FEDERAL COURT OF AUSTRALIA

Deputy Commissioner of Taxation, in the matter of Shafston Avenue Construction Pty Ltd (In Liq) v Shafston Avenue Construction Pty Ltd [2025] FCA 1673

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to section 90-15(1) of the Insolvency Practice Schedule (IPS) at Schedule 2 to the Corporations Act 2001 (Cth) (Corporations Act), that Anthony Norman Connelly and Mark Alfred Holland be appointed as additional liquidators of the First to Fifth Defendants.

2.    Pursuant to section 90-15(1) of the IPS that the additional liquidators appointed under paragraph 1 above (Special Purpose Liquidators) be empowered to carry out the functions limited to those specified in Annexure A to these orders (Annexure A).

3.    The Special Purpose Liquidators are entitled to exercise, solely for the purposes of their functions referred to in paragraph 2 above, all the powers conferred on a liquidator by section 477 and Part 5.9 of the Corporations Act.

4.    The Special Purpose Liquidators shall, in accordance with the requirements of the Corporations Act, report to creditors of the First to Fifth Defendants initially on the terms of their appointment and subsequently during the course of their appointment.

5.    The Sixth Defendant (as liquidators of the First to Fifth Defendants) and the Special Purpose Liquidators shall each use their reasonable endeavours to provide assistance to one another including by:

(a)    in respect of the Sixth Defendant, providing the Special Purpose Liquidators at their request with documents or information previously prepared or obtained by them in investigating the affairs of the First to Fifth Defendants (save for where the Sixth Defendant maintain a claim of legal professional privilege); and

(b)    in respect of the Special Purpose Liquidators, providing the Sixth Defendant at their request with documents or information prepared or obtained by them in carrying out the functions specified in Annexure A (save for where the Plaintiff maintains a claim of legal professional privilege).

6.    Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) (FCA Act), on the ground in s 37AG(1)(a), that the affidavits:

(a)    of Gary Busby headed “Confidential Affidavit” and affirmed on 12 September 2025 and filed on 24 September 2025 (comprising 51 numbered pages) (the Busby Affidavit);

(b)    of Gary Busby headed “Confidential Affidavit” and affirmed and filed on 4 December 2025; and

(c)    of Gary Busby headed “Confidential Affidavit” and affirmed and filed on 16 December 2025,

be kept confidential and not be provided or disclosed to any person or entity except to the Plaintiff’s legal representatives, the Court and Court staff, for a period of five years from the date of this order, in accordance with s 37AJ of the FCA Act.

7.    Pursuant to s 37AF(1) of the FCA Act, on the ground in s 37AG(1)(a), the affidavit, “Confidential Affidavit of Duncan Clubb”, affirmed and filed on 26 November 2025, is not to be published or otherwise disclosed to any person or entity except to the parties to this proceeding, their legal representatives, the Court and Court staff, for a period of five years from the date of this order, in accordance with s 37AJ of the FCA Act.

8.    Any costs or expenses incurred by, or approved remuneration payable to, the Special Purpose Liquidators are not to be paid from any property of the First to Fifth Defendants except that which the Special Purpose Liquidators recover as a consequence of the actions they have specifically been appointed to undertake pursuant to Annexure A of these orders.

9.    The parties (including the Special Purpose Liquidators) have liberty to apply on three days’ notice.

10.    There be no order as to costs.

11.    Pursuant to section 477(2B) of the Corporations Act, the Court approves the Special Purpose Liquidators to enter into the Funding and Indemnity Agreement (in substantially the same form as the document exhibited to the Busby Affidavit at exhibit “GB2”, save that clause 7(a)(iv) is to be deleted) on behalf of the First to Fifth Defendants.

THE COURT DIRECTS THAT:

12.    In respect of any:

(a)    application for examinations under sections 596A and 596B of the Corporations Act as are necessary or desirable for the purposes of the investigations referred to in Annexure A; and

(b)    legal proceedings prosecuted or commenced as a result of the investigations and examinations referred to in Annexure A,

the parties have leave to be represented by two solicitors on the record being the solicitors for the Sixth Defendant and for the Special Purpose Liquidators.

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

ANNEXURE A

Definitions

In this Annexure:

(a)    Aust F means Aust Equity F Pty Ltd ACN 090 494 009;

(b)    Aust Projects means Aust-Equity Projects Pty Limited ACN 165 004 062;

(c)    Aust F Facility Agreements means any agreement under which Aust F advanced moneys to the First to Fifth defendants, including but not limited to each of the facility agreements dated 8 September 2022 between Aust F and, amongst others, the:

(i)    First Defendant, a copy of which is at page 585 of exhibit “GB-1” to Gary Busby’s affidavit affirmed 12 September 2025 (Exhibit);

(ii)    Second Defendant, a copy of which is at page 631 of the Exhibit;

(iii)    Third Defendant, a copy of which is at page 677 of the Exhibit;

(iv)    Fourth Defendant, a copy of which is at page 723 of the Exhibit;

(v)    Fifth Defendant, a copy of which is at page 769 of the Exhibit, (each an Aust F Facility Agreement),

(d)    Construction Facilities means any agreement or deed under which the Corporate Trustees advanced funds to the Construction Companies, including but not limited to:

(i)    the undated loan deed between the First Defendant and Shafston Avenue Pty Ltd ACN 168 983 819 as trustee of the Shafston Avenue Unit Trust, a copy of which is at page 536 of the Exhibit;

(ii)    the undated facility agreement between the Second Defendant Shafston Avenue Pty Ltd ACN 168 983 819 as trustee of the Shafston Avenue Unit Trust, a copy of which is at page 558 of the Exhibit,

(each, a Construction Facility),

(e)    Corporate Trustee GSAs means each of:

(i)    the undated general security deed between the First Defendant and Shafston Avenue Corporate Trustee, a copy of which is at page 959 of the Exhibit (Corporate Trustee GSA 1);

(ii)    the undated general security deed between the Second Defendant and Shafston Avenue Corporate Trustee, a copy of which is at page 989 of the Exhibit (Corporate Trustee GSA 2);

(iii)    the general security agreement dated 20 March 2023 between the Second Defendant and Shafston Avenue Corporate Trustee, a copy of which is at page 1019 of the Exhibit (Corporate Trustee GSA 3);

(iv)    the general security agreement dated 20 March 2023 between the Third Defendant and Lincoln Street Corporate Trustee, a copy of which is at page 1049 of the Exhibit (Corporate Trustee GSA 4);

(v)    the general security agreement dated 20 March 2023 between the Fourth Defendant and 28 Baxter Road Corporate Trustee, a copy of which is at page 1080 of the Exhibit (Corporate Trustee GSA 5); and

(vi)    the general security agreement dated 20 March 2023 between the Fifth Defendant and 80 Settlement Road Corporate Trustee (Corporate Trustee GSA 6),

(each, a Corporate Trustee GSA),

(f)    Corporate Trustees means each of:

(i)    Shafston Avenue Corporate Trustee;

(ii)    Lincoln Street Corporate Trustee;

(iii)    28 Baxter Street Corporate Trustee; and

(iv)    80 Settlement Road Corporate Trustee,

(each, a Corporate Trustee),

(g)    December Tranche Invoices means the invoices totalling $60,856,279.63 issued by the First to Fifth Defendants to their respective Corporate Trustees on 31 December 2022, including;

(i)    the invoice issued by the First Defendant to Shafston Avenue Corporate Trustee for the amount of $827,800.27, a copy of which is at page 933 of the Exhibit;

(ii)    the invoice issued by the Second Defendant to Shafston Avenue Corporate Trustee for the amount of $36,256,572.13, a copy of which is at page 934 of the Exhibit;

(iii)    the invoice issued by the Third Defendant to Lincoln Street Corporate Trustee for the amount of $14,229,540.83, a copy of which is at page 930 of the Exhibit;

(iv)    the invoice issued by the Fourth Defendant to 28 Baxter Street Corporate Trustee for the amount of $555,498.19, a copy of which is at page 931 of the Exhibit; and

(v)    the invoice issued by the Fifth Defendant to 80 Settlement Road Street Corporate Trustee for the amount of $8,986,868.21, a copy of which is at page 932 of the Exhibit,

(h)    Deed of Acknowledgement and Forbearance means the deed of acknowledgement and forbearance dated 9 September 2022 between Aust Projects, each of the First to Fifth Defendants, each of the Corporate Trustees, Ian John Edwards, and Kingsmill Street Pty Ltd, a copy of which is at page 421 of the Exhibit;

(i)    Deed of Amendment and Restatement of Deed of Acknowledgement and Forbearance means the deed of amendment and restatement of deed of acknowledgement and forbearance dated 20 March 2023 between Aust Projects, each of the First to Fifth Defendants, each of the Corporate Trustees, Ian John Edwards, and Kingsmill Street Pty Ltd, a copy of which is at page 478 of the Exhibit;

(j)    Deeds of Forbearance means each of:

(i)    Deed of Acknowledgement and Forbearance;

(ii)    Forbearance Deed;

(iii)    Deed of Amendment and Restatement of Deed of Acknowledgement and Forbearance; and

(iv)    Further Set-Off and Forbearance Deed,

(k)    Development Management Agreements means any agreement under which the Corporate Trustees engaged the Construction Companies to develop land under the terms of that agreement, including but not limited to the Construction Companies’ provision of construction management services;

(l)    Forbearance Deed means the forbearance deed dated 9 September 2022 between the each of First to Fifth Defendants and each of the Corporate Trustees, a copy of which is at page 456 of the Exhibit;

(m)    Further Set-Off and Forbearance Deed the further set-off and forbearance deed dated 20 March 2023 between each of the First to Fifth Defendants, each of the Corporate Trustees, Aust F and Ian John Edwards, a copy of which is at page 517 of the Exhibit;

(n)    Kingsmill Street Pty Ltd means Kingsmill Street Pty Ltd ACN 168 009 514 as trustee for the Kingsmill Street Unit Trust;

(o)    Lincoln Street Corporate Trustee means Lincoln Street Pty Ltd ACN 603 876 660 as trustee of the Lincoln Street Unit Trust;

(p)    September Tranche Invoices means the invoices totalling $71,188,946 issued by the First to Fifth Defendants to their respective Corporate Trustees on 15 September 2022, including;

(i)    the invoice issued by the First Defendant to Shafston Avenue Corporate Trustee for the amount of $11,097,104.22, a copy of which is at page 928 of the Exhibit;

(ii)    the invoice issued by the Second Defendant to Shafston Avenue Corporate Trustee for the amount of $40,299,294.98, a copy of which is at page 929 of the Exhibit;

(iii)    the invoice issued by the Third Defendant to Lincoln Street Corporate Trustee for the amount of $7,917,265.20, a copy of which is at page 930 of the Exhibit;

(iv)    the invoice issued by the Fourth Defendant to 28 Baxter Street Corporate Trustee for the amount of $2,883,242.93, a copy of which is at page 931 of the Exhibit; and

(v)    the invoice issued by the Fifth Defendant to 80 Settlement Road Street Corporate Trustee for the amount of $2,883,242.93, a copy of which is at page 932 of the Exhibit,

(q)    Shafston Avenue Corporate Trustee means Shafston Avenue Pty Ltd ACN 168 983 819 as trustee of the Shafston Avenue Unit Trust;

(r)    Tranche Invoices means the September Tranche Invoices and the December Tranche Invoices;

(s)    28 Baxter Street Corporate Trustee means 28 Baxter Street Pty Ltd ACN 610 907 983 as trustee of the Baxter Street Unit Trust; and

(t)    80 Settlement Road Corporate Trustee means 80 Settlement Road Pty Ltd ACN 610 614 563 as trustee of the Settlement Road Unit Trust.

Functions of the Special Purpose Liquidators

1.    Conduct investigations into the affairs and activities of the First to Fifth Defendants limited to the following:

(a)    the First to Fifth Defendants’ entry into the Development Management Agreements and Construction Facilities;

(b)    the claiming of input tax credits by the First to Fifth Defendant since their incorporation, especially between the period 2017 to 2020;

(c)    the delay or failure by the First to Fifth Defendants to adequately invoice the respective Corporate Trustee for the construction costs incurred during the life of the development which consequently delayed any GST liability crystallising;

(d)    the extent to which that delay or failure referred to in (c) above affected the First to Fifth Defendants’ ability to recoup construction costs and the impact it had upon the First to Fifth Defendants’ ability to repay amounts borrowed under the Construction Facilities;

(e)    the accrual of significant interest on each Construction Facility due to the First to Fifth Defendants’ inability to service their Construction Facilities;

(f)    the failure to apply a margin on the construction costs;

(g)    whether the First to Fifth Defendants charged commercial rates (or not) for their services to the Corporate Trustees within the Tranche Invoices;

(h)    whether the invoices referred to in 1(g) undervalued the work completed by the First to Fifth Defendants and whether the corresponding GST liability ought to be increased to reflect the value of the services provided by the First to Fifth Defendants to the Corporate Trustees;

(i)    the First to Fifth Defendants' entry into the Deeds of Forbearance, particularly the entry of the Deed of Amendment and Restatement of Deed of Acknowledgement and Forbearance, and Further Set-Off and Forbearance Deed on 20 March 2023, one day prior to the First to Fifth Defendants’ entry into administration;

(j)    the drawdowns under the Aust F Facility Agreements by the First to Fifth Defendants and the extent to which those funds may be clawed back as unfair preference payments;

(k)    the extent to which there are any unfair preference claims which may have arisen under the Forbearance Deed and the Further Set-Off and Forbearance Deed, which includes:

(i)    under clause 2.5 of the Forbearance Deed where the September Tranche Invoices totalling $71,188,946 were set-off against the total outstanding loan balance owed by the First to Fifth Defendants to the Corporate Trustees and whether the set-off is a related party transaction within the meaning of section 588FE(4) of the Corporations Act such that the transaction can be pursued because it falls within 4 year relation back period; and

(ii)    under clause 4 of the Further Set-Off and Forbearance Deed where the December Tranche Invoices totalling $60,856,279.63 were not set off against outstanding loan balances owed by the First to Fifth Defendants to the Corporate Trustees but were acknowledged with some uncertainty as expressed in clause 4.2;

(l)    the validity and effect of the security interests arising from the execution of the Corporate Trustee GSAs and their registration on the PPSR, particularly:

(i)    whether the Corporate Trustee GSA 2 is voidable pursuant to s.588FL(2)(b) of the Corporations Act, by reason of the security being registered out of time;

(ii)    whether the granting of securities under Corporate Trustee GSAs 3 to 6 (inclusive) may constitute unfair preferences given the security agreements purport to secure a previously unsecured debt; and

(iii)    whether the limit of $7 plus interests and costs stated in clause 13(a) of each of Corporate Trustee GSAs 3 to 6 (inclusive) is valid;

(m)    whether there are any uncommercial transactions pursuant to section 588FB of the Corporations Act, which include:

(i)    entry into any Development Management Agreements with each Corporate Trustee under which the First to Fifth Defendants were to provide construction management services;

(ii)    entry into the Construction Facilities with each Corporate Trustee to enable the First to Fifth Defendants to carry out the development;

(iii)    entry into the Aust F Facility Agreements with Aust F on 8 September 2022; and

(iv)    entry into the Deeds of Forbearance;

(n)    whether the First to Fifth Defendants entered into any unreasonable director related transactions or unfair loans.

2.    Conduct investigations into the solvency of the First to Fifth Defendants prior to each company being placed into liquidation.

3.    Conduct investigations into whether the First to Fifth Defendants entered into any voidable transactions pursuant to Divisions 2, 3 and 4 of Part 5.7B of the Corporations Act, at common law, or in equity.

4.    In respect of the investigations mentioned in paragraph 3, any unfair preference claims that are related to the matters identified in paragraph 1, with the exception of the following potential preference claims identified by the Sixth Defendant against:

(a)    Vincent Young trading as Vincent CCL Ply Limited ABN 80 116 002 110;

(b)    First Equity Partners ABN 13 857 737 379 ;

(c)    William Rhodes;

(d)    TJC#1 Pty Ltd t/as Balance Insolvency ABN 52 606 421 452;

(e)    Shia Pty Ltd ACN 101 272 628; and

(f)    any other claims subsequently identified as worth pursuing and with the consent of the Special Purpose Liquidators (which cannot be unreasonably withheld).

5.    Together with the Sixth Defendant:

(a)    conduct investigations in respect of any breaches of duty owed whether under the Corporations Act, at common law or in equity, by:

(i)    the directors or officers of the First to Fifth Defendants;

(ii)    de facto or shadow directors of the First to Fifth Defendants; and

(iii)    any other person;

(b)    conduct investigations into the potential rights of recovery as against the persons mentioned at paragraphs 5(a)(i) to 5(a)(iii) and/or third parties in respect of the matters identified at paragraphs 1 to 4 above;

(c)    prepare, make an application for and conduct with the assistance of instructing solicitors and counsel such examinations under sections 596A and 596B of the Corporations Act as are necessary or desirable for the purposes of the investigations referred to herein; and

(d)    give consideration to the claims available to the First to Fifth Defendants, or its liquidators, arising from the investigations and examinations referred to in this Annexure, and from examination of the books and records of the First to Fifth Defendants.

6.    Commence and prosecute any legal proceedings in the name of the First to Fifth Defendants, or as Special Purpose Liquidators of the First to Fifth Defendants, which are described in, or relate to the matters referred to in, paragraphs 1 to 4, except for the potential preference claims identified by the Sixth Defendant against the entities described in paragraphs 4 (a) to (f) (inclusive).

7.    In addition to the power granted by paragraph 6, with the consent of the Sixth Defendant (which cannot be unreasonably withheld) or the approval of the Court:

(a)    commence and prosecute any legal proceedings in the name of the First to Fifth Defendants, or as Special Purpose Liquidators of the First to Fifth Defendants, arising from the investigations and examinations referred to in paragraph 5, and from the examination of the books and records of the First to Fifth Defendants; and

(b)    take steps, including the commencement of legal proceedings, to ensure preservation and protection of assets of the First to Fifth Defendants, whether or not in the possession of the First to Fifth Defendants.

8.    Take possession of such books and records of the First to Fifth Defendants as the Special Purpose Liquidators deem necessary for the purpose of investigations and examinations referred to herein, save for any books and records which are already in the possession of the Sixth Defendant in which case the Sixth Defendant are to make those books and records available for inspection (or copying) to the Special Purpose Liquidators.

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

WHEATLEY J:

INTRODUCTION

1    On 24 September 2025, the Deputy Commissioner of Taxation filed an Originating Application for the appointment of a special purpose liquidator as additional liquidators to the First to Fifth Defendants, and certain other consequential orders, should that appointment occur.

2    The matter was first returned in the Corporations List where her Honour Justice Downes made certain orders, including timetabling orders for submissions and any material in opposition by the Sixth Defendant. The Sixth Defendant is Mr Clubb and Mr Marsden, as the liquidators of the First to Fifth Defendants.

3    On 4 December 2025, I had the matter listed for case management whereby it was ascertained that there was some urgency in relation to the Originating Application. As such, it was listed for final hearing on 17 December 2025.

4    In summary, the Deputy Commissioner of Taxation (DCT) seeks the following:

(1)    Mr Connelly and Mr Holland be appointed Special Purpose Liquidators to the First to Fifth Defendants, pursuant to s 90-15(1) of the Insolvency Practice Schedule (IPS) and Sch 2 of the Corporations Act 2001 (Cth) (Corporations Act), to undertake a list of functions contained in Annexure A to the Originating Application (Annexure A);

(2)    that leave be granted or orders made, pursuant to s 477(2B) of the Corporations Act for the Special Purpose Liquidators to enter into the deed of funding and indemnity on behalf of the First to Fifth Defendants; and

(3)    that pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) (FCA Act), certain confidentiality orders in relation to identified affidavits of Mr Busby and also in relation to an affidavit of Mr Clubb be made.

5    The DCT originally also sought an associated declaration, pursuant to s 90-15 of the IPS. However, as the hearing evolved, the DCT did not press that matter as it related to the funding deed. The DCT has served the Australian Securities and Investment Commission (ASIC) who has stated that it did not intend to intervene or appear at the application as it is a matter for the Court. Further, the creditors have been notified and provided with the Originating Application, draft Orders and Annexure A. Some of the creditors sought additional material which was provided. None of the creditors have appeared today or sought to be heard.

6    The Sixth Defendant, the liquidators, have appeared today and assisted the Court with submissions. The Sixth Defendant does not oppose the orders that are sought by the DCT.

7    For the following reasons, I am satisfied to make the orders broadly in the terms that are sought.

BACKGROUND

8    The First to Fifth Defendants (Construction Companies) were special purpose vehicles established to undertake and complete construction projects for the corporate trustees. Also relevant to the corporate group, but not a party to these proceedings are two additional companies which have been identified as Aust F and Aust Projects. The Construction Companies are:

(a)    Shafston Avenue Construction Pty Ltd (In Liquidation) ACN 169 409 705;

(b)    Shafston Avenue Construction 2 Pty Ltd (In Liquidation) ACN 622 201 183;

(c)    Lincoln Street Construction Pty Ltd (In Liquidation) ACN 603 876 651;

(d)    28 Baxter Street Construction Pty Ltd (In Liquidation) ACN 611 160 215; and

(e)    80 Settlement Road Construction Pty Ltd (In Liquidation).

9    The corporate trustees of the relevant trusts were as follows:

(1)    Shafston Avenue Pty Ltd ACN 168 983 819 as trustee of the Shafston Avenue Unit Trust (Shafston Avenue Corporate Trustee);

(2)    Lincoln Street Pty Ltd ACN 603 876 660 as trustee of the Lincoln Street Unit Trust (Lincoln Street Corporate Trustee);

(3)    28 Baxter Street Pty Ltd ACN 610 907 983 as trustee of the Baxter Street Unit Trust; and

(4)    80 Settlement Road Pty Ltd ACN 610 614 563 as trustee of the Settlement Road Unit Trust.

10    Mr Thornton was the 100% shareholder of the Construction Companies, and up until 18 May 2021 the sole director, after which Mr Rhodes became director of each of the Construction Companies. Mr Edwards was the 100% shareholder and director of Aust F and Aust Projects. Finally, Mr Thornton and Mr Edwards were each 50% shareholders in the corporate trustees and both were directors of the corporate trustees until 7 July 2021, after which a Mr Wallace was the sole director. Each of the corporate trustees purchased land and was responsible for its development and eventual sale. Although not all of the relevant agreements are in evidence, from the two agreements that are in evidence, it is apparent that the corporate trustees engaged its respective construction company to provide construction management services to develop the relevant land. I infer that the same arrangements were in place for those corporate trustees and Construction Companies for which the relevant agreements are not in evidence.

11    Further, and again although not all of the funding agreements are in evidence, two such agreements do appear to be representative of how the Construction Companies and the corporate trustees operated in terms of funding. The first is a loan deed between Shafston Avenue Corporate Trustee and Shafston Avenue Construction. The second is a facility agreement between Shafston Avenue Corporate Trustee and Shafston Avenue Construction 2. It is apparent, by reference to other agreements, that each of the corporate trustees who were the borrower under these loan facility arrangements were to be provided with financial accommodation by Aust Projects, pursuant to a funding agreement. There are also general security deeds as between the relevant construction company and the corporate trustees. The security deeds, apart from one as between Shafston Avenue Construction and Shafston Avenue Corporate Trustee, which was registered on 17 November 2017, were all registered on the PPSR on 17 March 2023, four days prior to the Construction Companies entering into voluntary administration.

12    Between 2015 and 2022, the Construction Companies claimed GST input tax credits totalling $12,422,565. However, the Construction Companies delayed in issuing invoices that attracted GST, which meant that the input tax credits were not reduced by a corresponding GST liability, which should have arisen if the invoices had of been issued at or around the same time of claiming the GST input tax credit. What are described as deeds of forbearance are also in evidence and dated 9 September 2022 and, relevantly, 20 March 2023.

13    Further, in relation to the relevant background, the Commissioner of Taxation engaged in the following correspondence, which recorded various matters as set out below:

(1)    On or about 26 October 2020, with Shafston Avenue Construction 2, details were confirmed of a payment arrangement in relation to GST liabilities for $3,198,584.03.

(2)    From at least 15 December 2020, it appears that Shafston Avenue Construction 2 entered into a payment arrangement for GST liabilities for an amount of $2,797,334.03.

(3)    On or about 21 June 2022, a statutory demand in the amount of $957,137.24 was served upon 80 Settlement Road Construction in relation to GST liabilities and defaults with payment arrangements.

(4)    On or about 11 July 2022, 80 Settlement Road Construction entered into a payment plan, which appears to be in response to that statutory demand. It was for an agreed amount of $1,039,557.28. It is recorded, though, that there was a further default and the default amount was $1,583,621.38.

(5)    On or about 19 October 2022, solicitors acting on behalf of Lincoln Street Construction stated that the company was able to secure finance or funding to make repayments of an amount of $67,146 over a 23-month period.

(6)    Again, on or about 19 October 2022, solicitors acting on behalf of Shafston Avenue Construction stated that the company was able to secure finance or funding to pay an amount of $21,615.08 over an 11-month period.

(7)    On or about 23 February 2023, a statutory demand was served on behalf of the DCT on Shafston Avenue Construction for $1,057,942.99.

(8)    On or about 27 February 2023, the DCT issued a director penalty notice regarding the outstanding GST liabilities of Shafston Avenue Construction to Mr Rhodes and;

(9)    On or about 6 March 2023, a director penalty notice regarding GST liabilities of Lincoln Street Constructions was issued to Mr Rhodes.

14    On or about 21 March 2023, Mr Rhodes, the then director, caused each of the Construction Companies to be placed into voluntary administration. Mr Clubb and Mr Marsden were appointed the voluntary administrators and recommended that the companies enter a deed of company arrangement (DOCA). The DCT opposed entry into the DOCA. The DOCA was entered and terminated in accordance with its terms due to the non-satisfaction of the condition precedent, prior to the hearing of the DCT’s application to set the DOCA aside. Therefore, on 12 March 2024, the Construction Companies entered into liquidation and Mr Clubb and Mr Marsden, the Sixth Defendant, became the liquidators of the Construction Companies.

15    As at 20 March 2023, the Construction Companies were and appeared to be indebted to the DCT for approximately $16 million. The DCT is the largest non-related creditor.

16    The debt of the DCT represents at least 83% of the value of all non-related creditors, as follows:

RELEVANT LEGAL PRINCIPLES

17    Section 90-15(1), provides as follows:

The Court may make such orders as it thinks fit in relation to the external administration of a company.

18    Section 90-15(4), provides a non-exhaustive list of the matters which the Court may take into account in exercising the discretion under s 90-15(1). Section 90-20 provides who may apply for an order under s 90-15. Those persons include a person with a financial interest in the external administration of the company. Section 90-15(3) provides examples of orders that may be made under s 90-15(1), which includes an order that another registered liquidator could be appointed as the external administrator of the company: s 90-15(3)(c). Given the terms of s 90-15(3)(c), and its reference to another registered liquidator, it is not necessary to remove the current liquidator.

19    Section 90-15 of the IPS confers a broad discretionary power on the Court, which must be exercised judicially in all of the relevant circumstances: see Sino Group International Limited v Toddler Kindy Gymbaroo Pty Ltd (in liq) (Final Orders) [2023] FCAFC 119 at [63] (Farrell, Cheeseman and Feutrill JJ); GDK Projects Pty Ltd, in the matter of Umberto Pty Ltd (in liq) v Umberto Pty Ltd (in liq) [2018] FCA 541, where her Honour, Farrell J, expressed the view at [33], that the power conferred under s 90-15(1) is unconstrained. Markovic J, in Deputy Commissioner of Taxation v Italian Prestige Jewellery Pty Ltd (2018) 129 ACSR 115; [2018] FCA 983 at [34] with reference to Gleeson J in Deputy Commissioner of Taxation, Re ACN 154 520 199 Pty Ltd (in liq) v ACN 154 520 199 Pty Ltd (in liq) [2017] FCA 444, outlined the following four matters that are appropriate to consider when regard is had to the appointment of a special purpose liquidator:

(1)    There are matters that require investigation by a liquidator with a view to possible recovery for creditors.

(2)    The current liquidators have insufficient funds and insufficient prospects of obtaining funding to pursue an investigation.

(3)    A creditor is prepared to fund investigations and recovery actions but only on the condition that another liquidator be appointed; and

(4)    Such an appointment would be beneficial to the winding up and the creditors as a whole.

20    These four considerations were also applied by Gleeson J in Melhelm Pty Ltd v Boka Beverages Pty Ltd (In liq) (2019) 138 ACSR 95; [2019] FCA 1184 at [57]. There is no requirement to establish a conflict of interest or some failure on the current liquidators as some prerequisite to the appointment of a special purpose liquidator: see Melhelm at [105] and Williams & Kersten Pty Ltd v Walton Construction (Qld) Pty Ltd (in liq) [2019] FCA 1201 at [19] and [29] (Reeves J).

21    Therefore, consideration will be given to these four matters on this application.

CONSIDERATION – SPECIAL PURPOSE LIQUIDATORS

(1)    Matters that require investigation

22    It is not necessary or even appropriate for the Court to make findings on the potential claims the subject of the proposed investigations in determining an application for the appointment of the Special Purpose Liquidators: see Prestige Jewellery at [37] and Melhelm at [59]. Any observations made in the course of these reasons are not to be taken as any such findings.

23    There is evidence before the Court of potential claims which would be the subject of the proposed further investigations by the Special Purpose Liquidators. Without being exhaustive, those claims are voidable transactions, in the nature of unfair preferences, to investigate the grants of security and insolvent trading.

24    In the third report to creditors, the liquidators acknowledged that they were still completing their investigations and identified some potential claims that could be pursued. At that time, the liquidators did not identify, in relation to unreasonable director-related transactions, any unfair loans, any uncommercial transactions or creditor-defeating dispositions or any transactions which warranted investigation. However, the liquidators did identify, in section 7 of the third report, certain matters which would require investigation, being unfair preferences and potentially insolvent trading.

25    After the third report, on 14 June 2024, solicitors for the DCT wrote to the liquidators, outlining his views in relation to potential matters which may warrant investigation. On 28 June 2024, solicitors for the liquidators responded and broadly agreed that there may be matters which require further investigation. The liquidators have also provided, by way of a confidential supplementary report, their views and identified and updated the position in relation to the investigations which should be undertaken. In broad terms, that report does reflect an agreement in relation to the matters which should be investigated.

26    There is also evidence before the Court that there may be issues in relation to the proper date of insolvency. It is not possible or appropriate to ascertain what that earlier date, if there is one, might be.

27    However, what these matters do support is a satisfaction in terms of this first consideration that there are matters that do require further investigation. As such, in these circumstances and for the reasons given, I am satisfied that there are matters that require investigation by a special purpose liquidator, with a view to possible recovery and benefit for the creditors of the Construction Companies as a whole.

(2)    The current liquidators have insufficient funds

28    The liquidators have, relatively recently, around September 2025, been successful in recovering funds by way of an unfair preference claim in an amount of $280,000. This was a recovery from the Commissioner of Taxation.

29    The DCT has disclosed by way of a confidential affidavit the proposed or estimated costs of the investigations and the liquidators’ stated position in the liquidation. It is apparent that although there has been the recovery of some funds, that there is insufficient funding to enable the liquidators to investigate all of the potential matters that are proposed to be investigated in terms of Annexure A to the Originating Application.

30    Further, the liquidators have not identified any additional or alternative source of funding to be able to carry out these proposed investigations. The DCT is not willing to fund the current liquidators.

31    In these circumstances, and for these reasons, I am satisfied that the current liquidators have insufficient funds and insufficient prospects of obtaining funding to pursue the proposed investigations.

(3)    Funding is available, but only on the condition that another liquidator is appointed

32    The DCT is willing to fund the proposed Special Purpose Liquidators. The DCT is a creditor of the Construction Companies. The DCT has been consistent in his position, having advised the liquidators on 29 August 2024 that he would be willing to fund the investigations broadly in the terms identified in Annexure A, but only on the condition that a special purpose liquidator is appointed to conduct those investigations. A more recent affidavit filed on behalf of the DCT confirms this position. This funding is intended in stages. The first stage is to undertake investigations and information gathering and to advise on proposed proceedings, with a second stage being the possible conduct of public examinations. Additional and subsequent funding of further stages is also proposed for the investigations and potential recovery proceedings, depending on the results of the investigations, information and advice.

33    Importantly the funding is to be in full. In the circumstances and for these reasons, I am satisfied that a creditor, being the DCT, is prepared to fund investigations and recovery actions, but only on the condition that a special purpose liquidator, being another liquidator, be appointed.

(4)    Such an appointment would be beneficial to the winding up and the creditors as a whole

34    The DCT proposes to fund the entirety of the investigations and, depending upon the results of which, any subsequent proceedings on an at-cost basis. There is no uplift in terms of any recovery of those costs proposed by the DCT. The deed of funding with the DCT does not require the Special Purpose Liquidators to hand over control of the investigations to the DCT. It only requires the Special Purpose Liquidators to keep the DCT informed. The only aspect of control that the DCT is given is regarding the acceptance or rejection of any settlement offers, whereby the views of the DCT must be first obtained. However, if the DCT and the Special Purpose Liquidators disagree, the Special Purpose Liquidators can still accept or reject any settlement offer, contrary to those views, after obtaining an opinion from senior counsel which supports that position or by an order of the Court that the Special Purpose Liquidators would be justified in accepting or rejecting the settlement offer.

35    The Special Purpose Liquidators have consented to the appointment and are ready, willing and able to commence work immediately.

36    This is and will be necessary as there has been identified potential limitation periods in the not-too-distant future, which means that there is some urgency in relation to the investigations and information gathering proposed. The proposed investigations to be undertaken by the Special Purpose Liquidators are not matters which have, to any material extent, already been investigated. Therefore, in terms of there being a benefit to the creditors as a whole, and there being a minimum of duplication of work done and fees incurred, I am satisfied that that is the case.

37    Finally, and although already considered in terms of the second matter for consideration, but it is also relevant here, is that the liquidators will not be able to pursue these investigations and any potential recovery proceedings due to a lack of funding. Therefore, in all the circumstances, and for the reasons given, I am satisfied that the appointment of the proposed Special Purpose Liquidators would be beneficial to the winding up and the creditors as a whole.

38    Without this, the proposed investigations and information gathering may not be pursued, and thereby, any potential recovery will also be unable to be pursued. I have outlined earlier in these reasons the potential debts which may be the subject of any potential recoveries. Those potential recoveries would be of benefit to the creditors as a whole.

CONCLUSION – SPECIAL PURPOSE LIQUIDATORS

39    For the reasons given and in all of the circumstances of this case, I am satisfied that the appointment of the Special Purpose Liquidators is appropriate and I will make orders for the appointment of the Special Purpose Liquidators now. I propose to make those orders now because of an issue which has arisen in relation to s 477(2)(B) of the Corporations Act.

40    However, having said that, the orders as published will be reflected in one order of the court. As such, the court orders that:

(1)    Pursuant to section 90-15 (1) of the Insolvency Practice Schedule (IPS) at Schedule 2 to the Corporations Act 2001 (Cth) (Corporations Act), that Anthony Norman Connelly and Mark Alfred Holland be appointed as additional liquidators of the First to Fifth Defendants.

(2)    Pursuant to section 90-15(1) of the IPS that the additional liquidators appointed under paragraph 1 above (Special Purpose Liquidators) be empowered to carry out the functions limited to those specified in Annexure A to these orders (Annexure A).

(3)    The Special Purpose Liquidators are entitled to exercise, solely for the purposes of their functions referred to in paragraph 2 above, all of the powers conferred on a liquidator by section 477 and Part 5.9 of the Corporations Act.

(4)    The Special Purpose Liquidators shall, in accordance with the requirements of the Corporations Act, report to creditors of the First to Fifth Defendants initially on the terms of their appointment and subsequently during the course of their appointment.

(5)    The Sixth Defendant (as liquidators of the First to Fifth Defendants) and the Special Purpose Liquidators, shall each use their reasonable endeavours to provide assistance to one another including by:

(a)    in respect of the Sixth Defendant, providing the Special Purpose Liquidators at their request with documents or information previously prepared or obtained by them in investigating the affairs of the First to Fifth Defendants (save where the Sixth Defendant maintain a claim of legal professional privilege); and

(b)    in respect of the Special Purpose Liquidators, providing the Sixth Defendant at their request, with documents or information prepared or obtained by them in carrying out the functions specified in Annexure A (save for where the plaintiff maintains a claim for legal professional privilege).

FUNDING DEED – S 477(2B)

41    It is then to consider the second aspect of the DCT’s application, which requires consideration of s 477(2B) of the Corporations Act.

42    Section 477(2B) effectively provides that except with the approval of the Court, of the committee of inspection or of a resolution of the creditors, a liquidator of a company must not enter into an agreement on the company’s behalf if the terms of the agreement may end or obligations of a party to the agreement may, according to the terms of the agreement, be discharged by performance more than three months after the agreement was entered into. The proposed deed of funding and indemnity is engaged by the terms of that provision.

43    In exercising the power under s 477(2B), it is sufficient to outline the following principles from Brereton J from Re One.Tel Ltd (in liq) (2014) 99 ACSR 247; [2014] NSWSC 457 at [23] to [30], which I would summarise as follows:

(1)    Both of the provisions, s 477(2A) and s 477(2B) are concerned to ensure that the Court exercises some oversight over the liquidator’s actions.

(2)    The Court’s assessment must be made in light of the purpose for which the liquidator’s powers exist. One overriding purpose is to serve the interest of those concerned in the winding up, being the creditors.

(3)    The role of the Court is to grant or deny approval to the liquidators proposed, not to reconsider every issue considered by the liquidator nor to develop some alternative proposal.

(4)    Importantly, the Court’s approval is not an endorsement of the proposed agreement, but merely permission for the liquidator to exercise his or her own commercial judgment in the matter.

(5)    The Court pays regard to the commercial judgment of the liquidator. That is not to say that it rubber stamps whatever is put forward, but as is made clear, it is not attempting to second guess a liquidator in the exercise of his or her powers.

(6)    The Court does not exhaustively or closely consider the commercial merits or otherwise of the transaction.

(7)    If the liquidator expresses the opinion that it is an appropriate commercial compromise and there does not appear to be any such lack of good faith, error of law or principle or real or substantial ground for doubting the reasonableness of the liquidator's view, the Court will generally give its approval.

44    To those principles, I would also add those considered by Gordon J (then of this Court), in Stewart, in the matter of Newtronics Pty Ltd [2007] FCA 1375 at [26]:

26    There are a number of principles relevant to the exercise of the Court’s power under s 477(2B) which are worth restating:

(1)    the court does not simply “rubber stamp” whatever is put forward by a liquidator. As Giles J said in Re Spedley Securities Ltd (In liq) (1992) 10 ACLC 1,742 at 1,745 in relation to the powers of a liquidator to compromise claims:

“[T]he Court is necessarily confined in attempting to second guess the liquidator in the exercise of his powers, and generally will not interfere unless there can be seen to be some lack of good faith, some error in law or principle, or real and substantial grounds for doubting the prudence of the liquidator’s conduct. The same restraint must apply when the question is whether the liquidator should be authorised to enter into a particular transaction the benefits and burdens of which require assessment on a commercial basis. Of course, the compromise of claims will involve assessment on a legal basis, and a liquidator will be expected (as was made plain in Re Chase Corporation (Australia) Equities Ltd) to obtain advice and, as a prudent person would in the conduct of his own affairs, advice from practitioners appropriate to the nature and value of the claims. But in all but the simplest case, and demonstrably in the present case, commercial considerations play a significant part in whether a compromise will be for the benefit of creditors.”

(2)    a court will not approve an agreement if its terms are unclear: Re United Medical Protection (No 4) (2002) 20 ACLC 1,647;

(3)    the role of the Court is to grant or deny approval to the liquidator’s proposal. Its role is not to develop some alternative proposal which might seem preferable: Corporate Affairs Commission v ASC Timber Pty Ltd (1998) 16 ACLC 1,642;

(4)    in reviewing the liquidator’s proposal, the task of the Court is:

“[not] to reconsider all of the issues which have been weighed up by the liquidator in developing the proposal, and to substitute its determination for his in….a hearing de novo [but]… simply to review the liquidator's proposal, paying due regard to his or her commercial judgment and knowledge of all of the circumstances of the liquidation, satisfying itself there is no error of law or ground for suspecting bad faith or impropriety, and weighing up whether there is any good reason to intervene in terms of the "expeditious and beneficial administration" of the winding up.”

See ASC Timber at 1,650; see also Re Gate Gourmet Australia Pty Ltd (in liq) (2005) 23 ACLC 834 at [10] and Warne v GDK Financial Solutions; Peridon Village Nominees (2006) 24 ACLC 1,019 at [60]. The Court’s approval is not an endorsement of the proposed agreement but is merely a permission for the liquidator to exercise his or her own commercial judgment in the matter;

(5)    further, in judging whether or not a liquidator should be given permission to enter into a funding agreement (whether retrospective or not), it is important to ensure, inter alia, that the entity or person providing the funding is not given a benefit disproportionate to the risk undertaken in light of the funding that is promised or a “grossly excessive profit”: Anstella Nominees Pty Ltd v St George Motor Finance Ltd (2003) 21 ACLC 1,347 at [11] and Re ACN 076 673 875 Ltd (2002) 20 ACLC 1,551 at [28];

(6)    generally, the Court grants approval under s 477(2B) of the Act only where the transaction is the proper realisation of the assets of the company or otherwise assists in the winding up of the company: GDK Financial Solutions at [58] and the cases cited therein.

45    A further issue arises in relation to the entry of the proposed funding deed, as was identified by Jackson J, in Reidy as Trustee for the PR Mining Superannuation Fund v Contained Gold Pty Ltd (in liq) (2020) 143 ACSR 260; [2020] FCA 268 at [49] to [54]. There, Jackson J identified two questions, being whether or not a creditor had standing to make the application for approval under s 477(2B) and secondly, whether that application is premature because the special purpose liquidators had not yet, in the circumstances of the case before Jackson J, been appointed. His Honour referred to the decision in Re AT Air Group Pty Ltd (in liq) [2012] NSWSC 1508 at [22] and agreed with Black J’s observations in relation to the standing of a creditor to make such an application.

46    I also respectfully agree with the observations of both Black J and Jackson J in that there is no difficulty with the DCT, as a creditor, in the circumstances of this case, making the application. Jackson J, at [53], then refers to a decision of Gleeson JA in Newling v 77738930144 Pty Limited (in liq) (formerly known as Commercial Indemnity Pty Ltd) [2017] NSWSC 452 at [21]. What occurred in Newling was that an instanter application was made to overcome any potential difficulties of the Court not having power to consider the proposed terms of the deed. No such instanter application was made in these proceedings.

47    However, Markovic J, in Prestige Jewellery, has also considered this position from [43] to [49], but particularly at [48], stated the following:

48     The application before me for approval of entry into the Funding Deed was made by the Commissioner and not the Special Purpose Liquidators. Notwithstanding, I was satisfied that the Commissioner had standing and that I could entertain the application. The application for approval of entry into the Funding Deed was sought after I was satisfied that the orders approving the appointment of the Special Purpose Liquidators should be made. As Black J noted in In the matter of AT Air Group Pty Limited (in liq) [2012] NSWSC 1508 at [22] there is no reason, in principle or practice, why an application under s 477(2B) of the Act cannot be made by other parties to the agreement after the additional liquidator had been appointed and where the additional liquidator had made a decision to enter into the funding agreement and indicated that he or she sought approval from the Court to do so, for example by filing an affidavit supporting the application before the Court.

48    In Prestige Jewellery, orders were made, both for the appointment of the special purpose liquidators and for the approval to enter into the funding agreement, pursuant to s 477(2B) in the one order.

49    I gratefully adopt and agree with Markovic J’s observations. However, to avoid any doubt as to the Court’s ability to consider the deed of funding, the necessary orders appointing the Special Purpose Liquidators have already been made before the consideration of the terms of the funding agreement. As such, I am satisfied that the Court does have power to consider the terms of the funding agreement and make an order if so satisfied.

50    A copy of the deed of funding is in evidence before me and as will become apparent, will be subject to the terms of a confidentiality order. As such, it is not appropriate that I set out the terms of that agreement in the course of these reasons. However, what is clear from the deed of funding is that the Special Purpose Liquidators require the funding and indemnity which is provided by that deed for them to carry out the proposed investigations. Without the deed of funding, the proposed investigations (considered on whether to appoint the special purpose liquidators) would be unable to be undertaken.

51    The evidence of Mr Holland and Mr Connelly is that upon the Court ordering their appointment as Special Purpose Liquidators and the Court approving entry into the deed of funding, it is their intention to enter into that deed. Implicit in that is that the Special Purpose Liquidators consider the terms of the deed appropriate. As outlined in relation to the relevant principles for the exercise of the power under s 477(2B), it is not for the Court to second guess the commercial judgment of the Special Purpose Liquidators, but it is appropriate to take into account their views. On my review of the deed of funding, there does not appear to be any lack of good faith, error of law or principle or any real or substantial ground for doubting the reasonableness of the view of the Special Purpose Liquidators.

52    As such, I am satisfied that it is appropriate to order the approval, pursuant to s 477(2B), of the Special Purpose Liquidators’ entry into the deed of funding.

CONFIDENTIALITY – S 37AF FCA ACT

53    The final matter to be considered is confidentiality. The principle of open justice is fundamental to the common law. As Gibbs J said in Russell v Russell (1976) 134 CLR 495, at 520; [1976] HCA 23. Also see the New South Wales Court of Appeal’s description of the principle in Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at [32] (Bathurst CJ and McColl JA) and the Full Court of this Court in Ogawa (formerly Ms PD) v President of the Australian Human Rights Commission (Pseudonym) (2022) 294 FCR 221; [2022] FCAFC 160 at [23] (Rares, Perry and Hespe JJ). Section 17 of the FCA Act provides that except in certain circumstances, the jurisdiction of the Court shall be exercised in open Court. Section 37AF is such an exception: Lee v Deputy Commissioner of Taxation (2023) 296 FCR 272; [2023] FCAFC 22 at [85] (Thawley, Stewart and Abraham JJ).

54    Section 37AE of the FCA Act puts the principle of open justice as a primary matter to be taken into account when considering a suppression order or non-publication order: see Lee at [83]. The Court has the power to prohibit or restrict the publication or disclosure “information”, broadly defined in s 37AA, as provided for in s 37AF(1)(a) by making a suppression or non-publication order: see Ogawa at [24].

55    The Court may make a suppression or non-publication order on the basis of the grounds provided for in s 37AG(1) and the Court must specify the grounds on which it makes such an order: see s 37AG(2); Ogawa at [24] to [25].

56    Further, s 37AJ of the FCA Act provides that any order should not be for longer than is reasonably necessary to achieve the purpose for which it is made: see s 37AJ(2). There is conflicting authority about whether the suppression or non-publication order can be expressed to operate until further order: see Australian Securities and Investments Commission v Ferratum Australia Pty Limited (in liq) [2023] 169 ACSR 553; FCA 1043 at [60] to [66] (Kennett J).

57    The material which is proposed to be the subject of confidentiality could broadly be described as commercial in confidence or commercially sensitive information, which may form a sufficient basis for a grant of confidentiality order: see Australian Competition and Consumer Commission v Air New Zealand Limited (No 3) [2012] FCA 1430 at [35] (Perram J). The material for which confidentiality orders are sought might also be described as information which goes to revealing litigation strategy.

58    In the circumstances of this case, I am satisfied that a confidentiality order is necessary to prevent prejudice to the proper administration of justice. The material sought to be protected can be properly described as commercially sensitive. As such, a confidentiality order is appropriate.

59    The DCT submitted that the time period for which the material should remain confidential should be a period of five years from the date of the hearing (that would be 18 December 2030). The Sixth Defendant submitted primarily, although without wanting to contradict the position of the DCT, that an appropriate period might be one shortly after the last limitation period of 20 March 2029, so a date of 1 April 2029.

60    The order to be made should be one that is for no longer than is reasonably necessary to achieve its purpose. Although the identification of the last limitation period might be such a period, it may unnecessarily constrain the purpose for which the confidentiality is sought by only allowing some 10 days beyond the limitation period.

61    As such, the proposed period of five years from the date of hearing, is appropriate to allow sufficient time for investigations to be undertaken, information gathering to be obtained and any proceedings to be commenced, served and the like. Beyond that time, at least some matters of litigation strategy will have become apparent to those who are served with any proceedings. At this point in time, it is not possible to reasonably ascertain whether the deed of funding, which is in evidence in this proceeding, might then still require further confidentiality. It is likely, at such point in time, that the first stage, and potentially the second stage of funding, will have well passed, and it may be that the terms of the deed of funding (in evidence) no longer need to be kept confidential. However, the proposed orders do include provision for liberty to apply. If it is the case that at the five-year mark (or shortly before), the Special Purpose Liquidators are of the view that the deed of funding should remain confidential, then the liberty to apply provision can be invoked. The Court can consider whether to further extend the confidentiality orders on proper material at that time.

62    As such, I am satisfied that it is appropriate to make the following orders, being:

(1)    Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) (FCA Act), on the ground in s 37AG(1)(a), that the affidavits:

(a)    of Gary Busby headed “Confidentiality Affidavit” and affirmed 12 September 2025 and filed on 24 September 2025 (comprising 51 numbered pages) (the Busby Affidavit);

(b)    of Gary Busby headed “Confidential Affidavit” and affirmed and filed on 4 December 2025; and

(c)    of Gary Busby headed “Confidential Affidavit” and affirmed and filed on 16 December 2025,

be kept confidential and not provided or disclosed to any person or entity, except to the plaintiff's legal representative, the Court and Court staff for a period of five years from the date of this order in accordance with section 37AJ of the FCA Act.

(2)    Pursuant to s 37AF(1) of the FCA Act, on the ground in s 37AG(1)(a), the affidavit “Confidential Affidavit of Duncan Clubb”, affirmed and filed on 26 November 2025, is not to be published or otherwise disclosed to any person or entity, except to the parties to this proceeding, their legal representatives, the Court and Court staff for a period of five years from the date of this order, in accordance with s 37AJ of the FCA Act.

(3)    Any costs or expenses incurred by, or approved remuneration payable to, the Special Purpose Liquidators are not to be paid from any property of the First to Fifth Defendants, except that which the Special Purpose Liquidators recover as a consequence of the actions they have specifically been appointed to undertake pursuant to Annexure A of these orders.

(4)    The parties (including the Special Purpose Liquidators) have liberty to apply on three days’ notice.

(5)    There be no order as to costs.

(6)    Pursuant to s 477(2)(B) of the Corporations Act, the Court approves the Special Purpose Liquidators to enter into the Funding and Indemnity Agreement (in substantially the same form as the document exhibited to the Busby Affidavit at exhibit “GB-2”, save that clause 7a(iv) is to be deleted) on behalf of the First to Fifth Defendants.

THE COURT DIRECTS THAT:

(7)    In respect of any:

(a)    application for examinations under sections 596A and 596B of the Corporations Act as are necessary or desirable for the purposes of the investigations referred to in Annexure A; and

(b)    legal proceedings prosecuted or commenced as a result of the investigations and examinations referred to in Annexure A,

the parties have leave to be represented by two solicitors on the record, being the solicitors for the Sixth Defendant and for the Special Purpose Liquidators.

Associate:

Dated:    24 February 2026

SCHEDULE OF PARTIES