the Court;

(b)    the Receivers; and

(c)    any person permitted access by an order of the Court.

5.    Order 1 of these orders does not operate to vary previous suppression orders made on 11 June 2024.

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

REASONS FOR JUDGMENT

MEAGHER J

INTRODUCTION

1    By an interlocutory process filed on 14 June 2024, Mr Anthony Norman Connelly, Ms Katherine Sozou and Mr William James Harris, who are court-appointed receivers (Receivers), urgently seek judicial advice that they would be justified in un-staking “Digital Currency Assets” in their control. The Receivers also seek suppression orders in respect of various material in this proceeding and that their costs be payable from the Digital Currency Assets.

2    For the reasons that follow, the judicial advice application is refused.

BACKGROUND

3    In a related matter QUD178/2024, the Australian Securities and Investments Commission (ASIC) urgently sought ex parte orders against the defendants including as to asset preservation, asset disclosure, travel restraint and the appointment of receivers. On 10 April 2024, I made orders granting ASIC the orders sought, which were subsequently varied on 30 April 2024. The 30 April 2024 orders, amongst other things, amended the definition of “Digital Currency Assets” as follows: Digital Currency Assets means “any and all Digital Currency held or controlled by the Defendants or any of them”. The orders were further varied on 20 May 2024 to extend the time by which the third and fifth defendants are to comply with certain orders, as well as precluding the Receivers from disclosing to the plaintiff any of the Digital Currency Assets or books, records and things which relate to the Digital Currency Assets, until further order (Freezing Orders).

4    On 27 May 2024, in QUD178/2024, the third defendant, NGS Group Ltd, and its director, Mr Mark James Ten Caten, the fifth defendant, brought an interlocutory application for the discharge the Freezing Orders, including as to the removal of the Receivers (Discharge Application). According to the Receivers, the ground upon which the third and fifth defendants are seeking the discharge is that ASIC failed to inform the Court of material matters on the ex parte application at which the Freezing Orders were made. The Discharge Application was heard on 12 June 2024 by Collier ACJ (as her Honour then was), and judgment is now reserved.

5    This matter was commenced by an originating process filed on 11 June 2024, one day before the hearing of the Discharge Application, for judicial advice relevant to the conduct of the Receivers. In their originating process, which was to be heard ex parte, the Receivers relevantly sought the following relief:

1.    The Receivers are justified in not un-staking Digital Currency Assets in their control before the determination of the Interlocutory Application.

2.    Alternatively, to 1, the Receivers are justified in un-staking Digital Currency Assets in their control before the determination of the Interlocutory Application by applying the “Proposed Approach” as defined in the affidavit of Anthony Norman Connelly sworn on 10 June 2024.

6    The Receivers also applied for suppression orders in respect of the two affidavits which were filed in the matter and that the Receiver’s costs of the application be costs and expenses of the receivership payable from the Digital Currency Assets.

7    On 11 June 2024, Collier ACJ refused the application for judicial advice and made the suppression orders as sought: Connelly (as Receiver and Manager of “Digital Currency Assets”) v NGS Crypto Pty Ltd [2024] FCA 618 (Judicial Advice Judgment). Her Honour made no orders as to costs.

8    The background to this matter has been comprehensively set out by Collier ACJ in the Judicial Advice Judgment. I gratefully adopt her Honour’s summary of the background and the Receiver’s submissions as set out at [2] – [16].

9    Her Honour found that the Court has jurisdiction to provide judicial advice to Court-appointed receivers pursuant to s 19 of the Federal Court of Australia Act 1976 (Cth) and r 14.23 of the Federal Court Rules 2011 (Cth). However, her Honour did not consider that the Court should, in the circumstances of the proceedings before her Honour, provide judicial advice to the Receivers. At [39] – [43], her Honour stated:

This is not a case where the Receivers have concerns that they may lack power to take action they wish to take. On the basis of the evidence before me, it appears that the Receivers not only have power, but are potentially justified in making either of the decisions they describe – namely un-staking in terms of the Proposed Action, or not un-staking. The Receivers have explained the nature of the actions they could take, and in detail, the pros and cons of those actions.

The Receivers, In substance, ask the Court to choose which action they should take. However, as Mr Connelly explained in his affidavits, either of the actions the Receivers propose involve some form of risk.

As Street CJ in Eq explained in Re Mineral Securities Australia Ltd (in liq) [1973] 2 NSWLR 207 at 232:

When the court is required to pronounce upon the commercial prudence of a transaction, it enters upon a slippery and uncertain field. Apart from the lawyer’s disclaimer of expert qualifications in matters of business prudence, the very process of litigation and the necessary limitations upon the scope of admissible evidence restrict the available material to far less than is necessary for the making of a commercial decision.

See also One.Tel Networks Holdings [2001] NSWSC 1065 at [30] and Re Deputy Commissioner of Taxation v Best and Less (Wollongong) Pty Limited (Receiver and Manager Appointed); Brian Silvia and Mogul Stud Pty Limited [1992] FCA 140; (1991) 10 ACLC 520 at [6].

The Receivers are experts in their field. They plainly understand the ramifications of each of their possible decisions in the complex field of cryptocurrency investments. This is not a case where the Receivers have made a decision and have come to Court seeking judicial advice as to whether they would be justified in giving effect to it, as was the case for example in Kelly, in the Matter of Halifax Investment Services Pty Ltd (in liq) (No 8) [2020] FCA 533. Rather – this is a case where, to paraphrase comments of Goldberg J in Ansett at [65], the Receivers have a feeling of apprehension or unease about possible business decisions open to them in respect of the relevant Digital Currency Assets. It is not for the Court to make the choice of which decision the Receivers should make.

(Emphasis in original)

10    Counsel for the Receivers told the Court in this application that following the delivery of the Judicial Advice Judgment, the Receivers sought leave to be further heard by her Honour in respect of an application to vary her Honour’s orders that the judicial advice application be refused. Leave was granted and counsel for the Receivers stated that he made the following submissions:

    the originating process was erroneously framed in a binary way, when the Receivers should have sought advice that they would be justified in taking one of the approaches, namely to un-stake the Digital Currency Assets or leave them un-staked;

    making no order as to costs could lead the defendants to argue that the Receivers are denied indemnity in relation to the judicial advice application that was before her Honour; and

    in circumstances where it had not been found that the Receivers had acted improperly or unreasonably, they should not be denied indemnity.

11    Following that hearing, the Receivers filed a further ex parte interlocutory process and supporting submissions, which are now before the Court.

12    Through this interlocutory process, the Receivers seek, inter alia, an order that the Receivers would be justified in un-staking the Digital Currency Assets in their control before the determination of the Discharge Application by applying the Proposed Approach, as defined in the affidavit of Anthony Norman Connelly sworn on 10 June 2024.

SUBMISSIONS OF THE RECEIVERS

13    At the hearing of the interlocutory process, the Receivers relied upon the following material:

    Interlocutory process filed on 14 June 2024;

    Affidavit of Anthony Norman Connelly sworn 10 June 2024 and filed 11 June 2024 (Mr Connelly’s First Affidavit);

    Affidavit of Anthony Norman Connelly sworn and filed 11 June 2024 (Mr Connelly’s Second Affidavit);

    Affidavit of Anthony Norman Connelly sworn and filed 11 June 2024 (Mr Connelly’s Third Affidavit);

    Orders made on 11 June 2024;

    The Judicial Advice Judgment;

    Submissions filed 11 June 2024 (First Submissions);

    Supplementary Submissions filed 11 June 2024 (Second Submissions); and

    Submissions filed on 14 June 2024 (Third Submissions).

14    The Receivers also relied upon the following material from proceeding QUD178/2024:

    Orders made on 10 April 2024, 30 April 2024, 20 May 2024 and 24 May 2024;

    Reasons for Judgment: ASIC v NGS Crypto Pty Ltd [2024] FCA 373; and

    Affidavit of Peter James Connor sworn 6 June 2024, paragraphs 13 to 32.

15     The Receivers referred to Re Octaviar Administration Pty Ltd (in liq) [2017] NSWSC 1556 at [6], wherein Black J stated that the Court may give judicial advice “in connection with a proposed compromise, at least where there is an element of potential controversy or acrimony in respect of that compromise”. The Receivers contended that this principle is not confined to a proposed compromise but extends to matters where the decision is likely to be contentious: Re Octaviar Ltd (in liq) [2016] NSWSC 16 at [24] per Brereton J. They also referred to MF Global Australia (in liq) (2012) 267 FLR 27 at [7], wherein Black J summarised the relevant principles as follows:

Section 479(3) of the Corporations Act allows a liquidator to apply to the court for directions in relation to a matter arising under a winding up. The function of a liquidator’s application for directions under this section is to give the liquidator advice as to the proper course of action for him or her to take in the liquidation: Sanderson v Classic Car Insurances Pty Ltd (1985) 10 ACLR 115 at 117 ; (1986) 4 ACLC 114; Re Ansett Australia Ltd (admins apptd) and Korda [2002] FCA 90 ; (2002) 115 FCR 409 ; 40 ACSR 433 at [46]. The court may give directions that provide guidance on matters of law and the reasonableness of a contemplated exercise of discretion but will typically not do so where a matter relates to the making and implementation of a business or commercial decision, where no particular legal issue is raised and there is no attack on the propriety or reasonableness of the decision: Sanderson v Classic Car Insurances Pty Ltd above at 117; Re GB Nathan & Co Pty Ltd (in liq) (1991) 24 NSWLR 674 at 686–7 ; 5 ACSR 673 ; 9 ACLC 1291; Re Ansett Australia Ltdabove at [65]; Re One.Tel Networks Holdings Pty Ltd [2001] NSWSC 1065 ; (2001) 40 ACSR 83 at [32]. A direction can be made under 479(3) in a voluntary liquidation, by reason of ss 506(1)(b) and 511: Warne v GDK Financial Solutions Pty Ltd [2006] NSWSC 464 ; (2006) 57 ACSR 525 at [63]–[64], [82].

16    The Receivers anticipate that their decision to un-stake the Digital Currency Assets is likely to be attacked by the third and fifth defendants as being unreasonable or improper on the basis that the value of the assets will be diminished in value if they are un-staked. By way of correspondence annexed to Mr Connolley’s First Affidavit, the third and fifth defendants have indicated their opposition to this course, including by requesting that the Receivers undertake not to remove any staked wallets.

17    It is for this reason, the Receivers submitted, that the Court should provide judicial advice to the Receivers and, in doing so, protect its appointees from being attacked and liable for damages: Sanderson v Classic Car Insurances Pty Ltd (1985) 10 ACLR 115 at 117 per Young J; Re GB Nathan & Co Pty Ltd (in liq) (1991) 24 NSWLR 674 at 679 per McClelland J. The Receivers submit that this is traditional and orthodox reasoning for seeking judicial advice.

18    In relation to the binary way in which the originating process was framed, the Receivers submitted that the interlocutory process is now framed in such a way that it is not asking the Court to decide which course the Receivers should take. Rather, they submit that they have now made the commercial decision to un-stake the Digital Currency Assets in accordance with the “Proposed Approach” and are seeking the Court’s advice as to whether they are justified in taking that course.

19    The Receivers continued to express their concern that the third and fifth defendants may dissipate the assets if they fail in their Discharge Application. If that is to occur, the Receivers submitted that bringing contempt proceedings is outside the scope of their appointment as Receivers and divorced from the protective purpose of the Freezing Orders. The Receivers also raised concerns as to the difficulty of bringing contempt proceedings in circumstances where the third defendant is a company registered in Hong Kong and the fifth defendant resides in Indonesia.

20    It was submitted that the urgency of this matter can be attributed to the possibility that if the third or fifth defendant un-stake the assets pending the determination of the Discharge, the Receivers would be exposed to the allegation that they had not secured the assets as required. The Receivers also contended that they cannot know whether other persons have access to the private keys to un-stake the Digital Currency Assets, leading to the risk that other persons could un-stake the Digital Currency Assets.

21    The Receivers also submitted that this application was brought ex parte due to its nature, being that the Receivers are seeking private advice about a difficult matter. They contended that the judicial advice has a protective function for the Receivers and, if given, would not bind the third and fifth defendants. Furthermore, the Receivers submitted, had the third and fifth defendants appeared, they would have opposed the application.

22    As to the suppression orders sought, the Receivers submitted that the suppression of the three affidavits of Mr Connelly is appropriate given the private application for judicial advice and that the Receivers are not to disclose such information to the plaintiff by a previous order of the Court in QUD178/2024. As to the limited suppression order, the Receivers submitted that it would only be suppressed for a short period of time to ensure that the Receivers can un-stake the assets without alerting the third and fifth defendant of that course. At the hearing, I made a limited suppression order in respect of the material in this proceeding until further order.

23    In respect of costs, the Receivers’ position was that they would seek that their costs, charges and expenses be payable from the Digital Currency Assets regardless of the outcome of the judicial advice application. To that end, the Receivers submitted:

    By order 12 of the Freezing Orders, the Receivers’ costs and expenses are payable from the Digital Currency Assets. It would therefore “be a violent exercise of the Court’s discretion” if it were to deny the Receivers the benefit of that order: In Re Chennell; Jones v Chennell (1878) 8 Ch D 492 at 502.

    The Court should only exercise the discretion to deny the Receivers indemnity for their costs if the Court finds that the Receivers had acted unreasonably or improperly in this proceeding; SingTel Optus Pty Ltd v Weston [2012] NSWSC 1002 at [13] per Bergin CJ in Eq; Mead v Watson (2005) 23 ACLC 718 at [12]; Adsett v Berlouis (1992) 37 FCR 201 at 211.

    In Gatsios Holdings Pty Ltd v Nick Kritharas Holdings Pty Ltd (in liq) (2002) ATPR 41-864 at [15] – [17], Spigelman CJ considered that the question of whether the conduct amounts to “a violation or culpable neglect of their duty” is a preferable one to the question of whether the conduct was reasonable or proper. The Receivers have not been found to have acted in such a way, nor should such a finding be made.

    All of the analysis which has been conducted and the material put together for the application before Collier ACJ was necessary for the application which is now before the Court.

CONSIDERATION

24    Turning to what the Receivers characterise as the judicial advice sought, that application is refused for the reasons that follow.

25    First, I am not persuaded that it is correct to say that the conclusions of Collier ACJ, with which the Receivers do not cavil, arose only from what counsel for the Receivers describe as the “binary” way in which the application was expressed. The submission, which is what is primarily put to the Court now, that the Court should give judicial advice where a controversy exists, was put to her Honour and referred to in [16] of the Judicial Advice Judgment. In my view, on a proper reading of the Judicial Advice Judgment, the primary reason the application was refused was that the Court was being asked to make a commercial decision which should properly be made by the Receivers. So much is clear from those parts of her Honour’s reasons which are set above, in particular the extract from Re Mineral Securities Aus Ltd (In liq) [1973] 2 NSWLR 207 at 232, and the reference to the statement of Goldberg J in Re Ansett Australia Ltd (No 3) (2002) 115 FCR 409 at 428 [65] that “…[i]t 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. …A court should not give its imprimatur to a business decision simply to alleviate a liquidator’s or administrator’s unease. There must be an issue calling for the exercise of legal judgement”.

26    Secondly, it appears that the Receivers previously asked for judicial advice in respect of two propositions put in the alternative. As will be recalled, before Collier ACJ, the Receivers sought judicial advice that they “are justified in not un-staking the Digital Currency Assets in their control before the determination of the Interlocutory Application”, and alternatively that they “are justified in un-staking the Digital Currency Assts in their control before the determination of the Interlocutory Application”. They now seek judicial advice in respect of just one of those propositions, namely, that they would be justified in un-staking the Digital Currency Assets. The Judicial Advice Judgment makes it clear that the Receivers may potentially be justified in undertaking either course and that they are experts who “understand the ramifications of each of their possible decisions in the complex field of cryptocurrency investments”. I am not satisfied that applying for judicial advice seeking justification to do one of the two things in respect of which the Receivers have already made an application is a wholly different application. Therefore, it appears that this matter has already been determined.

27    As to the risks of the third and fifth respondents un-staking, or otherwise dealing with the Digital Currency Assets, an analysis is set out in the First Submissions which purports to summarise why the Receivers might not un-stake the Digital Currency Assets and why they might. While I have no doubt that the Receivers have made every effort to put the case which might be put by the third and fifth defendants with respect to the commercial considerations and as to their conduct in the related litigation, the evidence that is before the Court is not sufficient to persuade me that the risks rise to the heights submitted by the Receivers. Further, the Receivers have not attempted to put the case that the third and fifth defendants may put in relation to the application for judicial advice, other than that it would be opposed.

28    As set out above, the Receivers submitted that the application was quite properly made ex parte. Those submissions might be accepted had this been an application for judicial advice as to an issue which calls for the exercise of legal judgment. However, as is clear from the submissions set out above, this application is one in which the Receivers were seeking guidance with respect to a commercial decision which might be “controversial”.

29    It is well established that in matters which are likely to be controversial, it is appropriate for a Receiver to apply for judicial advice or directions of the Court: Re Octaviar at [23] – [24] per Brereton J; Re Octaviar Administration at [6] per Black J; Re ACN 004 410 833 Ltd (formerly Arrium Ltd) (in liq) [2021] NSWSC 799 at [14]–[15] per Black J. However, counsel for the Receivers did not refer me to any cases where that took place in the absence of the other parties, or at such an early point in the proceedings. In each of the cases to which I was referred, in the matters in respect of which the Receivers were seeking guidance or approval, the relevant parties were present or had been given the opportunity to be present, their submissions were considered and in any case, the guidance sought was with respect to compromise, notwithstanding the statement in Re Octaviar at [24] that the Court may give a direction on a commercial decision where no legal issue is raised “in the context of a proposed compromise, and/or where the decision is likely to be contentious”. A case which was referred to that did not involve a compromise, and which was heard ex parte is Lewis (liquidator), Re Concrete Supply Pty Ltd (in liq) (2020) 145 ACSR 459; [2020] FCA 841. That case involved an application by the liquidators for the approval of the Court to enter into a retainer with certain solicitors. However, that was a case which clearly involved the exercise of legal judgment. Further, cases such as Sanderson and Re MF Global similarly either involved an issue calling for the exercise of legal judgment or were heard inter partes.

30    Each case turns on its own facts and circumstances. In Franbridge Pty Ltd v Societe & Generale Finance Corporation Pty Ltd (1994) 14 ACSR 304, Einfeld J considered that there were “insufficient facts to give a final opinion either way because [the Court] had evidence from one interested side only”; at 309. The issue of notice and “whether or not judicial advice should be given without notice to interested parties may involve issues of judgment on the part of the Court”: Re Estate of Love [2017] ACTSC 5 at [20], citing Re Estate Late Chow Cho-Poon [2013] NSWSC 844 at [200] as set out in the Judicial Advice Judgment at [26]. In this case, I consider that the third and fifth defendants should have been given the opportunity to be heard. That view is reinforced by weighing up the level of cooperation they have shown against the complaints the Receivers have made about their conduct to date.

31    The application for judicial advice is therefore refused.

32    As to the application for suppression orders, I am satisfied that it is in the interests of justice that the affidavits of Mr Connelly be suppressed. In circumstances where orders have already been made for the suppression of the First and Second Affidavits of Mr Connelly, I only consider it necessary to make an order that Mr Connelly’s Third Affidavit be suppressed. In respect of the limited suppression order, I do not consider it in the interests of justice that all of the material in this proceeding be suppressed until 7 days after delivery of this judgment.

33    As to the Receivers’ costs, their submissions must generally be accepted. While the Receivers have not been successful in their application for judicial advice, it was not an application made unreasonably or improperly. It does not amount to “a violation or culpable neglect of their duty”: Gatsios Holdings at [15] – [17].

34    However, the Receivers seek an order that their costs of “this proceeding” be payable from the Digital Currency Assets. To the extent that the Receivers seek to vary the previous costs order made by Collier ACJ, this is not an appropriate circumstance in which the “no costs” order should be varied. As stated by the Full Court in Nyoni v Murphy (2018) 261 FCR 164 at [46], r 39.05 of the Rules, which provides that an order may be varied in particular circumstances, is not “a vehicle for an appeal” nor does it provide the “means to revisit the correctness of a reasoning process”. Accordingly, the Receivers’ costs, charges and expenses of and incidental to this interlocutory process shall be their costs, charges and expenses of the receivership payable from the Digital Currency Assets.

CONCLUSION

35    For the reasons above, the application for judicial advice is refused. I am satisfied that it is appropriate that a suppression order be made in relation to the Mr Connelly’s Third Affidavit. The Receivers’ costs, charges and expenses of the interlocutory process shall be payable from the Digital Currency Assets.

Associate:

Dated:    28 June 2024

SCHEDULE OF PARTIES