Federal Court of Australia

Ron Crouch Transport Pty Ltd, in the matter of Ron Crouch Transport Pty Ltd [2025] FCA 1688

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to subsections 447A(1) and 443B(8) of the Corporations Act 2001 (Cth) (Corporations Act), Part 5.3A of the Corporations Act is to operate in relation to the second plaintiff as if subsection 443A(1)(c) and subsection 443B(2) of the Corporations Act provide that the first plaintiff is not, on and from 22 December 2025 and up to and including 15 January 2026, personally liable for any debts or other liability with respect to any real property hired, leased, used or occupied, by the second plaintiff (including in respect of any amounts payable pursuant to any leases entered into by the second plaintiff).

2.    Within three (3) business days of the making of these orders, the plaintiffs are to take all reasonable steps to give notice of these orders to the creditors of the second plaintiff (including persons claiming to be creditors):

(a)    to be sent by email transmission to creditors for whom the first plaintiff has a current email address;

(b)    to be sent by ordinary post to creditors for whom the first plaintiff has only a postal address (or where notification is received of non-delivery of a notice sent by email in accordance with sub-paragraph 2(a) above);

(c)    in addition, by publishing notice of the relevant matter on the website of the first plaintiff.

3.    Within three (3) business days of the making of these orders, the plaintiffs are to take all reasonable steps to give notice of these orders to the Australian Securities and Investments Commission.

4.    Any person demonstrating sufficient interest in order 1 above has liberty to apply to vary that order on three (3) business days’ notice to the plaintiffs and to the Court.

5.    The plaintiffs’ costs of, or incidental to, this application are to be treated as costs in the administration of the second plaintiff and be paid out of the assets of the second plaintiff.

6.    Pursuant to section 37AF of the Federal Court of Australia Act 1976 (Cth) that, on the ground that non-disclosure of the evidence is necessary to prevent prejudice to the proper administration of justice, until such time as the external administration of the second plaintiff is concluded, or unless otherwise ordered, the confidential affidavit of Stephen Robert Dixon affirmed on 23 December 2025, including its annexures, be suppressed and not be provided or disclosed to any person, except a person whom the plaintiffs have consented to it being disclosed to, by placing it in a sealed envelope marked “Not to be accessed without the leave of a Judge of the Court”.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LONGBOTTOM J:

OVERVIEW

1    The first plaintiff (Mr Dixon) is the voluntary administrator of the second plaintiff (Company). Mr Dixon has brought an urgent application before me in my capacity as duty judge seeking an order pursuant to s 447A(1) and s 443B(8) of the Corporations Act 2001 (Cth), excusing him from personal liability for any debts or other liability with respect to eight premises leased by the Company (including in respect of any amounts payable pursuant to those leases).

2    The application was mentioned before Owens J on 23 December 2025 and listed before me today (29 December 2025). In the intervening period, the originating process and a supporting affidavit of Mr Dixon were served on the landlords of the premises and a circular issued to all the known creditors of the Company. At the hearing, two of the landlords appeared, one of whom opposed the relief sought.

UNCONTROVERSIAL FACTS

3    The facts material to the application are contained in two affidavits of Mr Dixon dated 23 December 2025 (one of which is the subject of an application for a suppression order), an affidavit of Mr Cameron Hamish Gray dated 29 December 2025 and an affidavit of Ms Angelina Kozary dated 29 December 2025. Mr Gray is an employee of the firm of which Mr Dixon is the managing partner. Ms Kozary is a solicitor with carriage of the proceeding on behalf of Mr Dixon and the Company. The facts contained in those affidavits are not relevantly in dispute.

Administration

4    The Company operates a transportation and logistics business. Mr Dixon was appointed as its voluntary administrator on 8 December 2025. On 18 December 2025, the first meeting of the creditors of the Company was held. The second meeting of the creditors of the Company must be held within five business days before, or after, the end of the convening period which expires on 15 January 2026: Act, s 439A.

Leases

5    As a result of his investigations as administrator, Mr Dixon believes that the Company operated the business out of eight premises in six different locations. Four premises are in New South Wales (three in Wagga Wagga and one in Orchard Hills), two are in Victoria (Laverton North and Altona North) and one is in each of Queensland (Wacol) and South Australia (Cavan). Each of the premises are leased.

6    The Company has been continuing to occupy each of the premises during the voluntary administration. The premises are used to store trucks and freight, secure and house client goods which are in the process of being transited and conduct administrative and other business operations. Mr Dixon gives evidence that some, or possibly all, of the premises presently store dangerous goods.

Sale as a going concern

7    Since his appointment, Mr Dixon has caused the Company to continue to trade. That is because he is advertising the business for sale as a going concern. To that end, on 11 December 2025, Mr Dixon advertised the business and assets of the Company for sale by inviting expressions of interest to be submitted by 19 December 2025.

8    Mr Dixon does not seek to be excused from personal liability for any debts incurred with respect to the premises prior to 22 December 2025. Mr Dixon would not, in any event, be personally liable for rent or other amounts payable by the Company to the landlords under the leases prior to 15 December 2025, being five business days after the administration began: Act, s 443B(2).

9    Mr Dixon could have issued notices within five business days of his administration commencing under s 443B(3) of the Act. The effect of such notices would be that Mr Dixon would not be personally liable for the rent or other amounts payable by the Company in respect of the premises during the period for which the notices remained in force: Act, s 443B(4). Mr Dixon gives evidence that he did not do so because of his decision to continue the business as a going concern.

10    The relief from personal liability sought by Mr Dixon is, instead, confined to the period from 22 December 2025 until 15 January 2026, being the first business day after the expressions of interest for the sale of the business closed (22 December 2025) until the end of the convening period for the second meeting of the creditors of the Company (15 January 2026).

11    As of 22 December 2025, Mr Dixon had received interest from 23 parties in respect of the sale of the business. Although Mr Dixon has received interest, he gives evidence that if the business can continue to trade and be sold as a going concern, then this will likely realise the most value for the Company’s creditors. The basis of that opinion is detailed in Mr Dixon’s confidential affidavit.

Liabilities

12    Mr Dixon gives evidence that to date, based on his analysis of the books and records of the Company, the potential or actual creditor claims total $27,084,959.27 (including employee entitlements, amounts owed to secured creditors and amounts owed to unsecured creditors). He has received proofs of debt totalling $5,624,674.73, but Mr Dixon has not yet adjudicated on those claims.

13    Mr Dixon’s firm has prepared an estimated profit and loss spreadsheet for the Company for the week ending 14 December 2025 until the week ending 18 January 2026. The spreadsheet indicates that, excluding the rent for the premises, the cumulative estimated loss for the Company for the weeks in respect of which Mr Dixon seeks to be relieved of personal liability (the week ending 28 December 2025 to the week ending 18 January 2026) is $1,033,727. The reasons for this include the slow down in trading over the Christmas and New Year period. The cumulative estimated loss for the Company was the impetus for Mr Dixon bringing this proceeding.

14    Insofar as it concerns the premises, as of 8 December 2025, the Company owed the landlords $2,301,199.99. The rent payable to the landlords for the period for which Mr Dixon seeks to be excused from personal liability totals $463,696 ($115,924 per week). Ms Tracey Whitby, who was granted leave to appear on behalf of the landlord of the Orchard Hills premises, contended that there may be additional moneys owing with respect to the make good obligation under that lease.

15    There exist securities in the form of bank guarantees with respect to the leases for the Orchard Hills, Laverton North, Altona North and Wacol properties. There are also personal guarantees for the Laverton North, Altona North and Wacol properties. Except for the Orchard Hills and Altona North premises, there is a substantial margin between the value of those bank guarantees and the current debt and ongoing rental liability of the Company to the landlords for those premises.

16    For Orchard Hills, the bank guarantee is in the amount of $961,309.80 of which, as of 8 December 2025, there was a debt of $946,602.18 with a weekly rent (excluding outgoings) of $40,988. For Altona North, there is a bank guarantee of $562,588.99 of which, as of 8 December 2025, there was a debt of $484,751 with a weekly rent (excluding outgoings) of $24,560.

17    There is no bank guarantee in respect of the premises at Cavan or Wagga Wagga. Two of the Wagga Wagga premises are owned by the parents of the director of the Company (Mr Ronald Crouch and Mrs Beverley Crouch) in their capacity as trustee of a family superannuation fund. One of the Wagga Wagga premises is owned by a company, the sole director, secretary and shareholder of which is the director of the Company (Mr Geoffrey Crouch).

Alternative option

18    If Mr Dixon is not excused from personal liability for the amounts payable to the landlords, he is not prepared to continue trading the business until 18 January 2026. That is because he is concerned that the Company will not have sufficient assets to satisfy his right of indemnity out of the property of the Company.

19    In that event, Mr Dixon gives evidence that he will need to immediately take steps to terminate the employment of all or the majority of the Company’s 105 employees. Mr Dixon will also need to take immediate steps to cause the Company to cease occupation of some or all of the premises and cease leasing some or all of its plant and equipment. In Mr Dixon’s opinion, the likely consequence of ceasing to trade is that the business will either not be able to be sold or will be sold at a significantly reduced price.

20    Mr Dixon gives evidence of other consequences of ceasing to trade. In summary:

(a)    Insofar as it concerns customer goods, the director of the Company has informed Mr Dixon that it will likely take at least two months to remove customer goods from the premises. If Mr Dixon ceases trading and the Company ceases occupation of all or some of the premises, then it will fall to the landlords to engage with the Company to collect their goods, including dangerous goods. Licences are required to store dangerous goods. Mr Dixon does not know if the landlords hold such licences or have access to the specialised software, plant or equipment necessary to locate and pick up the goods and provide them to the customers; and

(b)    If customers are unable to collect their goods, or if there are delays in doing so, then Mr Dixon considers that the creditors of the Company will likely be prejudiced because it will delay, prevent or hinder the collection of debts from those customers. As of 8 December 2025, the Company’s debtors represent a significant asset of the Company, with a value of approximately $4,000,000.

Service

21    As mentioned at the outset of these reasons, the landlords of the premises have been served with the originating application and non-confidential affidavit of Mr Dixon. The confidential affidavit of Mr Dixon has been provided to the solicitors for the landlord of the Wacol premises (ESR Investment Nominees 3 (Australia) Pty Ltd) on their providing a confidentiality undertaking to Mr Dixon.

22    Except for Mr Ronald Crouch and Mrs Beverley Crouch, the landlords of each of the premises have communicated with either Ms Kozary or Mr Gray. Mr Geoffrey Crouch, on behalf of the landlord of one of the Wagga Wagga premises, consents to the relief sought by Mr Dixon. Of the remaining premises: the landlord of Laverton North (Tatong Holdings) appeared at the hearing of the application and neither consents to nor opposes the relief sought by Mr Dixon; the landlord of the Orchard Hills premises (Aware Real Estate) appeared at the hearing and opposes the relief sought; and the landlords of the remaining premises (Altona North, Cavan and Wacol) neither appeared, nor is there evidence of whether they oppose or consent to the relief sought.

STATUTORY FRAMEWORK

23    The Court is empowered by s 447A(1) of the Act to make such orders as it thinks appropriate about how Pt 5.3A (which concerns the administration of companies) is to operate in relation to a particular company. This includes the power to make orders limiting an administrator’s personal liability: Strawbridge (Administrator), in the matter of CBCH Group Pty Ltd (Administrators Appointed) (No 2) [2020] FCA 472 at [35] to [36] (Markovic J), citing Mentha, in the matter of Griffin Coal Mining Company Pty Ltd (administrators appointed) [2010] FCA 1469; (2010) 82 ACSR 142 at [29] (Gilmour J).

24    That personal liability arises by reason of s 443A and s 443B of the Act, which relevantly provide as follows:

443A    General debts

(1)    The administrator of a company under administration is liable for debts he or she incurs, in the performance or exercise, or purported performance or exercise, of any of his or her functions and powers as administrator, for:

    …

(c)    property hired, leased, used or occupied, including property consisting of goods that is subject to a lease that gives rise to a PPSA security interest in the goods; or

        …

443B    Payments for property used or occupied by, or in the possession of, the company

Scope

(1)    This section applies if, under an agreement made before the administration of a company began, the company continues to use or occupy, or to be in possession of, property of which someone else is the owner or lessor, including property consisting of goods that is subject to a lease that gives rise to a PPSA security interest in the goods.

General rule

(2)    Subject to this section, the administrator is liable for so much of the rent or other amounts payable by the company under the agreement as is attributable to a period:

(a)    that begins more than 5 business days after the administration began; and

(b)    throughout which:

(i)    the company continues to use or occupy, or to be in possession of, the property; and

(ii)    the administration continues.

(3)    Within 5 business days after the beginning of the administration, the administrator may give to the owner or lessor a notice that:

(a)    specifies the property; and

(b)    states that the company does not propose to exercise rights in relation to the property; and

(c)    if the administrator:

(i)    knows the location of the property; or

(ii)    could, by the exercise of reasonable diligence, know the location of the property;

    specifies the location of the property.

…

(8)    Subsection (2) does not apply in so far as a court, by order, excuses the administrator from liability, but an order does not affect a liability of the company.

25    Section 443B(8) allows the Court to excuse the administrator from liability to pay rent, even after the five-business-day period has passed: Strawbridge at [39], citing Silvia v FEA Carbon Pty Ltd [2010] FCA 515; (2010) 185 FCR 301 at [12] to [13] (Gilmour J). In any event, s 447A of the Act adoes not preclude the making of an order with future effect, but in respect of past matters or events: Strawbridge at [39], citing Australasian Memory Pty Limited v Brien [2000] HCA 30; (2000) 200 CLR 270 at [26] (Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ).

26    The developed rationale for the operation of these provisions is that administrators should not be expected to expose themselves to substantial personal liabilities in the performance of their statutory duties, and orders made relieving them of potential liability will permit them to conduct the commercial operations of the relevant company influenced by concern for their personal liability: Park, in the matter of IG Power (Callide) Ltd (Administrators Appointed) [2024] FCA 1012 at [23] (Derrington J).

27    In Griffin Coal, Gilmour J summarised the principles governing the grant of an application for orders under s 447A of the Act to vary the liability of an administrator under s 443A of the Act, as follows (at [30]):

(a)    the proposed arrangements are in the interests of the company’s creditors and consistent with the objectives of Part 5.3A of the Corporations Act: Re Great Southern at [13].

(b)    typically the arrangements proposed are to enable the company’s business to continue to trade for the benefit of the company's creditors: Re Malanos at [9] and Re View at [17].

(c)    the creditors of the company are not prejudiced or disadvantaged by the types of orders sought and stand to benefit from the administrators entering into the arrangement: Re View at [18], and also Re Application of Fincorp Group Holdings Pty Ltd [2007] NSWSC 628 at [17].

(d)    notice has been given to those who may be affected by the order: Re Great Southern at [12].

CONSIDERATION

28    Having regard to the factors identified in Griffin Coal and the evidence upon which he relies, I am satisfied that it is appropriate to make orders pursuant to s 447A(1) and s 443B(8) of the Act, excusing Mr Dixon from personal liability in respect of the debts or other liability to the landlord for the premises for the period 22 December 2025 up to and including 15 January 2026. That is for the following reasons.

Part 5.3A of the Act

29    The object of Pt 5.3A of the Act is to administer the business, property and affairs of a company in a way that will maximise the chances of the company continuing in existence or, if that is not possible, in a way which results in the best return to the company’s creditors and members than that which would result from an immediate winding up of the company: Act, s 435A(1).

30    The proposed arrangement is to enable the Company’s business to continue to trade so that the business and the assets of the Company can be sold as a going concern: cf, Griffin Coal at [30(b)]. Mr Dixon has given evidence that this proposal will likely realise the most value and be in the best interests of the creditors of the Company as a whole. I am satisfied, having regard to the matters contained in Mr Dixon’s confidential affidavit, as to the basis upon which he holds that view. It is an opinion that is to be afforded significant weight, given that it comes from the administrator of the Company: Strawbridge at [48], citing In the matter of Renex Holdings (Dandenong) 1 Pty Ltd (administrators appointed) [2015] NSWSC 2002 at [9] (Black CJ).

31    Counsel for Mr Dixon submits, and I accept having regard to that evidence, that enabling the business to continue to operate for a relatively short period (until the end of the second convening period on 15 January 2026) accords with the objects of Pt 5.3A of the Act because it will result in a better return for the creditors than would be the case were the Company immediately wound up: cf, Griffin Coal at [30(a)]. I hold that view having regard not just to Mr Dixon’s opinion as to the benefits of continuing the business as a going concern, but also his evidence as to the consequences were the Company to immediately cease training as outlined above. For those same reasons, I am satisfied that the arrangement proposed by Mr Dixon is otherwise for the benefit of the creditors of the Company: cf, Griffin Coal at [30(a)].

Disadvantage or prejudice

32    Turning then to the question of prejudice or disadvantage, the detriment in granting the relief sought by Mr Dixon is that those landlords for whom there is no (or an insufficiently large) bank guarantee will become unsecured creditors in respect of the rental payments due to them for the period in which the orders operate, namely 22 December 2025 until 15 January 2026. That detriment concerns the landlords for the Wagga Wagga, Orchard Hills and Altona North premises.

33    That detriment is to be weighed against the following factors:

(a)    If the relief is not granted, then the premises will be immediately vacated. The landlords would not be able to take possession of the premises or otherwise recover it without the consent of Mr Dixon or leave of the Court: Act, s 440B(2). In any event, the landlords would have to deal with the removal of the goods of the customers of the Company. This includes the potential of having to deal with dangerous goods kept on the premises;

(b)    On the other hand, if the relief is granted and a sale of the business and the assets of the Company (or parts thereof) can be achieved, then there is a possibility that any prospective purchaser may take over the lease of one or more of the premises from which the business operates; and

(c)    The orders sought by Mr Dixon include provision for liberty to apply to vary the relief sought on three business days’ notice. An order of this type was made by Markovic J in Strawbridge. Counsel for Mr Dixon submitted that the effect of such an order is to address the position of the landlords, given the urgent circumstances in which the application was brought. That submission was particularly directed to concerns raised by the Orchard Hills landlord about the application proceeding in circumstances where its lawyers were on leave across the holiday period and had not responded to their communications. I accept that the order is a factor that weighs in favour of the grant of the principal relief sought by Mr Dixon. That is because such an order makes explicit that a person in the position of the landlords can apply to vary the order excusing Mr Dixon of personal liability, should circumstances change or there is other material relevant to the making of those orders that the landlords, or indeed other creditors, wish to place before the Court.

34    Given those matters, I am satisfied, on balance, that the landlords are likely to be in no worse position if the relief sought by Mr Dixon were granted to them than they would be if the relief were not granted, and the business ceased to operate: cf, Griffin Coal at [30(c)]. While there is no certainty, if the order is made and the Company is permitted to continue as a going concern for a short period, then there is at least a potential for the position of the landlords to ultimately improve.

Notice

35    Turning then to the question of notice, the evidence with respect to the landlords is addressed above. As mentioned at the outset of these reasons, Mr Dixon has also given, or attempted to give, notice to the creditors of the Company, including its employees. It appears, from the evidence of Mr Gray, that those attempts have had mixed success. The computer records maintained by the firm for which both Mr Gray and Mr Dixon are employees, indicates that an “undeliverable” response was received from 13 email addresses of creditors sought to be notified.

36    That said, as counsel for Mr Dixon highlights, the orders sought by the originating application are directed to addressing any concerns that the Court might have with respect to the issue of notice. That is because the relief sought by Mr Dixon includes an order that, within three business days of the making of any order granting the relief sought by the originating application, Mr Dixon and the Company are to take all reasonable steps to give notice of the orders to the creditors of the Company. Such notice is to be provided by email to the creditors for whom Mr Dixon has a current email address. In addition, notice is to be provided by way of ordinary post to those creditors for whom Mr Dixon has only a postal address or has received a “undeliverable” response by email. The notice is also to be published on Mr Dixon’s website. Of course, as already mentioned, the orders sought include provision for any person with a sufficient interest to apply to the Court to vary an order excusing Mr Dixon from personal liability.

37    Given those additional orders and that notice was effected on the landlords of the premises (who are principally affected by the relief sought by Mr Dixon) I am satisfied that the notice provided with respect to the originating application, while short, is sufficient: cf, Griffin Coal at [30(d)].

Relief from personal liability

38    It follows, in the circumstances of this case, and having regard to each of the matters that I have set out above, I am satisfied that it is an appropriate case to grant Mr Dixon relief from personal liability. The circumstances of this application are somewhat less extreme than those considered by Markovic J in Strawbridge. That said, I am satisfied that there is a proper basis for the relief sought given the changing circumstances in which Mr Dixon has found himself following the sale process, including the cumulative estimated losses identified in the spreadsheet.

39    Viewed in that light, consistent with the principles identified in Griffin Coal at [30], and in the interest of the creditors of the Company as a whole, I am prepared to grant Mr Dixon and the Company the relief sought.

SupPression or non-publication order

40    There remains the question of the affidavit of Mr Dixon in respect of which a suppression order is sought, pursuant to Pt 5AA of the Federal Court of Australia Act 1976 (Cth). Section 37AF(1)(b)(iv) of the Federal Court Act empowers the Court to make a suppression order or a non-publication order prohibiting or restricting the publication or other disclosure of information lodged or filed with the court that relates to a proceeding before it. The grounds upon which such an order may be made are prescribed by s 37AG and relevantly include that the order is necessary to prevent prejudice to the proper administration of justice: Federal Court Act, s 37AG(1)(a).

41    In deciding whether to make a suppression or non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice: Federal Court Act, s 37AE. To that end, s 37AJ of the Federal Court Act requires the Court, if it is determined to make a non-publication or suppression order, to ensure that in deciding the period for which such an order is to operate, it operates for no longer than that which is reasonably necessary to achieve the purpose for which the orders are made.

42    The principles relevant to the making of an order in a case such as this were helpfully summarised by Cheeseman J in Tracy, in the matter of Linchpin Capital Group Limited (in liq) [2022] FCA 104 at [21]:

It is well established that commercial sensitivity can be an appropriate basis for making a suppression or non-publication order: Clark v Digital Wallet Pty Ltd [2020] FCA 877 at [21] – [22] (Abraham J); see also Australian Competition and Consumer Commission v Air New Zealand Limited (No 3) [2012] FCA 1430 at [35] (Perram J); Australian Competition and Consumer Commission v Origin Energy Electricity Ltd [2015] FCA 278 at [148] (Katzmann J). Further the clear public interest in the due and beneficial administration of the estates of insolvent companies for the benefit of creditors is a relevant consideration in favour of granting an order under s 37AF: see Onefone Australia Pty Ltd v OneTel Ltd [2010] NSWSC 498; (2010) 78 ACSR 163 at 164 [2] - [5] (Barrett J as his Honour then was).

43    I am satisfied that this is an appropriate case to make a suppression or non-publication order on the ground stated in s 37AG(1)(a) of the Federal Court Act. Based on my review of the affidavit, I accept that it contains material attended by commercial sensitivity. Consistent with the approach taken by Markovic J in Strawbridge, I am satisfied that maintaining the confidentiality of the affidavit will serve to protect the capacity of Mr Dixon to administer the affairs of the Company for the benefit of its creditors. There is a clear public interest for such an outcome. That, in turn, justifies the making of the order sought for suppression or non-publication of the affidavit on the ground set out in s 37AG(1)(a) of the Federal Court Act: cf, Strawbridge at [70] to [71].

Conclusion

44    For those reasons, I will make orders substantially in the terms sought by Mr Dixon.

Associate:

Dated: 6 January 2026