Federal Court of Australia

Nipps (Liquidator), in the matter of Ochre Group Holdings Limited (in liq) (No 4) [2025] FCA 1132

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 10.44 of the Federal Court Rules 2011 (Cth), the plaintiff has leave to serve the order made by the Court on 12 August 2025, directing Mr Craig Benington to produce documents to the Court pursuant to s 597(9) of the Corporations Act 2001 (Cth), on Mr Benington outside Australia and in accordance with the laws of New Zealand.

2.    Pursuant to r 10.44 of the Rules, the plaintiff has leave to serve the orders made by the Court on 12 August 2025, directing the proper officer of Findex NZ Limited (NZBN: 9 4290 3686 9831) to produce documents to the Court pursuant to s 597(9) of the Act, on the proper officer of Findex outside Australia and in accordance with the laws of New Zealand.

3.    The time for compliance by Mr Benington and the proper officer of Findex respectively with the 12 August 2025 orders referred to in orders 1 and 2 above be extended to 2.30 pm (AWST) on Monday, 13 October 2025.

4.    Pursuant to r 10.44 of the Rules, a copy of this order must also be served on Mr Benington and the proper officer of Findex in accordance with the laws of New Zealand, thereby informing them of the extension of time for compliance with the 12 August 2025 orders.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    Ochre Group Holdings Limited is an unlisted public company which entered into a members' voluntary liquidation on 14 October 2020. The plaintiff, Jeremy Nipps, is the liquidator of the company.

2    On 1 March 2023, on the application of Mr Nipps, a registrar of this Court made orders providing for the public examination of a number of people involved in the examinable affairs of Ochre and associated production of documents.

3    The examination and document production process has continued since that time.

4    Relevantly, public examinations under s 596A and s 596B of the Corporations Act 2001 (Cth) are proceeding in relation to each of Mr Michael Povey, Mr Charles Straw, Mr Nathan Featherby and Mr Made Sumarya.

5    Background information is contained in previous judgments of this Court, particularly those of Jackson J in Nipps (Liquidator), in the matter of Ochre Group Holdings Limited (in liq) [2023] FCA 687 (Nipps (No 1)) and Nipps (Liquidator), in the matter of Ochre Group Holdings Limited (in liq) (No 2) [2023] FCA 700.

6    In addition to orders made by way of those judgments, registrars of this Court have made a number of related orders in the context of the extant public examinations. Relevantly, on 12 August 2025 a registrar made orders under s 597(9) of the Corporations Act that each of the proper officer of Findex NZ limited and Craig Benington produce specified categories of documents relating to the affairs of identified companies (and in identified categories).

7    The issue before me is limited to overseas service of the Findex and Benington orders in New Zealand.

8    The evidence before me discloses that within certain filed company documents, Mr Benington is identified as having a current listed residential address in Queenstown, New Zealand. Findex is registered on the New Zealand Companies Register and the address of the proper officer of Findex is identified as being Auckland, New Zealand.

9    Whilst the Trans-Tasman Proceedings Act 2010 (Cth) (TPPA) seeks to streamline proceedings with a trans-Tasman element, and in that context provides for service of certain documents in Australian proceedings on persons in New Zealand, it does not expressly deal with the service of orders or directions that have been issued by the Court pursuant to s 597(9) of the Corporations Act.

10    For example, the TPPA deals with the service of 'initiating documents' (Part 2) and 'Australian subpoenas' (Part 5 Division 2) in New Zealand, neither the Benington nor the Findex orders may be characterised as such.

11    'Initiating documents' are limited to documents by which a civil proceeding is commenced in an Australian court or tribunal or documents by reference to which a person becomes a party to such proceedings. Nor are the orders of the character of subpoenas.

12    It is therefore appropriate to consider Part 10, Div 10.4 of the Federal Court Rules 2011 (Cth), which governs service of documents outside Australia.

13    Rule 10.43 of the Rules sets out the requirements as to when an originating application may be served outside Australia with leave of the Court.

14    Rule 10.44 of the Rules provides to the effect that any document other than an originating application may be served outside Australia with leave of the Court, which may be given with any directions that the Court considers appropriate.

15    Rule 10.46 of the Rules provides that a document that is served outside Australia need not be personally served on a person so long as it is served on the person in accordance with the law of the country in which service is effected.

16    In determining an application for leave under r 10.44 of the Rules, the Court may consider the matters which arise under r 10.43 of the Rules: Nipps (No 1) at [10(5)].

17    Accordingly, the Court may consider, including from any affidavit material filed, whether:

(a)    the proceeding has a real and substantial connection to Australia;

(b)    Australia is an appropriate forum for the proceeding; and

(c)    in all the circumstances the Court should exercise jurisdiction.

18    I have had regard to the four affidavits provided by Mr Nipps and filed in support of this and the previous applications relating to Ochre. All or some of those affidavits are subject to suppression orders under s 37AF of the Federal Court of Australia Act 1976 (Cth), which is not unusual for affidavits filed by liquidators that contain information relating to the scope and purpose of public examinations.

19    Mr Nipps submitted that the Court should be satisfied that it is appropriate to exercise its discretion and order that he be permitted to serve the Findex and Benington orders in New Zealand and in accordance with the law of New Zealand because:

(a)    the proceeding has a real and substantial connection to Australia and Australia is the appropriate forum for the proceeding – Ochre is an unlisted Australian public company with an Australian based liquidator appointed to it (Nipps (No 1) at [12]);

(b)    the Benington and Findex orders have been issued by the Court in aid of the extant public examinations of Mr Povey, Mr Straw, Mr Featherby and Mr Sumarya and Mr Nipps' ongoing investigations into the examinable affairs of Ochre;

(c)    Mr Benington and the proper officer of Findex may have documents within their possession, custody or control relating to the public examinations and the examinable affairs of Ochre;

(d)    the documents sought under the Benington and Findex orders are documents he considers on reasonable grounds cannot reasonably be obtained by other means (noting his previous attempts to seek such documents from other persons and relevant entities) and may be obtained with less inconvenience to Mr Benington or the proper officer of Findex; and

(e)    the documents, if produced, will likely aid and inform Mr Nipps' ongoing investigations into Ochre’s examinable affairs and his consideration of the identified transactions and claims he intends to address in the public examinations.

20    I accept Mr Nipps' submissions and am satisfied that it is appropriate to make the orders sought, having regard to each of r 10.46, the evidence of Mr Nipps and the matters regarding Ochre that are already publicly disclosed by the previous judgments.

21    It will be for Mr Nipps to establish in due course, should it be required, that service has been effected in accordance with the laws of New Zealand.

22    Separately, the Benington and Findex orders that Mr Nipps seeks to serve required production by 15 September 2025. In the circumstances, I will extend the time for compliance with those orders to 2.30 pm (AWST) on Monday, 13 October 2025.

Associate:

Dated:    12 September 2025