Federal Court of Australia

Metledge v Woori International Pty Ltd, in the matter of TJM Holdings Group Pty Ltd [2025] FCA 1130

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed on 8 September 2025 (Interlocutory Application) be dismissed.

2.    The plaintiff is to pay the second and third defendants’ costs of and incidental to the Interlocutory Application, as taxed or agreed.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

HALLEY J:

A.     Introduction

1    By an interlocutory application filed on 8 September 2025, the plaintiff, Mr Tony Joseph Metledge, who I will refer to as the applicant in these reasons, seeks an order that the winding up of TJM Holdings Group Pty Ltd (TJM) be stayed, pending the final determination of an application for review of a decision of a registrar pursuant to s 35A(5) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) (s 35A(5) review application). The applicant is the sole director and shareholder of TJM.

2    Significantly, the applicant also seeks an injunction restraining the second and third defendants (Liquidators) from (a) distributing any funds held in their possession or control belonging to TJM, (b) making any payments to a creditor, Woori International Pty Ltd (Woori), from the estate of TJM, (c) incurring any further costs or expenses on behalf of TJM except those reasonably necessary for the preservation of assets, and (d) taking any steps to finalise the liquidation or wind up the affairs of TJM, pending the determination of the s 35A(5) review application.

3    In addition, the applicant seeks an inquiry into the external administration of TJM under Div 90 of Sch 2 to the Corporations Act 2001 (Cth) (Corporations Act), including but not limited to the conduct of the Liquidators in carrying out their statutory duties, whether there has been any breach of fiduciary duties owed to TJM and its contributors, whether the Liquidators have failed in their duty of care, diligence and skill, whether the Liquidators’ conduct in refusing to consent to a termination under s 482 of the Corporations Act after receiving AUD 195,030.00 into their trust account was unreasonable, and whether the Liquidators’ fees and costs now exceeding, it is alleged, AUD 300,000.00, were excessive.

4    The interlocutory application is supported by an affidavit of Ms Mary Metledge, a solicitor and the mother of the applicant, sworn on 3 September 2025, and an affidavit of the applicant, sworn on 3 September 2025.

B.     Background

5    On 12 February 2025, TJM was ordered to be wound up by Registrar Curnow. The winding up orders were based on a statutory demand founded on a New South Wales Civil and Administrative Tribunal decision dated 28 June 2023 and a costs order made on 25 September 2025.

6    There is no dispute that TJM is solvent. Its assets include (a) a real property located at 52 The Boulevarde, Strathfield NSW 2135 (52 The Boulevarde), valued at AUD 6,500,000.00 as of 22 February 2023, encumbered by a mortgage to Commonwealth Bank of Australia, (b) an unencumbered real property located at 6/369 Illawarra Road, Marrickville NSW 2024, valued at AUD 550,000.00 as of 14 February 2025, (c) an amount in excess of AUD 1,000,000.00, comprising the net proceeds of sale of the real property located at 32 Isabella Street, North Parramatta NSW 2151, (d) rental income from 52 The Boulevarde in the amount of AUD 8,085.00 per month (including GST).

7    The applicant gives evidence, that was not contested by the Liquidators, that as at 8 September 2025, the only admitted creditor debt of TJM is an amount of AUD 38,888.00 allegedly owed to Woori. Even after taking into account the costs of the Liquidators, including legal costs arising from proceeding brought against them by the applicant, I am satisfied, as submitted by counsel for the Liquidators, that TJM’s assets substantially exceed its liabilities.

8    This matter was brought before me as duty judge on an urgent basis because the Liquidators have informed the applicant that at the conclusion of this interlocutory hearing or at 5.00 pm today, 9 September 2025, whichever comes first, they propose to proceed with a distribution and then finalise the liquidation of TJM.

C.     Legal principles

9    The relevant test for the granting of interlocutory relief is well established. In short, the Court must be satisfied that (a) there is a serious question to be tried, (b) the applicant is likely to suffer injury for which damages will not be an adequate remedy, and (c) the balance of convenience favours the granting of the interlocutory relief: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [19]; Beecham Group v Bristol Laboratories Proprietary Limited (1968) 118 CLR 618.

D.     Consideration

10    The fundamental difficulty with the interlocutory application is that it does not raise a serious question to be tried.

11    The interlocutory application is brought under s 35A(5) of the FCA Act, which provides:

A party to proceedings in which a registrar has exercised any of the powers of the Court under subsection (1) may, within the time prescribed by the rules of Court, or with any further time allowed in accordance with the rules of Court, apply to the Court to review that exercise of power.

12    Relatedly, s 35A(6) provides:

The Court may on application under subsection 5 or of its own motion review an exercise of power by a registrar pursuant to this section and may make such order or orders it thinks fits with respect to the matters with respect to which the power was exercised.

13    The difficulty with the relief sought by the applicant is that he was not a party to the proceeding before Registrar Curnow. That is fatal to the interlocutory application. Both s 35A(5) and s 35A(6) of the FCA Act presuppose an application made by a party to the proceeding in which the registrar has exercised the relevant power that is sought to be reviewed: Deputy Commissioner of Taxation v Apollo Kitchens (NSW) Pty Limited, in the matter of Apollo Kitchens (NSW) Pty Limited [2024] FCA 282 at [6] and [12]-[13] (Lee J); Complete Constructions (Aust) Pty Limited v Geoff Manny Proprietary Limited (In Liquidation), in the matter of Jeff Manny Pty Limited (In Liquidation) [2014] FCA 293 at [27] (Foster J).

14    It may be open for the Court “of its own motion” to review the exercise of power by a registrar pursuant to s 35A(6) of the FCA Act. I am not, however, persuaded on the material before me that it would be appropriate to do so in this case independently of a proceeding brought by a party to the proceeding before Registrar Curnow, not least because of the history of this matter, which I summarise below, and because of the interests of justice, including the imminent finalisation of the liquidation of TJM and its return to the control of applicant as a solvent company.

15    The applicant has advanced a series of prior applications since February 2025 – misconceived as they might have been – under s 35A(5) of the FCA Act, and more importantly, under s 482 of the Corporations Act, seeking an order staying the winding up of TJM.

16    It is clear that the proper procedural mechanism would have been for the applicant, as the sole shareholder of TJM, and therefore its contributory, to seek an order under s 482 of the Corporations Act staying the winding up of TJM. It has, however, become apparent in the course of the hearing before me today that the applicant’s prior s 482 application was allegedly brought contrary to instructions and consequently, that application was not proceeded with. The fact that the applicant had chosen the correct course earlier this year but had, for reasons which were not apparent, then allowed the s 482 application to be dismissed presents a significant difficulty for him.

17    Similarly, the earlier application under s 35A(5) of the FCA Act was not pursued but, in any event, as explained at [13] above, was fundamentally flawed.

18    In these circumstances, and in the absence of any serious question to be tried, there is no basis upon which I could grant the interlocutory relief sought by the applicant in the interlocutory application.

19    I further note that (a) the Liquidators have confirmed that the winding up of TJM, including the distribution of assets, is expected to take place within a relatively short period, potentially in the vicinity of two weeks, and (b) as part of the conclusion of the winding up, the Liquidators will themselves bring an application under s 482 of the Corporations Act for the winding up to be terminated and for the control of TJM to be returned to the applicant. Once that has taken place, the applicant will be in a position to pursue any claims that he considers TJM may have against (a) Woori, who, according to the applicant, has procured its debt, resulting in the winding up of TJM by fraud, and (b) the Liquidators in relation to the applicant’s allegations of improper conduct and breach of duties in the administration of TJM.

20    The balance of convenience therefore does not point in any particular direction, as there is a very high prospect of the winding up of TJM being terminated shortly in any event and TJM being returned in solvency to the control of the applicant, who would then be able to advance whatever relief he considers TJM might be entitled to pursue. In any event, as set out at [18] above, the absence of any serious question to be tried precludes the grant of the introductory relief sought pursuant to the interlocutory application.

E.     Disposition

21    For the foregoing reasons, the interlocutory application is to be dismissed. As the applicant has been unsuccessful, he should pay the Liquidators’ costs of and incidental to the interlocutory application.

Associate:

Dated:    12 September 2025