Federal Court of Australia

Brereton, in the matter of ICT Century Pty Ltd (In Liquidation) [2025] FCA 107

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 588FF(3)(b) of the Corporations Act 2001 (Cth), the time for making an application under s 588FF(1) of the Act be extended until 18 July 2025.

2.    The first plaintiffs’ costs of this application be costs in the liquidation of the second plaintiff.

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

REASONS FOR JUDGMENT

OWENS J:

1    By Originating Process dated 10 July 2024, Messrs Brereton and Wengel, in their capacity as joint and several liquidators of ICT Century Pty Ltd (in liquidation) (I will refer to the first plaintiffs as “the liquidators” or the “ICT liquidators”, and the second plaintiff as “ICT” or “the company”), seek an extension of the period within which they may make an application under s 588FF(1) of the Corporations Act 2001 (Cth). They do not identify any particular application that they wish to make, nor even specific transactions they seek to impugn. They ask for what is commonly referred to as a “shelf order”; permitting them, by a specified date, to make any application that commends itself to them following further investigation.

2    Absent an extension, the liquidators would have been required to make any application under s 588FF(1) by 18 July 2024. That is because, in the circumstances of this case, the operation of s 588FF(3)(a) would fix the relevant date at three years after the “relation-back day” (which, here, is the date that the liquidators were appointed to the company by a resolution of members; namely, 19 July 2021: Corporations Act, ss 9, 91, 513B(b) and 513C). They have sought, pursuant to s 588FF(3)(b), an extension of one year, to 18 July 2025.

3    The scope of the power to grant extensions of this kind, and the principles in accordance with which applications to exercise it are to be determined, are settled, such that there is no issue that:

(a)    An order extending time may be made after the expiry of the period calculated in accordance with s 588FF(3)(a), provided that the application for an extension was filed within that period: McGrath v National Indemnity Company [2004] NSWSC 391; 182 FLR 309 at [18], per Barrett J.

(b)    Section 588FF(3)(b) authorises the making of a shelf order: Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher (2015) 254 CLR 489 at [24], per French CJ, Hayne, Kiefel, Gageler and Keane JJ.

(c)    Because an order extending time is capable of adversely affecting the interests of third parties, ordinarily they should be given an opportunity to make submissions before the order is made: John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1 at [131], per French CJ, Gummow, Hayne, Heydon and Kiefel JJ. If that is not possible (and in the context of an application for a shelf order there will be obvious limitations on the ability to provide such an opportunity to all persons who may ultimately be affected by the order), then, upon application, the third party must be put in the same position as he or she would have been in had such an opportunity been provided: BP Australia Ltd v Brown (2003) 58 NSWLR 322 at [133]-[134], per Spigelman CJ (Mason P and Handley JA agreeing); see generally John Alexander v White City at [137].

(d)    The discretion conferred by s 588FF(3)(b) is to be exercised having regard to the scope and purposes of Pt 5.7B (Fortress Credit v Fletcher at [24]), and the fundamental question is whether it is “fair and just in all the circumstances” to grant the extension: BP v Brown at [187]. Another way of viewing the question, is to ask whether the extension would represent an unreasonable prolongation of the state of uncertainty faced by those who entered into transactions with the company during the periods in respect of which designated transactions may be voidable: Fortress Credit v Fletcher at [24]; Parker, in the matter of Worldwide Specialty Property Services Pty Limited (in liq) v Worldwide Specialty Property Services Pty Limited (in liq) [2017] FCA 687 at [15], per Lee J.

(e)    In most cases, the centrally relevant considerations will be (see, eg, Taylor v Woden Constructions Pty Ltd [1998] FCA 1228, per Finn J, synthesised and crystallised in many later cases, including Green v Chiswell Furniture Pty Ltd [1999] NSWSC 608 at [15], per Austin J):

(i)    the liquidator’s explanation for the delay in commencing proceedings;

(ii)    a preliminary assessment of the merits of the foreshadowed proceedings, directed to determining the fairness of prolonging the exposure of third parties to the uncertainty of possible litigation (although, where the purpose of the extension of time is simply to put the liquidator in a position to decide whether or not to bring a proceeding, a preliminary inquiry into the merits may not always be necessary);

(iii)    whether the likely prejudice resulting from the grant of an extension is sufficiently substantial to outweigh the case for granting an extension.

(f)    The particular nature of shelf orders may give rise to a number of additional considerations, including (Fortress Credit v Fletcher at [25]-[26]):

(i)    disadvantage to potential defendants not identified in the shelf order;

(ii)    the encouragement to liquidators not to identify potential defendants, thereby reducing the prospect of opposition at initial application;

(iii)    the risk of a multiplicity of litigation by successive defendants applying to reagitate extension applications of which they had not been given initial notice;

(iv)    the risk of inconsistent outcomes on applications to set aside extension orders by respective defendants;

(v)    no finality, as claims by defendants that they were identifiable, but not identified, might cause ongoing challenges to any extension granted;

(vi)    want of certainty for liquidators and prospective defendants who might seek to have leave revoked after it had been granted and after proceedings had commenced;

(vii)    the potential for wasted costs to be incurred contrary to the interests of creditors; and

(viii)    the determination of applications by reference only to evidence that the liquidator elected to put before the court.

4    The distinctive feature of this case, finding no analogy in any authority discovered by either counsel or by me, is that the primary basis upon which the extension of time is sought, is not to enable the liquidators to complete their investigations and commence any proceedings that might be available, or obtain funding to do so, but rather to allow a third party to undertake its own investigations and form its own view about any proceedings it may wish to bring (in its own right, or by way of assignment).

Factual background

5    Seventy percent of the company’s shares are owned by Mr Chung Ung Kong. The other 30% are owned by Mr Kong’s daughter, Ms Kimberly Yee Kong. Mr Kong has been the company’s sole director since 1 November 2012.

6    Mr Kong also has a son, named Mr Victor Chun How Kong, who I will refer to as Mr Victor Kong. Mr Victor Kong owns more than 70% of the issued share capital of a company named OZB Group Pty Ltd. OZB Group in turn owns 100% of the issued share capital of both AZAU Global Pty Ltd and Tech Century Pty Ltd. Another company, now deregistered, named AZ Ecommerce Pty Ltd, was owned in equal proportions by Tech Century and Mr Victor Kong. Finally, KY Enterprises Hong Kong Pty Ltd is a company owned by another entity the ownership of which was not revealed by the evidence. At different times, both Mr Kong and Mr Victor Kong have been directors of each of the companies just named.

7    The company’s principal business was the importation, distribution and wholesale of information and communication technology equipment to the Australian market. The liquidators’ investigations have revealed that approximately half of the company’s business was transacted with entities associated with members of Mr Kong’s immediate family; most notably those mentioned in the previous paragraph. The liquidators have observed very high levels of inventory sales and purchases between those companies, and a number of intercompany loans. In short, the company appears to the liquidators to have been operated as part of a group of companies. The remainder of the company’s business was transacted with business partners with whom there was a second-generation family connection to Mr Kong. The extent to which the business of the company was conducted with and through associated entities has posed challenges for the liquidators in seeking to identify potential recoveries; a topic to which I will return.

8    The immediate catalyst for the failure of the company appears to have been the crystallisation of a loss associated with a foreign exchange facility it operated with EncoreFX (Australia) Pty Ltd to enable the purchase of stock from overseas suppliers. That loss, in the amount of approximately $8 million, became due and payable in March 2020. In the liquidators’ view, it made the company insolvent. Later that year, EncoreFX was itself placed into liquidation (I will refer to those liquidators as the “EncoreFX liquidators”). EncoreFX is the largest creditor of the company.

9    The liquidators perceive that there was a change in the conduct of the company’s affairs after the EncoreFX debt crystallised. Movements observable in the company’s accounts and other financial records in the period between March 2020 to the date of the liquidation on 19 July 2021 have caused them to suspect that there may have been an orderly wind-down of the company’s business, potentially coupled with the “phoenixing” of the company’s business to another entity. For example:

(a)    In the period March 2020 to 19 July 2021, the company’s current liabilities balance was reduced from $20,936,746.51 to $4,905,182.80. This reduction included a decrease in the company’s payables balance from $16,248,594.92 to nil.

(b)    Over that same period, the company paid a net amount of $13,220,206.38 to its trade creditors, including related entities.

(c)    The company’s monthly revenue significantly declined from $8 million in November 2020 to $400,000 in March 2021.

(d)    During the period April to July 2021, the company reduced a Trade Finance Facility it operated with the Commonwealth Bank of Australia from $5.5 million to $660,000. On 3 May 2021, OZB Group was added as a borrower and drew down on the facility.

(e)    The company reduced its inventory balance from a peak of $7.3 million as at 31 January 2020 to nil as at 30 June 2021. Prior to February 2020, the company had appeared to maintain a relatively stable inventory balance. From February 2020 onwards there was a significant reduction in inventory, including a reduction of $2,279,071.64 in the month of February 2021 alone. The liquidators have not been able to identify the reason for these reductions, or any value that the company received in return for the disposition of its inventory.

(f)    The company’s total assets declined significantly from $15.4 million at the end of January 2021, to $3 million at the end of 30 June 2021.

(g)    The company progressively terminated its employees before entering liquidation. It would appear that at least some of the terminated employees may have been subsequently employed by OZB Group.

(h)    The company was a party to a distribution agreement that made it the authorised representative of Xiaomi Corporation products in Australia. The liquidators have not identified any consideration paid to the company for the assignment or novation of that agreement, or any information as to what happened to this part of the company’s business.

(i)    There were 1,380 transactions recognised in the general ledger for the loan account that Mr Kong maintained with the company. The net effect was that a debt of $8,186,890.88 owed by him to the company on 26 March 2020 was transformed into a credit balance of $2,427,044.33 on 19 July 2021. The liquidators have been unable to determine the purpose and source of those transactions.

10    In any event, by the time the company was placed in liquidation, the majority of the company’s assets had been disposed of, its liabilities to associated entities had been discharged, and what was left, apart from Mr Kong’s loan, was various debts to unrelated third parties, the largest of which is that owed to EncoreFX.

11    It has taken the liquidators considerable time to work out even the summary state of affairs described above. Largely, that is because they have found it difficult to untangle the mass of transactions between the various group companies. The company used an accounting platform called “Odoo” which was hosted amongst other group companies’ data. The liquidators stated that accessing, extracting and reviewing reports produced by that system was difficult and time-consuming (even with the assistance of an external forensic expert, Korda Mentha). The complex nature of the company’s trading activities with multiple group entities in multiple currencies meant that there were a large number of general ledger accounts (232 to be precise), and the circular nature of many of the transactions meant that determining which were mere book entries and which involved the real-world movement of money and goods was challenging. Adding to the complexity was the fact that in the six-month period prior to the date of liquidation, the company used nine different bank accounts.

12    By the time of their third report to creditors, on 11 August 2023, the liquidators had recorded over 450 hours of work on the liquidation, including about 275 hours referable to the investigation of potential recovery actions. They had instructed and briefed lawyers both to assist them in relation to the investigation, and advise them on potential recovery actions. The liquidators formed the view, however, that while the documents and information that they had analysed raised the possibility that the business of the company was transferred to another entity or entities, including to related companies, and that there had been other voidable transactions within the meaning of s 588FE of the Corporations Act, they could not sufficiently identify the transactions they might seek to impugn without further information.

13    The liquidators thus told creditors that they had taken their review of the documents as far as they usefully could, and that they had “formed the view that public examinations are necessary in order to obtain a full picture as to what happened to the company and its business”. In particular, they considered it necessary to examine Mr Kong and Mr Victor Kong. They informed creditors that they estimated disbursements of between $120,000 to $150,000 (excluding GST) would be incurred in the preparation and conduct of public examinations, not including their own remuneration. Consideration of the information arising out of the examinations, and the commencement of any litigation as a result, was said to likely require a further $500,000 (excluding GST). They had (barely) enough money to pay for the disbursements that would be incurred in conducting public examinations, but no more. They sought expressions of interest from creditors interested in providing necessary additional funding for further investigations. None were forthcoming. The liquidators did not consider that they had information of a sufficient quality to interest commercial litigation funders.

14    On 3 November 2023 the liquidators received a letter from the EncoreFX liquidators. They said that they would not provide any funding, and would instead proceed with their own public examinations of Mr Kong and Mr Victor Kong. They also sought informal production of documents and information obtained in the liquidation of ICT. They requested that the ICT liquidators cease work on their investigations in order to preserve what little was left of the company’s assets for the benefit of creditors. The ICT liquidators point out that the request to cease work was unnecessary, because they had insufficient funds to carry out any meaningful further investigations in any event.

15    The proposal by the EncoreFX liquidators to conduct their own investigations and examinations was not new. They had in fact been preparing to examine Mr Kong and Mr Victor Kong on the very day ICT was placed into liquidation. Once informed of the liquidation, they deferred their scheduled examinations, on the basis that those examinations would be more productive if conducted with the benefit of the results of the ICT liquidators’ investigations. It was thus the receipt and consideration of the third report to creditors that prompted the EncoreFX liquidators to revive their own investigations.

16    Over the following months, up to 1 February 2024, there were ongoing communications between the ICT and EncoreFX liquidators, in which the latter requested and the former provided documents and information. Simultaneously and subsequently, the EncoreFX liquidators analysed both the primary material provided to them, and the ICT liquidators’ analysis. They were in a position to move the Court for orders summoning Mr Kong and Mr Victor Kong, as well as for the production of documents, on 20 May 2024.

17    The Court made the orders sought by the EncoreFX liquidators on 12 June 2024, scheduling examination of Mr Kong and Mr Victor Kong for 3 and 4 September 2024. There followed a succession of unsuccessful attempts to serve the examination summonses. Ultimately, substituted service of Mr Kong had to be ordered (which was done on 8 October 2024), and the attempt to serve Mr Victor Kong was abandoned, once it was ascertained that he was outside the country with no known plans to return. Those difficulties meant that the original September dates were lost, and the examination of Mr Kong only commenced on 26 November 2024. The examination was not concluded on that day, and has been adjourned to 3 and 7 March 2025. In the interim, further orders for the production and inspection of documents have been made.

18    It was while that process was unfolding that the date by which the ICT liquidators would, unless they obtained an extension, need to make an application under s 588FF(1) passed. Shortly beforehand, on 10 July 2024 (the same day these proceedings were commenced), the EncoreFX liquidators wrote to indicate their support for an application pursuant to s 588FF(3)(b), and to confirm that their intention was, subject to various matters including necessary additional evidence being discovered during the public examination process, to take an assignment of any claims that might be available to the ICT liquidators or the company .

19    The ICT liquidators emphasise that, while the primary course contemplated at present is that any causes of action that may be uncovered during the EncoreFX liquidators’ investigations and examinations will be assigned to them, it is also possible that the ICT liquidators will learn information during the public examinations that will prompt them to pursue their own funding (either from the company’s creditors or a commercial litigation funder) and bring their own proceedings.

consideration

Delay

20    The liquidators explain their inability to have commenced proceedings within the statutory three-year period by reference to the complexity of the company’s operations and records coupled with a lack of resources available to deal with the challenges that posed. The evidence shows that the liquidators have encountered significant difficulty in accessing, organising, reviewing and understanding the company’s accounting records and, in particular, in untangling the highly integrated way that the business of the company was conducted across a group of associated entities. They have had to do so without the meaningful assistance of company employees or directors.

21    The liquidators have needed to review a very large number of accounting ledgers, recording transactions in different currencies, using different bank accounts, with a number of different counterparties, in circumstances where the purpose or legitimacy of the transaction is not always clear. No doubt these challenges could have been addressed more quickly by the deployment of additional resources. But the fact is that the liquidators have not been able to persuade the creditors of the company to provide additional funding, and the evidence is that commercial litigation funders would be unwilling to fund further investigations on the basis of the presently available material.

22    They could not obtain access to the company’s accounts until after November 2021. They had completed their analysis of the documents, and reported their conclusions to creditors, by 11 August 2023. That is obviously a significant period of time but one that I am satisfied, on the evidence presented to me, having regard to the complexity of the task confronting the liquidators, the resources available to them, and to the need to prioritise amongst their work, was reasonable. On 11 August 2023, the expiration of the statutory limitation period was still more than 11 months away. Indeed, the liquidators considered that there was sufficient time to conduct examinations and commence proceedings before time expired.

23    Perhaps the real question is why that prediction was not fulfilled.

24    The simple answer, of course, is that the liquidators were speaking on the hypothesis that funding to enable preparation for public examinations and subsequent steps would be provided promptly. True it is that the company’s remaining funds would have been just enough to cover the disbursements likely to be incurred in carrying out public examinations, but they would not have been sufficient to provide for payment of the liquidators’ own remuneration, and certainly no further steps to analyse and act upon the outcome of the examinations could have been undertaken. Once the company’s creditors declined to put the liquidators in funds to progress matters, the prospect of meaningful further action thus evaporated. A lack of funding is a relevant consideration in explaining delay: Chin, in the matter of Agatha Trading Pty Ltd (in liq) [2020] FCA 991, per Markovic J at [34] – [35]. No suggestion of unreasonable delay on the part of the liquidators can be made following delivery of the third report to creditors.

25    The decision to stand aside while the EncoreFX liquidators pursued their own investigations was reasonable; indeed, as the liquidators submitted to me, they hardly had any other choice. EncoreFX was the largest creditor of the company, and was highly motivated to maximise recoveries available to the company. The EncoreFX liquidators appeared to be significantly better resourced than the ICT liquidators, and there was no reason at all to doubt their skill and professionalism. In circumstances where the ICT liquidators did not have the ability to progress their own investigations, standing by while a third party performed its own was an obviously reasonable approach.

26    The question then becomes: to what extent is that portion of the delay experienced after the EncoreFX liquidators took over the investigation relevant? The ICT liquidators submitted that there was no need to inquire into, and thus they did not need to justify, that period; it was sufficient for them to demonstrate the reasonableness of the decision to defer to the EncoreFX liquidators. That is to say, the ICT liquidators’ position was that the only relevant delay when considering an extension pursuant to s 588FF(3)(b) is their own, and not that of other persons. I do not accept that submission, at least in that unqualified form.

27    Much will, of course, depend upon the particular facts of individual cases. But it seems to me that to say that a decision to suspend work in favour of allowing a third party to conduct an investigation is reasonable is only the beginning of the analysis. The relevance of delay to the exercise of the discretion is not limited to considerations of blameworthiness on the part of the person seeking the extension. The question whether the requested extension would result in an unreasonable prolongation of uncertainty in the sense described in the authorities is apt to direct attention to objective features and consequences of any delay, as well as the question of responsibility for it. To state the obvious, from the perspective of a person against whom an action under s 588FF may ultimately be brought, it might be thought to matter little that the reason proceedings were not commenced within time was because of the dilatoriness of a third party rather than the liquidator.

28    The nature and extent of reliance by liquidators upon third parties in relation to the conduct of investigations may fall at different points on a very broad spectrum; from the engagement of third-party professionals to perform discrete tasks, to complete deference to a third-party’s investigation. The precise inquiry called for in any given case will depend upon the particular circumstances in issue, and may well be affected by the ability of the liquidators to explain events to which they were not party. The significance to be attached to delay in the ultimate exercise of the discretion must always be case specific, but as a general proposition, I consider that where the decision to use or rely upon a third party ultimately results in delay, it will be necessary to inquire into the nature, causes, and effects of the delay, and the response of the liquidators to it.

29    In some cases it may be that the same objective delay assumes a different significance in the exercise of the discretion depending on whether the cause was the liquidator’s own conduct, or that of a third party. In others, the apportionment of blame may not matter. The point is, contrary to the liquidators’ submissions, I do not think it is possible to leave out of account entirely the question of delay once a liquidator has established that reliance on a third party to perform work was reasonable.

30    In this case, at the very least, the need for an explanation of the conduct of the EncoreFX liquidators was raised on the evidence by the fact that in the ICT liquidators’ third report to creditors, issued on 11 August 2023, the view was expressed that public examinations could be concluded, and any proceedings commenced, by 18 July 2024. In circumstances where the EncoreFX liquidators had already prepared to conduct their own public examinations in relation to the affairs of ICT, and had a significant degree of familiarity with the issues involved, the fact that proceedings were not commenced in time seemed to me to call for an explanation.

31    While not accepting that an explanation was required, following a short adjournment during the hearing of this proceeding, the liquidators tendered additional evidence directed to explaining the work done by the EncoreFX liquidators in the period from 11 August 2023 onwards. That evidence consisted of both an open and a confidential exhibit. I have had regard to all of that evidence, in addition to the other evidence previously tendered, and am satisfied that the EncoreFX liquidators acted reasonably in that period in progressing their investigations and examinations.

32    The total period can usefully be approached in two parts: the first being the period up until the Court was moved for examination orders, and the second being the subsequent period in which the examination process unfolded.

33    In relation to the first period, like the ICT liquidators, the EncoreFX liquidators considered that the analysis and conclusions contained in the third report to creditors were not sufficient to identify specific transactions in relation to which proceedings could be commenced, and that public examinations were necessary. In their letter to the ICT liquidators of 10 July 2024, they identified a further purpose to be served by public examinations; namely, ascertainment of the ability of any prospective defendant to satisfy a judgment. I pause to note that if that was the only reason that public examinations were required before commencing proceedings, I would not have considered that to be an appropriate reason to grant an extension: Re Franklyn Scholar (Australia) Pty Ltd [2020] NSWSC 1902 at [15], per Black J. But here the public examinations were contemplated for the additional, and broader, reasons outlined above.

34    The evidence discloses that, once they were in receipt of the third report to creditors, the EncoreFX liquidators:

(a)    considered the findings contained in that report, and sought legal advice in relation to the implications for potential claims;

(b)    held meetings with the EncoreFX committee of inspection to discuss the report, their analysis of potential claims, and the need for and means of funding further action;

(c)    commenced drafting the necessary Court processes, and approached the Court, regarding the proposed public examinations of Mr Kong and Mr Victor Kong;

(d)    supplemented the review and analysis of the ICT liquidators, including by seeking additional documents and information from the ICT liquidators and performing additional reviews of that material (in relation to which they experienced many of the difficulties and challenges experienced by the ICT liquidators);

(e)    identified further documents that would be relevant to the examination, and drafted orders for production of those documents;

(f)    sought orders for examination of Mr Kong and Mr Victor Kong at the Court’s earliest convenience, noting that there was an approaching statutory limitation period expiring in July 2024.

35    In the circumstances, I am satisfied that the EncoreFX liquidators acted reasonably in progressing their investigations to the point of filing the application for examination orders on 20 May 2024.

36    In relation to the second period, from that point on, as I have described above, the originally scheduled examination dates in September 2024 were lost due to difficulties in serving Mr Kong and Mr Victor Kong. The rescheduled examination of Mr Kong in November 2024 proceeded, but has now been adjourned to March 2025. I am satisfied on the evidence that the EncoreFX liquidators acted reasonably to progress the examinations and their investigations, and that the delay was principally, if not solely, caused by Mr Kong and Mr Victor Kong refusing to accept service.

37    Overall, therefore, I am satisfied that the evidence demonstrates that the EncoreFX liquidators have acted reasonably in progressing the investigation and consideration of potential claims in the period since 11 August 2023. It follows that I am also satisfied that nothing in the course of events just described rendered the ICT liquidators’ continued suspension of their own work while awaiting the outcome of the EncoreFX liquidators’ investigations unreasonable at any point. There is no reason to think that the ICT liquidators should have perceived some problem with the way that the EncoreFX investigation was progressing, let alone concluded that they would have been able to move any quicker. In any event, they lacked the funding to do anything differently.

38    Overall, therefore, I am satisfied that the liquidators’ inability to commence proceedings within the statutory time period has been satisfactorily explained.

The Merits of Potential Claims

39    The liquidators submit, and I accept, that it is not necessary to conduct any preliminary assessment of the merits of potential claims. That is because the purpose of the requested extension is not to enable identified claims to be brought, but rather to permit the completion of investigations that would allow a proper decision to be made as to whether or not viable claims exist. As Finn J said in Taylor v Woden Constructions:

[A] merits inquiry, even of a preliminary character, may not always be necessary. Where the liquidator is not in the position to consider the merits but has proper grounds for inquiring into the matter because of suspicion it invites (or that is cast on it) or of the explanation it requires, then provided he can satisfactorily explain his delay in inquiring sufficiently into the matter, he should not be closed out from an extension because he is unable to say he has a meritorious claim. In some instances, as here, it will be sufficient if he can say “I do not know if I do, but there is reason to inquire”.

40    For the reasons given above, I am satisfied that the liquidators have satisfactorily explained why investigations were not able to be completed in time to allow the commencement of proceedings without an extension.

41    I am also satisfied that the circumstances that have been revealed by investigations to date indicate that there is merit in permitting the investigation of potential claims to continue. The purpose of an inquiry into the justification for continuing the investigation in the sense described by Finn J is connected to the broad assessment of the reasonableness of prolonging the state of uncertainty faced by those who entered into transactions with the company during the periods in respect of which designated transactions may be voidable. For the prolongation of uncertainty to be regarded as reasonable, the extent to which the investigation can be justified on a basis beyond speculation will ordinarily be an important consideration to be weighed in the balance.

42    In this case, I am satisfied that the apparent change in the company’s operations and finances in the period between March 2020 and July 2021, coupled with indications that the company’s business may have been transferred to other entities, invites suspicion warranting continued investigation.

43    I do not think that it matters that in this case the investigative steps proposed to be taken will be carried out by someone other than the liquidators of the company, and that any potential claims that are identified are likely to be brought (on assignment) by a third party. The investigations will be carried out by liquidators (who have well-established duties and responsibilities, and the necessary powers to make any investigation effective) of a company that has a real and direct interest in the subject matter that does not conflict with the interests of other unsecured creditors of the company. The proposed examinations will be conducted in public, and it will thus be open to the ICT liquidators to attend and derive such benefit as they are able from them. Furthermore, the liquidators of the company and EncoreFX have worked cooperatively, and may be expected to continue to do so, to advance the interests of all creditors of the company. The pursuit of any identified claims will accrue to the benefit of the company’s creditors as a whole.

44    In circumstances where the ICT liquidators do not have the funds to progress their own comprehensive investigation, and where the information obtained as a result of the EncoreFX liquidators’ investigation will be publicly available, the proposed course appears likely to place the ICT liquidators in the best possible position to assess the prospects of any potential voidable transaction claims. That in turn will permit them to determine whether they wish to continue discussions with the EncoreFX liquidators concerning the assignment of potential claims, attempt to obtain funding to pursue any potential claims themselves, or take no further action.

Prejudice

45    It is always relevant to take into account the presumptive prejudice (by which I mean the general prejudice that arises from the passage of time, and in particular the passage of time once a statutory limitation period has passed) that potential defendants will suffer by reason of the grant of an extension: see generally Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551-553, per McHugh J and, in connection with extensions of time under s 588FF(3)(b) in particular, New Cap Reinsurance Corp v Reaseguros Alianza SA [2004] NSWSC 787; 186 FLR 175 at [71], per White J.

46    Consideration of the nature and extent of specific prejudice presents obvious difficulties in the context of an application for a shelf order. Where the prejudice arises by reason of some known event or circumstance (the death of a witness who would be central to any likely claim, or the loss of certain company records, for example) it may be possible to weigh it in the balance. But the possibility will always remain that individual issues may exist in relation to an unascertained potential defendant, or a claim that has not yet been formulated. That difficulty is, to some extent, capable of being overcome by the ability of a person affected by the making of the order who was not afforded procedural fairness seeking to set it aside: Re Harris Scarfe Ltd (in liq) (No 3) [2008] SASC 74; 216 FLR 242 at [17], per Debelle J.

47    Inherent in that solution, of course, is the creation of a state of uncertainty, which is itself a relevant consideration in the exercise of the discretion. The relevant dimensions of the issue are elucidated in the list of considerations identified in Fortress Credit v Fletcher at [25]-[26], and set out at [3(f)] above. I have had regard to each of those matters, but do not consider that they provide a reason not to make the orders sought in this case.

48    In particular, on this application, of relevance to the assessment of both prejudice and procedural fairness is the fact that certain third parties upon whom future proceedings might be expected to focus were served with copies of the originating process and key evidence in these proceedings. Service was effected on Mr Kong, OZB Group, AZAU Global, Tech Century and KY Enterprises Hong Kong. Orders for substituted service were made (and complied with) in relation to Mr Victor Kong. Mr Kong sent an email to the solicitors for the liquidators stating that he did not wish to be heard in relation to the application. No other company or person sought to appear.

49    At least as things presently appear, any voidable transaction claims that are pursued are likely to be against individuals or companies that have some family connection to Mr Kong. In those circumstances, I accept the liquidators’ submission that the potential for actual prejudice diminishes. That is because the persons most likely to be affected by the claims were either controlling the company or the associated entities with which it did business, or closely related to them and otherwise involved in the business, at the time of the potential voidable transactions. If a question is raised about particular transactions in the future, they are likely to be well placed to answer it. In this respect the case bears some similarity to Vaughan v Catanzariti, in the matter of Italian Prestige Jewellery Pty Ltd (in liq) [2018] FCA 1403, at [41], per Markovic J. Mr Kong, his son, and several family companies were served with these proceedings. Mr Kong has been (and will again be) examined by the EncoreFX liquidators in relation to the affairs of the company. At least so far as Mr Kong’s immediate family and their corporate interests are concerned, therefore, I am satisfied that if they had wished to raise the possibility of prejudice they could have done so. The evidence before me does not indicate the existence of any specific prejudice that I should take into account.

50    The presumptive prejudice that flows from the passage of time should not be disregarded or trivialised. That is especially so in circumstances where Parliament has prescribed a limitation period of three years, reflecting a legislative policy favouring “certainty for those who have entered into transaction with the company during the periods in respect of which designated transactions may be voidable”: Fortress Credit v Fletcher at [24]; see also BP v Brown at [111]-[118]. Nevertheless, the provision for an extension to be granted in an appropriate case makes pellucid that conflicting interests are to be balanced to achieve a result that is fair and just in all the circumstances.

Resolution

51    When the presumptive prejudice that prospective defendants may suffer is weighed against the reasons why the liquidators were unable to commence proceedings within the prescribed time limit, the apparent merit in the investigations proposed to be carried out, the lack of identified specific prejudice, and the loss that would be suffered by all creditors of the company if the liquidators were not granted the requested extension, I am satisfied that it is fair and just in all the circumstances to grant an extension.

52    The final question is whether the period of one year sought by the liquidators is appropriate. In determining that question, it is appropriate to have regard to events that have occurred after these proceedings were commenced. In the time that has elapsed since this application was filed, it is apparent that EncoreFX’s investigation has not moved as quickly as had been anticipated. At the very least, public examinations that were anticipated to be held in September 2024 did not commence until late November 2024, and have now been adjourned until March 2025. It appears that the primary reason for that delay has been difficulties in serving the proposed examinees. The liquidators did not suggest that the originally requested date of 18 July 2025 was no longer feasible. That position was appropriate, in circumstances where there will remain a period of some four months from the conclusion of the scheduled examinations to the requested extension date, which seems to me to be an adequate, but not excessive, period within which the liquidators of EncoreFX and the company will be able to formulate and, if considered appropriate, bring any application under s 588FF(1). It follows that I am prepared to grant the requested extension.

Associate:

Dated:    21 February 2025