Federal Court of Australia

GGPG Pty Ltd (Receiver and Manager Appointed) v Golden Eagle Property Group Pty Ltd (No 2) [2025] FCA 1620

ORDERS

THE COURT ORDERS THAT:

1.    Leave is granted to the respondents to amend their defence in the terms of the draft Amended Defence to the Amended Statement of Claim attached to the interlocutory application dated 25 November 2025, save for the amendments to paragraph 1C and the insertion of paragraph 41A (amended defence).

2.    The amended defence must be filed and served by 4 pm on 19 December 2025.

3.    Any reply to the amended defence is to be filed and served by 4 pm on 12 January 2026.

4.    The orders made on 5 September 2023 and 17 July 2025 directing that this proceeding be heard together with proceeding QUD 93 of 2022 are set aside.

5.    The case management orders made on 17 July 2025, and as subsequently amended, numbered 7 through to 20 are set aside.

6.    Any further affidavits that the applicant intends to rely on at the trial must be filed by 4 pm on 19 January 2026.

7.    By 23 January 2026, the legal practitioners for the parties must confer to do the following:

(a)    agree and settle a chronology of the material events;

(b)    agree and settle a statement of agreed facts in chronological order;

(c)    agree and settle a list of issues for determination at the trial; and

(d)    agree on the common documents for the trial that will be tendered without objection, limited to those documents that are material and which will be referred to in the evidence.

8.    The applicant is to file and serve a court book in electronic format by no later than 4 pm on 30 January 2026 which complies with the Court practice direction for eBooks (GPN-eBOOKS) as a single paginated PDF document to be divided into five parts:

(a)    Part A: Current pleadings;

(b)    Part B: Witness statements or affidavits to be relied upon by the parties, separately divided as between the applicant and the respondent;

(c)    Part C: The agreed chronology and list of material events; and

(d)    Part D: The documents listed in strict chronological order, with those documents about which there is a dispute as to admissibility or which are to be treated as confidential to be clearly identified.

9.    No document is to be included in the court book unless counsel for the party requiring its inclusion considers that the document is relevant to resolution of the material issues, that inclusion is consistent with the overarching purpose at ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) and the document will be referred to in the evidence (including cross-examination) and or the submissions of that party.

10.    No document is to be included in the court book more than once.

11.    The applicant is to file and serve an outline of opening submissions adopting the format of the agreed list of issues for determination and limited to no more than 20 pages, minimum 12-point typeface, one and a half line spacing, by 4 pm on 3 February 2026.

12.    The respondents are to file and serve an outline of opening submissions, limited to no more than 20 pages, minimum 12-point typeface, one and a half line spacing, by 4 pm on 5 February 2026.

13.    The matter is set down for hearing in Brisbane commencing at 10.15 am on 9 February 2026 on an estimate of two days.

14.    Artificial intelligence must not be used to assist in the preparation of any witness statement or affidavit.

15.    If artificial intelligence is used to assist in the preparation of any other document, there must be disclosure of that fact.

16.    The costs of the interlocutory applications of the applicant dated 28 November 2025 and of the respondents dated 25 November 2025 are reserved.

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

REASONS FOR JUDGMENT

MCELWAINE J:

1    The fracturing of the commercial relationship between two Queensland property developers, Marc Clancy and Terence So in December 2021, has led to many interlocutory disputes and the incurring of huge legal costs in this Court. Thus far the trial of the proceedings (QUD 93 of 2022 and QUD 462 of 2022) has been adjourned four times, most recently on 24 November 2025.

2    These reasons resolve two of the five interlocutory applications that I heard on 10, 11 and 12 December 2025. I set out the general background to the disputes, including the agreed nomenclature for the multifarious parties in CIP Group Pty Ltd v So (No 11) [2025] FCA 1547 at [1]-[13]. These reasons assume familiarity with that summary.

3    These reasons are concerned with QUD 462 of 2022 where the applicant is GGPG Pty Ltd (Receiver and Manager Appointed) and the respondents are Golden Eagle Property Group Pty Ltd, David Alexander John Whiteman and Marc Clancy (Golden Eagle parties). The Receiver and Manager is Marcus Jon Watters, who was appointed on or about 16 December 2021 by Ultimate Investment Portfolio Pty Ltd. Marc Clancy at all material times was a director of GGPG together with Terence So. David Whiteman at all material times was the sole director of Golden Eagle. Golden Eagle was part of the Golden Gate Property Group of companies assembled by Marc Clancy and Terence So to undertake developments, particularly the subdivision of land for residential development and use. A development that is central was known as Carver’s Reach, a residential subdivision of approximately 600 lots at Logan in Queensland.

4    The core of the dispute in this proceeding concerns a parcel of land at 202 Park Ridge Road, Park Ridge (the property). It adjoins the Carver’s Reach development and was acquired by Golden Eagle in circumstances where GGPG contends that it was a commercial opportunity that should have been acquired for its benefit. That flows from the contention that Marc Clancy and David Whiteman acted in breach of their statutory and fiduciary duties in causing Golden Eagle to enter into an option agreement to purchase the property when, acting properly, they were obliged to acquire it for the benefit of GGPG. The proceeding was initially commenced in the Supreme Court of Queensland but was transferred to this Court pursuant to orders made on 28 September 2022. When the proceeding was in the Supreme Court, orders were made on 8 April 2022 for the property to be transferred to Park Ridge 180 Pty Ltd as the nominated purchaser pursuant to the option agreement. The Receiver of GGPG is also the receiver and manager of Park Ridge. Those orders were interlocutory and were made on the basis of undertakings given by the Receiver, being the usual undertaking as to damages and a more complex undertaking to the effect that he would in his capacity as receiver and manager of GGPG and Park Ridge complete and execute a call option notice, complete the required contract of sale as the purchaser, pay the purchase price of $2,250,000 and would not until trial, earlier order or with the written agreement of the parties, transfer, encumber or otherwise deal with the property. The purchase was completed and Park Ridge became the registered proprietor. That remains the case.

5    Presently, the scope of the dispute between GGPG and the Golden Eagle parties is framed by the Amended Statement of Claim filed on 23 December 2022, the Defence filed on 21 March 2023, and the Reply filed on 5 June 2023. There is also a cross-claim brought by Golden Eagle against GGPG and Park Ridge. The gravamen of that claim is that by reason of Park Ridge becoming the registered proprietor of the property, Golden Eagle lost its entitlement under the option to acquire it either by itself or by a nominee, lost all of the benefit that it had acquired as the contracting party, lost the benefit of the security deposit and has been unjustly deprived of the value of the property with its development potential. Golden Eagle seeks relief that the orders made in the Supreme Court be set aside together with a mandatory order requiring Park Ridge to transfer the property to it, less the amount of the purchase price paid by Park Ridge. Alternatively, an order restoring to Golden Eagle the value of the benefit obtained by Park Ridge. GGPG denies that such relief is available to Golden Eagle. The scope of the dispute in the cross-claim is framed by the Amended Statement of Cross-Claim filed 21 March 2023, the Defence filed 5 June 2023 and the Reply of 9 June 2023.

6    This proceeding was ordered to be heard together with proceeding QUD 93 of 2022 on 5 September 2023 and 17 July 2025. Each proceeding was listed for trial to commence on 24 November 2025, with an estimate of six weeks (with provision for the fifth and sixth weeks of the trial to resume on 9 February 2026). The trial has not commenced because in each proceeding, the Clancy parties in proceeding QUD 93 of 2022 on 20 November 2025 (one business day before the commencement of the trial) applied for leave to make substantial amendments and, on 25 November 2025, applied for leave to make substantial amendments in this proceeding (amendment application). Those applications caused the So parties and the TM parties in proceeding QUD 93 of 2022 to apply by interlocutory application that the derivative leave granted to the corporate applicants (each controlled by Marc Clancy) nunc pro tunc to commence and prosecute the proceeding in the name of and on behalf of the Carver’s Reach entities, be revoked.

7    Separately, in this proceeding GGPG applies by interlocutory application dated 28 November 2025, that the orders made on 5 September 2023 and 17 July 2025 be set aside and that this proceeding be listed for trial with an estimate of two days to commence on 9 February 2026 (severance application).

8    For the reasons that follow I grant leave to amend limited to the amendments that are not controversial, I refuse leave to amend to add new contentions, and I set aside the orders that required this proceeding to be heard concurrently with proceeding QUD 93 of 2022.

9    Dealing first with the amendment application, the justification for the late amendments is that Marc Clancy has very recently been charged by officers of the Queensland Police Service with 22 counts of fraud where the facts overlap with matters raised by the So parties in their defence of proceeding QUD 93 of 2022. Marc Clancy maintains his privilege against self-incrimination and the evidence of the solicitor for the Clancy parties, Benjamin Timothy Cohen, is that in consequence he will not give evidence in either proceeding. In proceeding QUD 93 of 2022 there is a dispute that needs to be resolved as to when that advice was first conveyed to Benjamin Cohen. There is also a large dispute about complaints made by Terence So to the police and whether in the circumstances I should find that he intentionally made complaints for the purpose (and with the intent) of interfering with the administration of justice in that proceeding. There is also the question whether derivative leave should be revoked. In this proceeding those matters may be put to one side, as resolution of the amendment application and the severance application raise issues that are less complex.

10    The Golden Eagle parties in defence, apart from some admissions and numerous denials, plead a positive defence to the effect that in July or August 2017, Golden Eagle ceased to be used as a special purpose vehicle within the Group, at which time Terence So orally agreed with David Whiteman that he (Whiteman) could use it for his own purposes. Thereafter, in a series of email exchanges the possible purchase of the property was discussed with the intent that it would become an asset of the Group. The negotiations did not proceed because the vendor was perceived to be asking for an excessive price. That did not, however, conclude the negotiations. In or about May 2020, David Whiteman presented a vendor offer at a price of $2.5 million to Marc Clancy and Terence So, and in response to which Terence So said words to the effect “tell them to get fucked” and through other statements made it clear that the Group was not interested in acquiring the property. It is further contended that by September 2020, Terence So had told David Whiteman that neither GGPG nor any other corporation in the Group, had funds available for further property acquisitions and that upon completion of the existing stages of the Carver’s Reach development that project would conclude. Once that position had been made clear, David Whiteman continued to negotiate purchase the property in his capacity as an officer of Golden Eagle and on behalf of Marc Clancy. Thus, there was no breach of any statutory duty of David Whiteman or Marc Clancy, no breach of any corresponding fiduciary duty, the property was not an opportunity available to (and no obligation was owed to acquire it for the benefit of) GGPG. This founds various concluding defences framed as full disclosure, consent and that it would be unconscionable or inequitable for the Court to grant the relief claimed by GGPG.

11    The effect of the amendment application, if granted, is to abandon components of the paragraphs which found the positive defences: 2A, 2C, 2G, 16(e), 19, 21, 22(f), 22B, 27, 31, 32, 33, 33A, 35, 36, 37, 38, 39, 40, 41 and 42. Benjamin Cohen in his affidavit of 25 November 2025, states that these amendments reflect the fact that the Golden Eagle parties no longer seek to prove these matters at trial because of the police investigation concerning the conduct of Marc Clancy and to preserve his right to privilege against self-incrimination. In consequence, no witnesses will be called at the trial for the Golden Eagle parties. The difficulty with that evidence is the failure to explain why David Whiteman is unavailable or unwilling to give evidence, noting that he is on the pleading the primary person who dealt with Terence So and conducted the negotiations to purchase the property. In cross-examination, Benjamin Cohen accepted the absence of any relationship between Marc Clancy’s evidence and the decision not to call David Whiteman as a witness. This leads to rejection of one of the submissions of Mr Pomerenke KC for the Golden Eagle parties: that the decision is reflective of the fact that the case could not be “closed off” without the evidence of Marc Clancy. Further, this does not explain why Marc Clancy could not have given evidence in this discrete proceeding where the allegations of fraud are not relied on by GGPG. Nor does it explain why evidence of separate discussions between Terence So and Marc Clancy underpin the evidence of the direct discussions between Terence So and David Whiteman that are pleaded as central to the defence.

12    In any event, Mr Handran KC for GGPG and the Receiver does not oppose the amendments to the extent that the positive case is abandoned and it would be perverse on my part to refuse the deletions in that circumstance.

13    The contentious amendments are to paragraphs 1C and 41A. In short, the Golden Eagle parties seek to plead for the first time that the entire proceeding is irregular because it may be held in proceeding QUD 93 of 2022 that the Ultimate loan and security documents should be set aside. In detail the proposed pleading is (where the amendments are reflected in underlined type):

1C As to paragraph 1C of the statement of claim, the respondents:

(a)    Deny that the Golden Gate Property Group remains in its Business carrying on the property development at Carver’s Reach and say that: because

(i)     On or about 16 December 2021 Mr the Receiver of Hall Chadwick was appointed receiver and manager of the applicant and other companies in the Golden Gate Property Group (the Receivership) by Ultimate Investment Portfolio Pty Ltd a company of which Mr So was from its incorporation until 31 October 2021, its sole director with his wife, Ms Kei Yan Tsang, as its “alternate director” from 1 November 2021;

(iA)     The Receivership appointment was made pursuant to documents dated 29 November 2019 which are referred to in paragraph 68 of the statement of claim in proceeding no. QUD 93/2022 (the Ultimate documents);

(iB)     The Receiver brings this proceeding in the name of the applicant and defends the cross-claimant’s cross-claim in the name of the applicant and the second cross respondent pursuant to powers conferred on him by the Ultimate documents;

(iC)     In proceeding no. QUD 93/2022 in this court, the applicant, the second cross -respondent and other companies in the Golden Gate Property Group seek to set aside the Ultimate documents on the basis that:

(A)     the entry into those documents;

(B)     further or alternatively, the enforcement of Ultimate’s rights under those documents,

occurred in circumstances where Mr So was acting in breach of his statutory and fiduciary duties to the applicant, the second cross-respondent and other companies in the Golden Gate Property Group;

Particulars

The entry into and enforcement of the Ultimate documents is the subject of the breaches of duty pleaded in the second further amended statement of claim filed in QUD 93/2022 at [112]-[117] and [122]-[128].

The consequences of those breaches include the relief sought at [159] of the second further amended statement of claim filed in QUD 93/2022 and [1]-[4] of the prayer for relief.

(iD)     In the event that the applicant and the other companies in the Golden Gate Property Group succeed in setting aside the Ultimate documents:

(A)     the appointment of the Receiver will have been invalid;

(B)     the Receiver will have, and will have had, no power or authority to bring this proceeding in the name of the applicant or to defend the cross-claim brought by the first respondent against the applicant and the second cross-respondent;

…

41A Further, and in response to the whole of the statement of claim, by reason of the matters pleaded in subparagraphs 1C(a)(i) to (iD) above, this proceeding is an irregularity and, absent ratification by an authorised agent, must be dismissed, or alternatively permanently stayed.

14    In summary, Mr Pomerenke submits that leave should be granted to add these contentions because, accepting that the amendments were proposed at a very late stage, the effect is to narrow the matters in dispute and to reduce the defence to a legal conclusion which flows from the relief sought in proceeding QUD 93 of 2022. The submission continues that the amendments are to align the pleading with the case as set out in the opening submissions filed on 23 November 2025, there is limited (if any) prejudice to GGPG in that the Receiver has had knowledge of the relief sought in proceeding QUD 93 of 2022 since February 2023 and “has participated in that proceeding since that time”.

15    Mr Handran submits otherwise. The case of GGPG is a straightforward application of the fiduciary conflict principle. The amendments sought by the Golden Eagle parties can only ever have effect if the findings that they seek in proceeding QUD 93 of 2022 are made. On the evidence, I should find that the authority of the Receiver to prosecute the proceeding was affirmed by Marc Clancy in April 2022; it is open to the liquidator of GGPG to ratify the retainer of the applicant’s solicitor and the Golden Eagle parties have, with full knowledge of the relevant circumstances, accepted the retainer and standing to sue of the Receiver (or at least have acquiesced in each).

16    Some uncomplicated factual findings are required. Thomson Geer were first appointed to act for the Clancy parties in proceeding QUD 93 of 2022. The originating process filed on 28 March 2022, did not seek relief to the effect that the Ultimate loan and security documents should be set aside. Rather, the relief sought declarations that Terence So contravened his statutory duties at ss 180, 181 and 182 of the Corporations Act 2001 (Cth) and formulated, amongst other things, a claim for damages. It included an application for relief pursuant to the oppressive conduct provisions at ss 232 and 233.

17    On 31 March 2022, Thomson Geer sent correspondence to Thynne & Macartney (the solicitors for GGPG) concerning the relief sought in proceeding QUD 93 of 2022. Amongst other things, it was said:

Our clients do not seek leave to issue derivative proceedings in order to set aside the Ultimate Loan Agreement.

…

Accordingly, we consider that the only parties whose interests are engaged, and who will necessarily need to participate in the Proceedings and the proposed derivative proceedings are Mr So and Ultimate.

To the extent that paragraph 7 of the Originating Process seeks relief against the companies pursuant to section 233(1)(e) of the Act, we note that any such relief would not affect your client and would not impede his conduct of the receivership.

18    On 1 April 2022, Thomson Geer again corresponded with Thynne & Macartney concerning proceeding QUD 93 of 2022. In answer to a query concerning the proposed derivative proceedings it was stated:

We are instructed that our clients will not plead in the proposed derivative proceedings that the Ultimate Loan Agreement or your client’s appointment is somehow invalid. So that we are clear, no relief will be sought against your client (and quite explicitly, the Receiver is not known personally as a party to the Proceeding).

19    On 8 June 2022, Thomson Geer sent correspondence to Colin Biggers & Paisley (solicitors for the So parties) and Thynne & Macartney. Reference was made to this proceeding as then underway in the Supreme Court and an application made by the So parties for a stay of proceeding QUD 93 of 2022 until determination of the Supreme Court proceeding. Amongst other things, Thomson Geer observed:

The stay application relies on the existence of the Supreme Court Proceeding. Our client does not consider that there is any merit in the assertion that this requires a stay. That claim is being progressed on behalf of GGPG by the Receiver. It does not need to be agitated again by Mr So as a derivative claim.

It is likely that [proceeding 93 of 2022] will become the forum for reckoning of all disputes regarding the quasi partnership between Mr Clancy and Mr So, save for 202 Park Ridge Road. We consider that issues regarding 202 Park Ridge Road could be moved into [proceeding 93 of 2022] as identified below, allowing the unnecessary costs of the receivership to be terminated.

Assuming the Receiver has completed the Contract, or will shortly do so, and it is in fact the case that the Supreme Court proceedings are the principal impediment to the timely conclusion of the receivership, it seems apparent that the most commercially appropriate way forward for the Clancy and So interests is as follows…

20    In summary the proposal was that the Supreme Court proceeding be stayed or adjourned by consent and that the So entities plead the 202 Park Ridge Road case in their intended derivative claim. No contention was then made that the Receiver was invalidly appointed.

21    By June 2022, Bartley Cohen had been appointed to act for the Clancy parties and the Golden Eagle parties. On 17 June 2022, Bartley Cohen proposed that the Supreme Court proceeding be transferred to this Court as “the most appropriate and efficient course”. No contention was made that the appointment of the Receiver was invalid. On 30 June 2022, Bartley Cohen corresponded with Thynne & Macartney. In the third paragraph it was observed:

Your client is appointed by a company associated with Mr So and your client’s duties include that he realise the assets for the benefit of that appointor company.

22    That statement is inconsistent with any claim of invalidity in the appointment. On 12 January 2023, Bartley Cohen served the Defence and Notice of Cross-Claim and Statement of Cross-Claim in this proceeding. No plea of invalidity in the appointment of the Receiver was raised.

23    In separate proceedings commenced in 2022 by CIP Group Pty Ltd and other entities associated with Marc Clancy (QUD 222 of 2022), the applicants sought an inquiry into the conduct of the Receiver in his capacity as receiver and manager of companies in the Group pursuant to s 423 of the Corporations Act. The application was refused by Downes J, and an appeal to the Full Court was dismissed: CIP Group Pty Ltd v Watters in his capacity as receiver and manager of GGPG Pty Ltd [2023] FCA 329; CIP Group Pty Ltd v Watters in his capacity as receiver and manager of GGPG Pty Ltd [2024] FCAFC 5; (2024) 301 FCR 600, Halley, Goodman and McElwaine JJ. In an outline of submissions in support of orders for the conduct of an inquiry dated 13 February 2023, counsel for the applicants made no assertion to the effect that the appointment of the Receiver was invalid. What was sought was an inquiry into the actions of the Receiver in his capacity as receiver and manager in taking certain steps, or omitting to take other steps, related to the sale of the properties the subject of the secured creditor mortgages – that is to say, the Ultimate securities. Implicitly, that proceeding was brought on the basis that the inquiry was sought in relation to the actions of an individual validly appointed as receiver and manager.

24    On 10 February 2023, Bartley Cohen served an Amended Originating Process and Statement of Claim in proceeding QUD 93 of 2022 by email addressed to Colin Biggers & Paisley and copied to Thynne & Macartney. The covering letter observed that the scope of the relief had been expanded to include “in relation to the purported loan agreement and purported securities”. The documents attached to the letter, as filed on 10 February 2023, sought in various ways declaratory relief that the “purported” loan and security documentation of Ultimate be set aside together with an order pursuant to s 1324 of the Corporations Act “preventing the Receiver from continuing to carry out the receivership of the Carver’s entities and Axis North”. Further, a declaration that the Ultimate loan and security documents “are invalid and unenforceable” and a declaration that the appointment of the Receiver “is invalid”. No application was then made to join the Receiver as a party to proceeding QUD 93 of 2022, and he has not by any subsequent order been joined as a party. Just how it was then thought that relief may be granted to the effect that his appointment was invalid, and that he be restrained from acting, without him being joined as a party was not able to be explained by Mr Pomerenke in oral submissions: “sounds like a problem to me, your Honour”.

25    On 15 February 2023, the Clancy parties in proceeding QUD 93 of 2022 sought derivative leave to expand the scope of relief against the So parties (as set out in the pleadings referenced in the preceding paragraph) and for the joinder of Ultimate. In written submissions in support of that application, counsel for the Clancy parties referenced steps that had been taken by the Receiver to realise the mortgaged properties and made no mention of any claim to the effect that he had been invalidly appointed.

26    On 7 March 2023, Thynne & Macartney corresponded with Bartley Cohen about several matters in each proceeding. In part the letter asserted that in March and April 2022, Thomson Geer accepted the validity and enforceability of the Ultimate security documents and to the appointment of the Receiver which they described as: Acceptance of Receiver. On page four, under that heading the letter stated:

By the Acceptance of Receiver in March and April 2022, your clients advised in writing they did not challenge our client’s appointment. However, some 15 months later, your clients’ amended originating process and further amended statement of claim changes this position, although no specific relief sought against our client.

Our client has avoided taking an active role in your clients’ oppression/derivative action. However our client cannot do that if, by the time the trial arrives, it turns out that your clients end up seeking some liability or an order that may be prejudicial to him.

To be clear, our client at all times believed, and believes, he was and remains properly appointed as receiver and has dealt with property on that basis. That was and remains reasonable and correct.

The Acceptance of Receiver was appropriately given by your clients in March and April 2022, the parties have conducted themselves on that basis since and your clients should not now resile from that.

Our client does not interfere in the relief sought by your clients, or in any relief that is sought by the So respondents. He simply wants certainty about the Acceptance of Receiver and, if your clients have now reversed their stated position, our client needs an assurance that no liability will be sought against our client so that he does not need to incur costs of participating/seeking his own order in your clients’ oppression/derivative action.

We ask that you please undertake, in unequivocal terms in writing, by 3 pm on 9 March 2023 that your clients do not, and will not, claim any liability against our receiver client in the oppression/derivative action.

Failing that, our client will need to seek an order under section 419(3) of the Corporations Act 2001 (Cth) and we reserve his rights generally, including as to costs.

27    Bartley Cohen responded on 9 March 2023. In many respects the response is unsatisfactorily evasive. It includes this:

Thirdly, the undertaking that your client demands will not be given. Our clients seek orders setting aside the Ultimate loan agreement and securities in the IJ Financial loan agreement and securities in the hands of UIP. There is not to be any opposition to them seeking that relief by the So respondents or UIP. Your reference to s 88 of the Property Law Act is a little curious in that context.

If your client wishes to apply for orders under s 419 of the Corporations Act our clients will, of course, not oppose him bringing such an application as and when he might be advised to do so.

28    The meaning of the third sentence in the first paragraph is obscure. Section 88 of the Property Law Act 1974 (Qld) is the familiar provision prescribing the application of sale proceeds in a mortgagee sale. Thynne & Macartney referenced it as leading to the “irresistible proposition” that secured and unsecured creditors “must be paid in the natural order of their priority”. Bartley Cohen’s curiosity has nothing to do with the validity of the Receiver’s appointment. Nonetheless, I need not resolve its meaning.

29    On 10 March 2023, there was a case management hearing before Derrington J in each proceeding. Nothing was put to his Honour by counsel for the Clancy parties to alert the Court that the validity of the appointment of the Receiver was in issue in this proceeding.

30    The Receiver continued to perform his duties as the receiver and manager of the Group companies. In particular, he sold land and accounted for the proceeds to the secured creditors. No application was made by the Clancy parties or the Golden Eagle parties for an injunction to restrain him from acting. On 4 October 2024, the Receiver sought judicial advice in his capacity as receiver of GGPG as to whether he was acting reasonably and properly in continuing to retain Thynne & Macartney in this proceeding. The Golden Eagle parties appeared and opposed the relief, but it was given: GGPG Pty Ltd (Receiver and Manager appointed) v Golden Eagle Property Group Pty Ltd [2024] FCA 1188. No submission was made by the Golden Eagle parties to the effect that the Receiver could not retain Thynne & Macartney because of invalidity in his appointment.

31    Nothing more was said by the Golden Eagle parties about any invalidity in the appointment of the Receiver until delivery of their opening submissions on 23 November 2025. In those submissions they disclosed that they did not intend to call any witnesses at the trial and would rely entirely on the revised tender list in each proceeding in support of an order that the proceeding be dismissed and the cross-claim be allowed. In support, they gave as the first reason that, in the event that they succeed in setting aside the Ultimate loan and security documentation in proceeding QUD 93 of 2022, it follows that the appointment of the Receiver will have been invalid and that he “will have, and will have had, no power to bring this proceeding in the name of GGPG and to defend the cross-claim in the name of [Park Ridge]”. That submission drew the predictable response that it is not the pleaded case and explains the subsequent amendment application.

32    Benjamin Cohen was forcefully cross-examined by Mr Handran, with a focus on the history as I have summarised it. Broadly, his evidence was as follows. At no time before delivery of the opening submissions of the Golden Eagle parties was express notice given to GGPG that the validity of the appointment of the Receiver would be challenged in this proceeding. He repeatedly asserted that the challenge was implicit, from the time that the application for leave to amend proceeding QUD 93 of 2022 was made in February 2023. On his evidence, he did not consider that pleading the invalidity question was necessary in this proceeding because it was not being raised by way of a defence. On 28 August 2023, he proposed case management orders in this proceeding, including that it be heard and determined together with proceeding QUD 93 of 2022. At the time it was his intention to “deploy” the invalidity issue, but he chose not to expressly raise it at the time. He denied that this was a deliberate decision on his part; explaining that to his mind, the consequence of the amendments made in proceeding QUD 93 of 2022 which challenged the validity of the Ultimate loan document and securities, was sufficient notice of the taking of the point in this proceeding. In his evidence he regarded this as “obvious”, but not so obvious that he should mention it explicitly. He accepted that as of August 2023, he had significant experience in civil litigation in this Court and was aware of the rule to the effect that a party is obliged to plead matters which may take the opposing party by surprise. In November 2025, while complying with case management orders for the parties to produce a list of issues for determination, nowhere in the correspondence between the solicitors did he raise the issue of the validity of the appointment of the Receiver in this proceeding.

33    When questioned about whether the liquidator of GGPG may have an interest in the validity point, he gave the following evidence:

So you don’t understand that the liquidator’s interests might be affected by having a finding made that the person conducting proceedings on behalf of a company never had authority to do so at the end of the trial - - -?---My understanding - - -

- - - which was for a company in liquidation?---My understanding is that, if we succeed – was and is, if we succeed in 93 to obtain the relief, which sets aside the appointment of the receiver, the liquidator will be able to ratify – ratify the appointment and, in effect, adopt the litigation.

Notwithstanding you not having brought it to the attention of the liquidator beforehand?---I don’t think the capacity of the liquidator to do that depends on my having brought it to the liquidator’s attention. And it only arises in the event, as I’ve described, that we succeed in 93 in obtaining that relief, and we fail in 462 otherwise.

Well, wouldn’t it follow that it’s a hopeless amendment? Because what liquidator would not ratify the proceeding if they – if that was the only hurdle to judgment being entered in favour of a company?---I think I’ve already said that, if we succeed in 93 - - -

Yes?--- - - - and lose 462 - - -

Yes?--- - - - the liquidator would ratify it.

34    Despite that evidence, he did not accept that what is proposed amounts to “a hopeless amendment”.

35    I refuse leave to make the amendments to paragraphs 1C and 41A for several reasons.

36    First, trial by ambush is a relic of the past. The starting point is ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) (FCA Act). The overarching purpose requires the Golden Eagle parties to conduct this proceeding consistently with the statutory imperative of facilitating the just resolution of the dispute as quickly, inexpensively and efficiently as possible. In more granular detail, they were required, once they formed the view that a contention would be advanced in this proceeding impugning the authority of the Receiver to retain solicitors and to prosecute the claims of GGPG, to plead that point as a minimum obligation to achieve the just, fair and efficient determination of this proceeding. Correspondingly, Bartley Cohen solicitors were obliged to take account of and assist the Golden Eagle parties to comply with their statutory duty. As Allsop J observed in White v Overland [2001] FCA 1333 at [4]:

However, by way of general principle I would simply like to make perfectly plain my view that in the efficient and proper conduct of civil litigation, even civil litigation hard fought between parties, it should always be recognised that in the propounding of issues for trial the parties should take steps to ensure that all relevant parties to the dispute are cognisant of what the issues are. Any practice of quietly leaving footprints in correspondence or directions hearings to be uncovered some time later in an attempt to reveal that a matter was always in issue should be discouraged firmly. Even if something has been said, where it is evident, or indeed suspected, that the other side is proceeding on the basis of a misconception or has not appreciated something, as a general rule, efficiency, common sense and an appreciation of the costs and resources (both public and private) likely to be wasted by confusion in litigation will mandate that a party through his or her representative ensure that the other is not proceeding on a misconception or that the other does appreciate something that has been said. Litigation is not a game. It is a costly and stressful, though necessary, evil.

37    Those salutary observations were made well before commencement of Part VB of the FCA Act. They now have statutory force as imperatives, with the consequences provided for at s 37P(4) and (5). Burying the intention to impugn the standing of the Receiver in the multiple paragraphs of the relief sought in proceeding QUD 93 of 2022 departed from the basal requirements of procedural fairness in the conduct of this proceeding contrary to the obligations of the Golden Eagle parties. More so, when the Receiver is not a party to proceeding QUD 93 of 2022 with the result that the purported relief framed as affecting his interests could not be granted absent his joinder.

38    In Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; (2018) 261 FCR 347 at [50] the Full Court (Tracey, Reeves and Bromwich JJ) well expressed the problem with the conduct of the Golden Eagle parties in a case where counsel’s submissions depart from the pleaded case. The Court deprecated the argument that a failure to object amounts to acquiescence:

If that were the test, this departure from the basic requirements of procedural fairness would not occur by the deliberate choice of the party entitled to fair notice but rather at the self-serving behest of his or her opponent. If such an approach were permitted, the requirement to give fair notice would be made redundant, trial by ambush would become a legitimate tactic, and the issues in dispute at trial would become a movable feast. As well, the ability of a trial judge to manage the trial to ensure it fairly addressed the issues in dispute would be significantly eroded, if not entirely destroyed. So, too, would be the capacity of the trial judge to identify the issues he or she needed to decide.

39    In this case the standing contention was not explicitly raised until delivery of the Golden Eagle parties written opening submissions, where the end point of the expected outcome in proceeding QUD 93 of 2022 was put as:

If the Group companies succeed in setting aside the loan agreement, securities and mortgages in QUD 93/2022, the receiver’s appointment will have been invalid. And the receiver will have, and will have had, no power to bring this proceeding in the name of GGPG and to defend the cross-claim in the name of [Park Ridge].

40    With respect to that submission and the evidence of Benjamin Cohen (that the point was implicitly raised in the relief sought in proceeding QUD 93 of 2002), each reflects a misconception of the statutory obligation of the Golden Eagle parties in the conduct of this litigation. There was in the circumstances a fundamental failure to comply with the overarching purpose of civil practice and procedure in this Court. Of itself, that is a basis to refuse the belated application to amend. It is not, however, the only reason.

41    Secondly, Benjamin Cohen’s evidence and the submissions of Mr Pomerenke were each to the effect that the standing point does not arise by way of a defence, and it follows that there was no obligation to plead it to avoid surprise. I cannot accept that is so. The distinction is illusory when viewed through the lens of the overarching obligations of the Golden Eagle parties. Further, r 16.08 of the Federal Court Rules 2011 (Cth) expresses the imperative that in a pleading subsequent to a statement of claim a party must plead a matter of fact or a point of law that if not expressly pleaded might take another party by surprise, or a party alleges that another party’s claim is not maintainable. As long ago as 1877 (shortly after commencement of the Supreme Court of Judicature Act 1873, on 1 November 1875), the Court of Appeal held a general denial that an agreement for lease that had been entered into could not be deployed to mask a contention that the contracting agent had no authority on behalf of the principal: Byrd v Nunn (1877) 7 Ch D 284.

42    This is not simply a case where the Golden Eagle parties challenge the retainer of Thynne & Macartney to act as solicitors for GGPG, where it has been observed that a challenge of that character is not a defence; rather is a matter that should be raised by separate motion: Doulaveras v Daher [2009] NSWCA 58; (2009) 253 ALR 627. Their point is that the Receiver has no authority to bring and prosecute the proceeding.

43    Thirdly, the failure to plead the standing issue in this proceeding is compounded by how the Golden Eagle parties have conducted it. On 31 March 2022, Thynne & Macartney were informed in writing that the relief sought in proceeding QUD 93 of 2022 did not affect and would not impede the conduct of the Receiver. That was taken further on 1 April 2022, by the unambiguous representation that no contention would be advanced that the Receiver’s appointment was “somehow invalid”. Thynne & Macartney were not disabused of that position at any time between April 2022 and 10 February 2023, despite the steps that were taken in that period in which I have summarised above. On 10 February 2023, Thynne & Macartney were copied into correspondence which attached an Amended Originating Process and Statement of Claim in proceeding QUD 93 of 2022. Buried within that documentation one sees the contention that relief was sought to the effect that the Ultimate loan and security documents were invalid and unenforceable, with the consequence that the Receiver’s appointment was invalid. This was noticed by Thynne & Macartney in correspondence of 7 March 2023, but regrettably the response of Bartley Cohen of 9 March 2023 failed to satisfactorily engage with the issue. Objectively what should have occurred at that time was either an application to join the Receiver as a party to proceeding QUD 93 of 2022 (so that the relief sought as affecting his interests would be capable of being granted) or an application should have been made to amend the defence in this proceeding to plead the asserted invalidity and consequent want of authority. That failure by Bartley Cohen was then compounded by the Golden Eagle parties when they remained silent as to the standing issue when opposing the Receiver’s application for judicial relief in October 2024 and continued by their silence until delivery of their opening submissions.

44    Fourthly, if it be the case that the Clancy parties succeed in their invalidity and unenforceability contentions concerning the Ultimate loan documents and securities in proceeding QUD 93 of 2022, it is inconceivable that the liquidator of GGPG would not act to ratify the authority of the Receiver to bring and prosecute the proceeding. A proceeding brought absent authority is not a nullity and the pursuer’s authority may be ratified: Danish Mercantile Co Ltd v Beaumont [1951] 1 Ch 680 at 687-688; Ox Operations Pty Ltd v Land Mark Property Developments (Vic) Pty Ltd (in liq) [2007] FCA 1221; Mainland Property Holdings Pty Ltd v Naplend Pty Ltd [2022] FCA 1305 at [32]. As much was accepted by the Golden Eagle parties in their written submissions of 1 December 2025 at [4].

45    In response to the “pointless amendment” submission of Mr Handran, Mr Pomerenke submitted that if the appointment of the Receiver is invalid, it is not open to him to sell the property for the benefit of the secured creditor and the standing point thus matters because of the interests of the unsecured creditors who will benefit from the property in that event. The difficulty with that submission is that it conflates whether the property is an asset of GGPG with (as between the secured and unsecured creditors) who is entitled to share in the proceeds of realisation. Additionally, Mr Pomerenke submitted that there is a risk that if the standing question is not permitted to be agitated in this proceeding, then if the Receiver succeeds the property may be sold and the proceeds dissipated to the secured creditor before the invalidity question is resolved in proceeding QUD 93 of 2022.

46    The short answer to that submission is that the Receiver gave very specific undertakings to the Supreme Court when the property was transferred into the ownership of Park Ridge in consequence of the orders made on 8 April 2022. The Receiver remains bound by his undertakings, despite transfer of the proceeding to this Court: Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 11(3). Accordingly, the Receiver remains bound not to transfer, encumber or otherwise deal with the property until the trial of this proceeding, any earlier order or with the written agreement of the parties. If the Receiver succeeds in this proceeding and proceeding QUD 93 of 2022 remains pending, a course open to the Clancy parties in proceeding QUD 93 of 2022 (if the Receiver does not give a further undertaking) is to apply for interlocutory restraining orders. Moreover, acting prudently it may be that the Receiver would not take steps to dispose of the property and account to the secured creditor whilst the contentions about the validity of his appointment remain unresolved in proceeding QUD 93 of 2022. Of course, that may depend on the terms of any indemnity that he has received from his appointor and/or his assessment of the worth of the indemnity.

47    Fifthly, despite refusing to give the undertaking that was requested on 7 March 2023, and in response asserting that the Clancy parties would continue to press the invalidity question in proceeding QUD 93 at 2022, no step was then taken in a timely way thereafter to join the Receiver to that proceeding so that he would be bound by the relief sought. No satisfactory explanation has been forthcoming from the Golden Eagle parties (who are clearly aligned with the Clancy parties) as to why that was not done.

48    Sixthly, and more generally, it follows from these findings that the Golden Eagle parties have failed to provide a satisfactory explanation for their substantial delay and their conduct has caused substantial waste of time and costs: AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [102]-[103], [111]-[114].

49    Accordingly, the first order I will make is that I grant leave to the Golden Eagle parties to amend their defence in the terms set out in the draft Amended Defence to the Amended Statement of Claim attached to the interlocutory application dated 25 November 2025, save for the amendments to paragraph 1C and the insertion of paragraph 41A. Consequential timetabling orders will also be made.

50    I deal next with the severance application. The Golden Eagle parties resist separation of this proceeding from QUD 93 of 2022 for three reasons: (1) whether or not the standing amendments are permitted, the question of the authority of the Receiver depends on the determination of the validity of the loan and security documents in proceeding QUD 93 of 2022 and therefore the proceedings are related; (2) the Receiver may be in difficulty in adducing into evidence the “many hundreds of documents” exhibited to the affidavits in proceeding QUD 93 of 2022 if the proceedings are not heard together; and (3) separation would be productive of delay and unfairness where the parties have prepared their evidence on the basis that there will be a concurrent trial.

51    None of those submissions are persuasive. Commencing with the contended delay and unfairness, the position that the Golden Eagle parties now find themselves in is caused by the decision of Marc Clancy not to give evidence in either proceeding and by their failure to plead the standing point in this proceeding from when the invalidity question was first raised in proceeding QUD 93 of 2022. None of that has anything to do with conduct attributable to GGPG or the Receiver.

52    Having failed to engage the discretion to permit the standing question to be agitated in this proceeding, the asserted relationship with proceeding QUD 93 of 2022 has evaporated. And, as I have explained, what is in issue in this proceeding is whether the property in dispute is an asset of GGPG or Park Ridge. Resolution of that issue does not turn on any finding that the Ultimate loan and security documents are invalid and should be set aside. The finding that the Clancy parties seek in QUD 93 of 2022 is not presently at risk of being rendered nugatory because of the undertakings given by the Receiver. The cross-claim is not affected by separation as it turns on a finding that it was open to Golden Eagle to contract for its benefit when it entered into the option.

53    The adducing of evidence in this proceeding by the Receiver is a matter for him to determine. If there is no sensible co-operation concerning the admissibility of an agreed bundle of core documents, it will be up to the Receiver to take such steps as may be necessary to formally prove the documents. There is plenty of time available to take the necessary steps.

54    Mr Handran submits (and Mr Pomerenke did not dispute) that this proceeding is now able to be resolved in two days. There is time available in the period that I had allowed in February 2026 for the resumption of the trial. There is no good reason to hold up this proceeding any longer, and in that regard a matter that is of some weight is an attachment to the affidavit of Joseph Basson of 9 December 2025. It is an invoice from the Registry of the Court addressed to Thynne & Macartney for the setting down and daily hearing fees, apportioned as between this matter and proceeding QUD 93 of 2022, and which is calculated on the original estimated hearing time of 30 days in the amount of $198,327.50. Of course, that calculation will require revision given the new estimate of two weeks for proceeding QUD 93 of 2022. Nonetheless, the Receiver should not in the circumstances as they have occurred be burdened with a new invoice calculated by reference to an estimate of two weeks when this proceeding only requires two days.

55    For these reasons, I will set aside the orders made on 5 September 2023 and 17 July 2025, requiring this proceeding to be heard and determined with proceeding QUD 93 of 2022. I will further order that this matter be listed for trial to commence on 9 February 2026 with an estimate of two days. Consequential orders will also be made to vacate the outstanding timetabling orders (which proceed on the basis of a concurrent trial) and for new case management orders in this matter.

56    That leaves the question of the costs of each application. At this late stage of the year it is neither practical nor possible to receive and resolve any competing submissions. I will reserve the costs of the applications. It may be that the parties can reach agreement and if so, they may provide a consent memorandum to my chambers.

Associate:

Dated:    18 December 2025