Federal Court of Australia

CIP Group Pty Ltd v So (No 12) [2026] FCA 60

ORDERS

THE COURT ORDERS THAT:

1.    The name of each of the second, third, fourth, ninth, eleventh and thirteenth respondents in the schedule of parties is amended by inserting the words (in liquidation) after each reference to receiver and manager appointed.

2.    Leave is granted to the applicants to amend substantially in accordance with:

(a)    the draft Fourth Amended Originating Application, save for the amendment to the claim for relief at [18], and

(b)    the draft Third Further Amended Statement of Claim save for the amendments proposed at [155A] – [155C], [191] – [192] and the claim for relief at [18],

each as attached to the interlocutory application filed 20 November 2025.

3.    The amended originating application and statement of claim must be filed by 4 pm on 10 February 2026, in two forms with one version containing the marked-up amendments and the other that does not.

4.    The interlocutory application of the first and fourteenth to twentieth respondents filed on 25 November 2025 is dismissed.

5.    The interlocutory application of the twenty-second and twenty-third respondents filed on 25 November 2025 is dismissed.

6.    The orders made by Derrington J on 28 November 2024 are amended pursuant to r 39.05(h) of the Federal Court Rules 2011 (Cth) by substituting for the reference at order 3 to the eighth respondent, the ninth respondent.

7.    By 4pm on 20 February 2026:

(a)    the parties must file consent orders which deal with all consequential orders that are sought including but not limited to costs and the setting of a procedural timetable designed to bring this proceeding to trial commencing on 11 May 2026; or

(b)    failing agreement, in whole or in part, their respective proposed orders together with short supporting submissions not exceeding three pages.

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

REASONS FOR JUDGMENT

MCELWAINE J:

Synopsis

1    These reasons resolve the balance of the interlocutory applications that I heard between 10 and 12 December 2025. They assume familiarity with the general background to the disputes that I set out in CIP Group Pty Ltd v So (No 11) [2025] FCA 1547 at [1] – [13]. I also adopt the agreed nomenclature of the parties whereby the applicants and the second to thirteenth respondents are collectively the Clancy parties, the first and fourteenth to twentieth respondents are the So parties and twenty-second and twenty-third respondents are the TM parties. The Carver’s Reach entities are a subset of the Clancy parties comprising GGPG Pty Ltd (Receiver and Manager Appointed) (in liq) (the second respondent) and each of the third to twelfth respondents. The thirteenth respondent is Axis North Pty Ltd (Receiver and Manager Appointed) (in liq). For convenience, in these reasons each reference to the Carver’s Reach entities should be understood as including Axis North unless otherwise stated.

2    For reasons published on 18 December 2025, I set aside earlier orders that proceeding QUD 462 of 2022 be heard and determined concurrently with this proceeding: GGPG Pty Ltd (Receiver and Manager Appointed) v Golden Eagle Property Group Pty Ltd (No 2) [2025] FCA 1620. Proceeding QUD 462 of 2022 is listed for trial to commence on 9 February 2026.

3    There are three remaining interlocutory applications to be determined. The Clancy parties by interlocutory application filed on 20 November 2025 seek leave to amend the Third Originating Application and the Second Further Amended Statement of Claim (Clancy parties’ application). The So parties by interlocutory application filed on 25 November 2025 seek revocation of the grants of derivative leave nunc pro tunc pursuant to ss 236 and 237 of the Corporations Act 2001 (Cth) in favour of the applicants to commence this proceeding. They also apply for an order that the originating application be dismissed on the basis that if derivative leave is revoked, then the applicants have no authority to continue the proceeding (So parties’ application). The TM parties by interlocutory application filed on 25 November 2025 also seek orders revoking the grant of derivative leave and that the originating application be dismissed (TM parties’ application).

4    Broadly, the fundamental problem which the Clancy parties identify is that Marc Clancy, who is the individual responsible for giving instructions for the Clancy parties and who was to be the primary witness of fact in support of their claims, is no longer willing to give evidence in consequence of being charged with a number of fraud offences that overlap with allegations pleaded by the So parties in defence of the claims. He is anxious to maintain his privilege against self-incrimination. In consequence, the Clancy parties seek leave to amend, the effect of which is to abandon significant aspects of the claims against the So parties and the TM Parties and to narrow the case to one that alleges a double duty conflict on the part of Terence So. The objective is to have set aside a loan deed dated 29 November 2019 (and related securities) with considerable consequential relief. In part the amendments are not opposed by the So parties and the TM parties to the extent that claims are abandoned, but new claims (or reformulated aspects of existing claims) are opposed.

5    For the following reasons, I grant leave to the Clancy parties to amend by deletion of the allegations they no longer wish to pursue and, to a limited extent, to include new contentions. There are some proposed amendments that I refuse. I have also determined that each of the So parties’ and the TM parties’ applications should be dismissed. That leaves large questions about costs and further procedural orders to bring this longstanding matter to trial, about which I will receive further submissions.

Initial confusion

6    Part 2F.1A (ss 236 – 242) of the Corporations Act does not apply to companies in liquidation: Chahwan v Euphoric Pty Ltd [2008] NSWCA 52; (2008) 245 ALR 780. Justice Derrington initially made orders on 16 December 2022 granting leave nunc pro tunc to the applicants pursuant to ss 236 and 237 of the Corporations Act to commence this proceeding in the name of the second to thirteenth respondents: CIP Group Pty Ltd v So [2022] FCA 1490 (CIP No 1). It was not then drawn to his Honour’s attention that Axis North was wound up on 26 April 2022. That fact was not disclosed in the list of respondents in the schedule to any of the filed court documents. The winding up order was made after Marc Clancy made his affidavit in support of derivative leave on 25 March 2022, and the ASIC search for Axis North attached thereto was dated 24 January 2022. No updated search was adduced in evidence to his Honour. Marc Clancy made a later affidavit on 5 August 2022 where the fact of winding up of Axis North is mentioned in an attachment, but no updated ASIC search was provided.

7    That is not the only error concerning derivative leave. Rochedale Holdings 1 Pty Ltd (the ninth respondent) was wound up on 18 October 2024. On the same day Park Ridge 94 Pty Ltd (third respondent) and Park Ridge 96 and 98 Pty Ltd (fourth respondent) were also wound up. At a case management hearing before his Honour on 28 November 2024, the applicants sought leave to continue the proceeding “in the inherent jurisdiction” (sic) for the third, fourth and eighth (sic) respondents. The eighth respondent is Rochedale Holdings Pty Ltd (Receiver and Manager Appointed). It is not in liquidation.

8    Justice Derrington made an unopposed order on 28 November 2024 that:

The applicants have leave in the Court’s inherent jurisdiction nunc pro tunc to continue prosecuting the claims and seeking the relief in the names of the third, fourth and eighth respondents which were the subject of the leave granted by Orders of Derrington J dated 16 December 2022, 10 March 2023, 5 September 2023 and 3 September 2024.

9    The transcript for 28 November 2024, records that counsel for the Clancy parties, Mr Pomerenke KC, submitted without explanation that the order could be made in “the court’s inherent jurisdiction in respect of the derivative claims brought in the names of the third, fourth and eighth respondents”. It was not explained how this Court has inherent jurisdiction (a matter I address in the balance of these reasons). Nor was it explained why a grant of derivative leave was required to continue the proceeding in the name of those companies when the orders of 16 December 2022 granted leave to commence the proceeding, and ss 236 and 237 are concerned with leave to “bring” a proceeding. They are not concerned with the continuation of a proceeding once commenced with leave. In any event, the Clancy parties now submit that the reference to the eighth respondent was an inadvertent error and request that the order be corrected under the slip rule to refer to the ninth respondent. I deal with that application at the end of these reasons.

10    That does not conclude the matters of initial confusion in the current applications. The schedule of parties to the filed documents in support fail to correctly record the status of the Carver’s Reach entities in all respects. For example the Clancy parties application (filed 20 November 2025) fails to record that the second, third, fourth, ninth, eleventh and thirteenth respondents are in liquidation, when the evidence relied on discloses that winding up orders were made as follows: second respondent, 10 March 2023; third and fourth respondents, 18 October 2024; ninth respondent 18 October 2024; eleventh respondent, 16 March 2023; and thirteenth respondent 26 April 2022. The balance of the Carver’s Reach entities are in receivership. One order that I make is designed to ensure that the errors in the description of the parties are not repeated.

11    I highlight these matters because it is important to understand what powers the Court is being asked to exercise in deciding the amendment application and whether derivative leave should be revoked. With respect to counsel, the submissions did not always distinguish between the general power at s 241 of the Corporations Act to make any orders considered appropriate when a proceeding has been commenced with derivative leave, powers pursuant to the Federal Court of Australia Act 1976 (Cth) (FCA Act) and the Federal Court Rules 2011 (Cth) to make appropriate orders in the management of a proceeding and the incidental power of this Court to make derivative leave orders where a company is in liquidation. I explain these matters in more detail when I address each application.

The pleaded case in outline

12    What follows is reduced to the matters essential to resolution of the present applications. Marc Clancy and Terence So were in the business of subdividing land, conducted through various corporate entities known as the Golden Gate Property Group. The business commenced in 2015. In early 2017, the Carver’s Reach development was commenced comprising a residential subdivision of land at Park Ridge Road, Park Ridge in Queensland of up to 600 allotments. Marc Clancy was responsible for the development aspects and Terence So for financing. Financing was provided through a combination of external lenders (primarily Makro Finance Pty Ltd) and by Ultimate Investment Portfolio Pty Ltd, a company controlled by the So parties and of which Terence So was appointed as a director. He, and his wife Kei Tsang, held all the issued shares in Ultimate. Ultimate provided finance to GGPG as the principal development entity through a series of unsecured and undocumented loans. By October 2019 the total of the advance was some millions of dollars, but the precise quantum is disputed by the Clancy parties. By late 2019, a substantial interest payment of approximately $155,000 was due to be paid to Makro by some of the Carver’s Reach entities. Absent a further advance from Ultimate, the repayment could not be made.

13    The Clancy parties contend that on or about 31 October 2019, Ultimate “purported” to be owed $7,011,718 by GGPG. They plead that sum was not then owed and as the pleading stood prior to the amendment application, the contention is that “instead” Ultimate (or one or more of Mr So and members of his family) owed money to GGPG and they rely on an expert forensic accounting report of Daniel Quinn dated 21 March 2025 to establish that fact. Until November 2019, the Clancy parties contend that financing provided by Ultimate was ad hoc, funds were “typically” advanced in the absolute discretion of Terence So and the funds were applied to meet the development expenses. Further, that the advances were “not subject to any agreed rate of interest” or any agreed term or repayment date. They further plead that between October and November 2019, the Carver’s Reach entities did not have the financial resources available to pay out the Ultimate loan in the alleged sum at short notice or absent a reasonable time to secure refinancing. These contentions lead to the conclusion that the Carver’s Reach entities were reliant upon advances from Ultimate from time to time to fund the expenses of the development, including the payment to Makro and that in consequence it was in the best interests of the Carver’s Reach entities that they continue to have access to funding from Ultimate “on the existing terms” and correspondingly that it would “be to the obvious detriment” of the Carver’s Reach entities should Ultimate insist upon repayment of its loan in the amount purportedly due as at October 2019 within a short time or absent a reasonable time to obtain refinancing.

14    The Clancy parties further plead that in October 2019, Terence So knew that any amount owed by GGPG, or any other company within the Group, to Ultimate was “significantly less” than $7,011,718. Various documents are then particularised as supporting that allegation.

15    With that context the pleading is that in October 2019, Terence So sought to require the Carver’s Reach entities to enter into a written loan agreement with Ultimate and to provide security in support. To that end, he engaged the TM parties, Mr Wong in particular, for advice. This led to the drafting of a loan deed between Ultimate and GGPG and associated security agreements comprising mortgages, guarantees and indemnities. On 29 November 2019, the Carver’s Reach entities (together with some other corporations) executed a loan deed between Ultimate as lender, GGPG as borrower and the Carver’s Reach entities as guarantors, a related guarantee and indemnity, a general security deed and mortgages over the Carver’s Reach development land. The primary terms as recorded provided for an initial amount owing of $7,011,718 together with further advances in the sum of $1,000,000 (or such higher amount as agreed between Ultimate and GGPG), interest at 20% per annum to be capitalised monthly, repayment by the earlier of 12 months from the date of the loan or upon the happening of an event of default (in which case the entire amount then due became immediately repayable).

16    A case of misleading or deceptive conduct (Corporations Act s 1041H and or Australian Securities and Investment Commission Act 2001 (Cth) ss 12BAA, 12BAB and 12DA) is pleaded arising from oral representations said to have been made by Terence So at a meeting on 25 November 2019, relating to the reasons for requiring that the Ultimate loan be documented, the term and the circumstances under which a demand for payment would be made. There is a separate claim concerning a loan agreement for an advance of $3,500,000 from Ms Yinga Yang (a relative of Terence So) to Axis North where the Clancy parties contend that Terence So failed to apply the funds for the benefit of the borrower and misdirected the advance to related entities.

17    There were further advances and GGPG complied with the obligation to pay interest (or if it did not, interest was capitalised). Certain steps were taken to consolidate and refinance the Makro loan. That remained the position until December 2021, despite the contention that by about June 2021, Terence So and formed the view that he did not trust Marc Clancy and no longer wished to be in business with him. A component of the Clancy parties’ case is that at no point during the refinancing or between July and December 2021, did Terence So advise Marc Clancy that he had formed an adverse view of him and nor did he advise or warn him that he and Ultimate would require the Ultimate advance to be repaid. Despite those matters, the Clancy parties contend that on 10 December 2021, Terence So caused Ultimate to issue notices of demand requiring repayment of $10,801,334.72 immediately and took other steps to transfer funds from the bank accounts of some of the Carver’s Reach entities for his benefit, or the benefit of entities associated with him. Contrary to the notices of demand, the Clancy parties contend that GGPG did not owe Ultimate the amount demanded and in support they rely on the forensic analysis of Daniel Quinn. They also contend Terence So was aware that the amount owed “was significantly less” than the amount demanded.

18    On 16 December 2021, being three business days after the demand, Terence So caused Ultimate to appoint a receiver and manager of the Carver’s Reach entities pursuant to the security documentation. On the case of the Clancy parties, that was not reasonable notice for repayment and nor was it a reasonable period to permit the Carver’s Reach entities to refinance. During the receivership, the Carver’s Reach land was sold in various parcels and the receiver accounted to Ultimate for the balance funds.

19    Terence So was at all material times a director of the Carver’s Reach entities, in particular with Marc Clancy he was a director of GGPG. This leads to various contentions that Terence So owed fiduciary duties to the Carver’s Reach entities. The usual duties are identified: to act in good faith in the best interests of the Carver’s Reach entities, to exercise his powers and discharge his duties for the purposes for which they were conferred and not for collateral purposes, to avoid conflicts of interest and not to misuse information obtained by virtue of his position to advance his own interests or to cause detriment to the Carver’s Reach entities. Concurrently, that he was bound by each of the obligations at ss 181(1), 182(1) and 183(1) of the Corporations Act. The Clancy parties contend in multiple ways that Terence So breached these duties by his conduct in 2019 and separately in 2021.

20    As to the 2019 conduct, the Clancy parties plead that in seeking and executing the Ultimate loan and security documents, Terence So acted to protect his and Ultimate’s interests, extracted benefits for himself and Ultimate to the detriment of the Carver’s Reach entities, acted contrary to his obligation to exercise his powers and discharge his duties for proper purposes and in the best interests of the Carver’s Reach entities, misused his position as a director to improperly gain an advantage for himself and Ultimate and to cause detriment to the Carver’s Reach entities and failed to act in good faith and in the best interests of the Carver’s Reach entities. There are related contentions that he misused information acquired by him in his role as a director of the Carver’s Reach entities to benefit himself and Ultimate and to cause detriment to those entities.

21    Separately, it is pleaded that Terence So placed himself in a position where there was a conflict or a potential conflict between his and Ultimate’s interests on the one hand and those of the Carver’s Reach entities on the other and, despite that conflict, he acted in the interests of himself and Ultimate and to the detriment of the Carver’s Reach entities. It is contended that Ultimate was knowingly concerned in or a party to the breaches of Terence So and that similarly Mr Wong aided, abetted, counselled and procured or was knowingly concerned in or a party to the breaches of Terence So in acting as his and Ultimate’s solicitor.

22    As to the 2021 conduct, the broad contention is that by causing the notice of demand to be issued, and thereafter by appointing the receiver and manager, it may be inferred that Terence So’s purpose was to use the powers conferred on Ultimate under the loan and security documents to take control of the Carver’s Reach entities to protect his and Ultimate’s interests and to cause detriment to the Carver’s Reach entities, which it is said were not proper corporate purposes of the Carver’s Reach entities. Similarly, as with 2019 conduct, there are further contentions to the effect that Terence So acted in the interests of himself and Ultimate, caused detriment to the Carver’s Reach entities, improperly used his position as a director, failed to act in good faith and in the best interests of the Carver’s Reach entities and placed himself in a position where there was an actual or potential conflict between his and Ultimate’s interests on the one hand and those of the Carver’s Reach entities on the other. There is a further pleading that Ultimate was knowingly concerned in those breaches and that Mr Wong, who was still acting as the solicitor, was aware of the facts that caused Terence So to be in breach of his duties and thereby aided, abetted, counselled and procured or was knowingly concerned in the breaches or a party thereto.

23    Loss and damage is pleaded in the following way. For the 2019 and 2021 conduct, the primary loss is contended to be the lost opportunity to derive a profit from continuing and completing the Carver’s Reach development plus additional interest and holding costs incurred during the receivership and the deficit payable to creditors by the Carver’s Reach entities following the sale of the development land. The lost profit opportunity was put in the order of $50 to $60 million.

The Clancy parties’ application

24    The proposed amendments may conveniently be divided into seven parts. First, leave is sought to abandon many allegations comprising the misleading and deceptive conduct case, breach of duty by Terence So relating to the Yang loan, the application for relief pursuant to ss 232 and 233 of the Corporations Act, the s 180 Corporations Act case and the lost opportunity damages claim. To this extent, the So parties and the TM parties do not oppose the application, subject to the question of costs.

25    Second, amendments are proposed at [49] to recast how it is contended that the balance of the Ultimate loan was not $7,011,718 at 31 October 2019. Reliance is no longer placed on the expert report of Daniel Quinn, and he will not be called as a witness. In the place of his report there is the open allegation that: “Ultimate was not owed that sum by GGPG.” Further, in the alternative the amount owed “was significantly less” than that sum by reference to the matters pleaded at [54A], which in turn provides (the underlined portions comprise the proposed amendments):

As at 30 October 2019 and up to and including 29 November 2019, Mr So, in his role as pleaded in paragraph 38(b) above, knew that any amount owed by GGPG (or alternatively companies in the Golden Gate Property Group) to Ultimate (or alternatively the So family) was significantly less than $7,011,718.

Particulars

In addition to the matters pleaded in paragraphs 9, 13, 28 and 29 to 48 and 50 to 53 above, Mr So’s knowledge can be inferred because:

1.     of the matters pleaded in paragraphs 59B and 59C of the Clancy parties’ reply to the defence of the So respondents filed 23 October 2024 of the fact that none of Mr So’s spreadsheets which purportedly recorded the principal amount owing under the purported Ultimate loan, whether prepared contemporaneously or during the course of this proceeding, record a consistent balance, given that:

(a)     Annexure A to the purported loan deed contains an arithmetical error of $843,188, the effect of which meant that the purported loan balance as at 15 October 2019 was stated as $6,020,192 (excluding interest) when it should have been $5,177,004 (excluding interest);

(b)     Mr So’s “Spreadsheet 1” referred to in his affidavit of 18 September 2025 at [32] [SNS.013.001.0042] calculates the purported loan balance as at 15 October 2019 and up to 31 October 2019 as $5,241,574 (excluding interest);

(c)     Mr So’s spreadsheet prepared for and annexed to his affidavit dated 3 June 2024 in proceeding QUD 498/2023 [CRT.004.001.0023] calculates the purported loan balance as at 15 October 2019 and up to 31 October 2019 as $5,191,574 (excluding interest);

(d)     Mr So’s CS loan spreadsheet provided to Mr Wong on 31 October 2019 [PXW.001.001.5890] calculates the amount purportedly owed to Mr So’s family as at 31 October 2019 at $5,996,286 (excluding interest);

2.     on 22 October 2019, in response to a request from Mr Wong to complete a table recording loans, properties and companies [PXW.001.001.4101; PXW.001.001.4102], Mr So emailed Mr Wong [PXW.001.001.5812] attaching a table titled “Summary of Loans” [PXW.001.001.5813] which identified that Ultimate was owed $6,946,933 at 20% interest by GGPG as at 31 October 2019;

3.     in a voice note from Mr So to Mr Wong dated 23 October 2019 [PXW.005.001.0011 and MAC.0010.0001.0002 at p2], Mr So said “[s]o far, I have provided (stuff) relating to the loan, the transfer and transaction, that is, the whole loan amount is inclusive of the equity that I have injected into it”, the equity being at least the amount of $1,015,430 identified in Annexure A to the purported loan deed;

4.     in a voice note from Mr So to Mr Wong dated 30 October 2019 [PXW.005.001.0026 and MAC.0010.0001.0002, p4], Mr So said “the updating is nearly complete. If things go to plan, I will be able to send it to you tonight. All the incomings and outgoings are very clearly recorded. I have looked at the transactions in relation to the childcare. It turns out that when I did the outward transfers, they were all done via Ultimate, that is, transferred outwards via my company. Also in relation to Wharf One, there were a few transactions that I have done that were awaiting Wharf … that is GG .. that is Wharf One to repay money to Ultimate, which will in turn lend to GGPG so therefore all the transactions are borrowed by/from GGPG basically now”;

5.     on 30 October 2019, Mr So sent Mr Wong an email [PXW.001.001.4218] which attached a spreadsheet [PXW.001.001.4230] which identified $6,903,486.41 as “Total Terence”;

6.     on 31 October 2019, Mr Wong sent Mr So an email [PXW.001.001.5878] which responded to Mr So’s email of 30 October 2019 and said “[c]ould you try and complete the attached table for me?” and attached a table for Mr So to record the amounts advanced by Ultimate to GGPG and which GGPG then advanced to the related company, together with interest [PXW.001.001.5879];

7.     on 31 October 2019, Mr So sent an email to Mr Wong [PXW.001.001.5887] and attached a spreadsheet [PXW.001.001.5888] with a tab called “Loan Balance” which recorded a total balance of $7,011,718.

26    Third, and relatedly, the proposal is to amend [84A] where the amendment maintains the first component of the contention that contrary to the notices of demand Ultimate was not owed $10,801,334.72 and in place of the report of Daniel Quinn substitutes for it reliance on the particulars to [84B] which provides (and which is not the subject of any application to amend):

As at 29 November 2021 and up to and including 16 December 2021, Mr So, in his role as pleaded in paragraph 38(b) above, knew that any amount owed by GGPG to Ultimate under the purported loan deed was significantly less than $10,801,334.72.

Particulars

Mr So’s knowledge can be inferred from:

1.     the matters pleaded in paragraphs 9, 13 to 28, 29 to 48 and 50 to 83 above;

2.    the email from Mr Wong to Mr So dated 1 December 2021 [PXW.001.001.4998] attaching a draft security review [PXW.001.001.4999].

27    Fourth, new relief is sought concerning the 2019 conduct to replace the lost opportunity profit and creditor deficit claims. What is proposed at [150A] is:

Further, by reason of the breaches pleaded in paragraphs 115 to 119 above, the following Carver’s entities have suffered loss and damage:

(a)     Coorparoo Holdings in the sum of $288,000 obtained by the Receiver for the sale of 17 Cypress Street, Park Ridge, less the amount owing to SEL of $191,459.58 (as at January 2022);

(b)     PR 132 in the sum of $7,583,000 comprising:

(i)     $1,558,000 obtained by the Receiver for the sale of Terrace Lot 1;

(ii)     $2,375,000 obtained by the Receiver for the sale of Terrace Lot 2, less the amount owing to SEL as pleaded in paragraph 78(g)(v) above;

(iii)     $3,650,000 obtained by UIP as mortgagee in possession for the sale of the stage 7 land,

less its pro-rated share of the amount owing to Makro as pleaded in paragraph 92(a) above of $2,092,723.92;

(c)     GGPG Developments in the sum of $5,750,000 obtained by the Receiver for the sale of 125 PRR, less the amounts owing to Zank and SEL as pleaded in paragraph 78(g)(iii) and (iv) above;

(d)     PR 168 and PR 180 in the sum of $8,250,000 obtained by the Receiver and Ultimate as mortgagee in possession for the sale of the stage 6 land, less their pro-rated share of the amount owing to Makro as pleaded in paragraph 92(a) above of $2,276,799.73;

(e)     PR 94, PR 96 and Rochedale Holdings 1 in the sum of $16,050,000 obtained by UIP as mortgagee in possession for the sale of the stages 8-11 land, less their pro-rated share of the amount owing to Makro as pleaded in paragraph 92(a) above of $4,429,410.38.

Particulars

The pro-rated shares of the amount owing to Makro as pleaded in paragraph 92(a) above are calculated by applying the proportion of the value of the properties which were sold on behalf by PR 132, PR 168, PR 180, PR 94, PR 96 and Rochedale Holdings 1 as set out above to the amount owing to Makro of $8,798,934.02.

28    Pausing there, in submissions the Clancy parties characterise this as a claim for equitable compensation for the loss of the value of the land which was owned by the Carver’s Reach entities and was sold by the receiver and manager, less the amounts owing to the secured creditors.

29    Fifth, the 2021 loss is proposed to be recast by deleting the lost opportunity to derive a profit and creditor deficit claims, and by referring to new proposed claims for loss and damage as pleaded in the proposed pleadings [155A], [155B] and [155C], so that the claims are now limited at [155] to:

The 2021 loss is the value of the following:

(a)    the opportunity to derive a profit from the Development (the 2021 opportunity);

(b)     the additional interest, holding costs and other expenses incurred in the course of the Receivership which arose as a result of the imposition of the purported Ultimate loan, securities and mortgages;

Particulars

The best particulars which the applicants and the Carver’s entities can provide about these amounts prior to the completion of discovery and interlocutory steps are:

1.     additional costs, expenses and interest on the purported Ultimate loan of up to $6,514,692.62 13,044,572.58 from 29 November 2021 to 29 March 2023 15 September 2025 as set out in the loan schedule annexed to the Affidavit of Mr So filed 29 March 2023, and the loan schedule annexed to the So respondents’ particulars of [191] of the defence to the second further amended statement of claim filed 16 October 2025, plus any other amounts claimed;

2.     the costs of the receiverships conducted by the Receiver of up to $8,370,075 as set out in [21] and [24] of the Affidavit of Marcus Watters filed 24 September 2024 in proceeding QUD 462 of 2022, plus any other amounts claimed;

3.     the costs of refinancing the Makro loan as pleaded in subparagraphs 92(a)(ii), 92(a)(iii) and 92(b) of $1,079,521.58;

4.     the costs of the administrations and liquidations of GGPG and Park Ridge Development Management, Axis North, PR 94, Rochedale Holdings 1 and PR 96.

(c)     the deficit payable to creditors by the Carver’s entities following the sale of the Carver’s land;.

Particulars

The best particulars which can be given are that there will be an estimated shortfall having regard to the likely proceeds from the sale of the Carver’s land less the amounts owing to UIP and Ultimate and the costs of the receivership if the loans owed to UIP and Ultimate are payable in full or in part.

(d)     the loss and damage pleaded in paragraphs 155A to 155C below and suffered by Coorparoo Holdings, PR 132, PR 168, PR 180, GGPG Developments, PR 94, PR 96 and Rochedale Holdings 1 as there set out.

30    This claim is characterised in the submissions of the Clancy parties as one for equitable compensation for loss quantified by reference to a hypothetical winding up for the 2021 breaches. To understand that, the new pleadings proposed at [155A], [155B] and [155C] respectively provide:

155A.     Further to paragraph 155(d) above, had Mr So not breached his duties as pleaded in paragraphs 126 to 128 above, and having regard to the matters pleaded in paragraph 73(c) above, at any time from about July 2021 to 16 December 2021 the Carver’s entities and Axis North would have been wound up whether pursuant to section 461 of the Corporations Act or otherwise.

155B.    Had the Carver’s entities and Axis North been wound up, a liquidator appointed to those entities would have:

(a)     realised the Carver’s land at or about the amounts for which that land has been sold as pleaded in paragraphs 94, 94A, 95A, 105A and 105B above; 68

(b)     applied the proceeds from the sale of that land to discharge the liability to Makro of $8,798,934.02 as pleaded in paragraph 92(a) above;

(c)     applied the proceeds of sale from that land to discharge the liability to Zank of $2,400,000 as pleaded in paragraph 78(g)(iii) above;

(d)     applied the proceeds of sale from that land to discharge the liability to SEL of $3,221,895.68 as pleaded in paragraphs 78(g)(iv), 78(g)(v) and 150A(a) above,

leaving a surplus for those land holding entities.

155C.     The process pleaded in paragraph 155B above would have left a surplus in the winding up of:

(a)     Coorparoo Holdings in the sum of $288,000 obtained by the Receiver for the sale of 17 Cypress Street, Park Ridge, less the amount owing to SEL of $191,459.58 (as at January 2022);

(b)     PR 132 in the sum of $7,583,000 comprising:

(i)     $1,558,000 obtained by the Receiver for the sale of Terrace Lot 1;

(ii)     $2,375,000 obtained by the Receiver for the sale of Terrace Lot 2, less the amount owing to SEL as pleaded in paragraph 78(g)(v) above;

(iii)     $3,650,000 obtained by UIP as mortgagee in possession for the sale of the stage 7 land,

less its pro-rated share of the amount owing to Makro as pleaded in paragraph 92(a) above of $2,092,723.92;

(c)     GGPG Developments in the sum of $5,750,000 obtained by the Receiver for the sale of 125 PRR, less the amounts owing to Zank and SEL as pleaded in paragraph 78(g)(iii) and (iv) above;

(d)     PR 168 and PR 180 in the sum of $8,250,000 obtained by the Receiver and Ultimate as mortgagee in possession for the sale of the stage 6 land, less their pro-rated share of the amount owing to Makro as pleaded in paragraph 92(a) above of $2,276,799.73;

(e)     PR 94, PR 96 and Rochedale Holdings 1 in the sum of $16,050,000 obtained by UIP as mortgagee in possession for the sale of the stages 8-11 land, less their pro-rated share of the amount owing to Makro as pleaded in paragraph 92(a) above of $4,429,410.38.

Particulars

The pro-rated shares of the amount owing to Makro as pleaded in paragraph 92(a) above are as set out in paragraph 105A above.

31    Sixth, new relief is sought at [191] and [192] that certain of the Carver’s Reach entities, being those not yet in liquidation, be wound up on the just and equitable ground because of the management deadlock and the breakdown in mutual trust and confidence between Marc Clancy and Terence So.

32    Seventh, various amendments are proposed to correct cross-referencing and errors at [39c], [94], [145AC], [145AD], [145AE], [148M], [148O], [148Q], [150], [161] and [162]. These amendments are not controversial.

The So parties’ and the TM parties’ applications

33    The So parties’ application commences with a claim for relief, expressed in the form of various alternatives, that the derivative leave granted to the applicants be revoked pursuant to s 241, or alternatively ss 236 and 237 of the Corporations Act, r 39.05 of the Rules or in the inherent jurisdiction of the Court. As to the latter, this Court is created by statute and does not have inherent jurisdiction as distinct from incidental power that is necessary for the effective exercise of the statutory jurisdiction: Clarence City Council v Commonwealth [2020] FCAFC 134; (2020) 280 FCR 265 at [61]; Parsons v Martin (1984) 5 FCR 235 at 241. The application includes claims for relief that judgment be given against the Clancy parties by dismissal of the originating application, that the Clancy parties pay the costs of the proceeding on an indemnity (or if not on a party and party) basis and that the costs burden be met first from the money held as security for costs. In the alternative, and in the event that leave is granted to amend and derivative leave is not revoked, there is a claim for costs thrown away as a result of the amendments and the adjournment of the trial to be paid on an indemnity, or if not a party and party, basis with such costs to be payable forthwith and from the security for costs funds.

34    The TM parties’ application essentially mirrors the application of the So parties.

Order of resolution

Clancy parties’ application

35    Counsel agreed that I should first determine the Clancy parties’ application. I commence with the procedural history which is tortuous. What follows is not a comprehensive summary; rather it is informative only and limited to the extent relevant to the exercise of the discretions that arise. The factual matters are either common ground between the parties or comprise my findings of fact based on the various affidavits that were read upon the hearing of the applications and relevant evidence that was given when witnesses were cross-examined.

36    The Clancy parties rely on affidavits made by Benjamin Cohen dated 20, 25 and 30 November 2025, 1, 4 and 9 December 2025; Glen Cranny dated 20, 21 and 28 November 2025, Callan Lloyd dated 26 November 2025 and Gar Lum dated 27 November 2025. Mr Cohen and Mr Cranny were each cross-examined. The So parties rely on affidavits made by Rose Layther-Dixon dated 25 and 26 November 2025 and 2 December 2025. She was cross-examined. The TM parties rely on affidavits made by Drew Castley dated 25 November 2025 and Ewa Choliñska dated 24 November 2025. Neither was required for cross-examination.

37    This proceeding was commenced by originating application on 25 March 2022. At that time leave was sought to bring proceedings under ss 236 and 237 of the Corporations Act by the applicants in the name of the Carver’s Reach entities. Relief was also sought pursuant to s 233 that the Carver’s Reach entities purchase the Clancy party shareholdings at fair market value. A draft statement of claim was circulated on 2 June 2022 to outline the claims that would be brought by the Clancy parties if derivative leave was granted. That document was amended on 12 August 2022, to include the oral representation case relating to the meeting of 25 November 2019. A further version of the draft pleading was provided on 7 November 2022. It maintained the oral representation case and several contentions that Terence So owed fiduciary and Corporations Act ss 180, 181 and 182 obligations to the Carver’s Reach entities, that he acted contrary to his obligations in failing to maintain proper records as to the quantum of the Ultimate loan from time to time and by his 2019 and 2021 conduct.

38    Justice Derrington granted derivative leave to the applicants on 16 December 2022 for reasons published in CIP No 1. A matter that his Honour had regard to at [42] – [43], when considering the prospects of success, was the asserted conflict of interest of Terence So:

Whilst there is some superficial force in those submissions, when the evidence is analysed something more than a mere arguable case emerges. There was no question that, as a director of the operating companies, Mr So owed them statutory and fiduciary duties in the performance of his obligations which, in broad terms, were that he was to act in their interests in preference to his own. Although it was submitted that those duties were mollified by allegations that Mr Clancy had breached the duties which he owed to those companies, no authority was advanced for the proposition that such activity, if established, altered the nature and content of Mr So’s obligations. It is not immediately self-evident why a breach or an alleged breach of duty owed by one director to a company, relieves or minimises the obligations of another director.

It also did not appear to be in contest that Mr So was the controlling mind of Ultimate and was aware of its intentions in relation to the calling in of the Ultimate Advance and, indeed, the appointment of receivers. There is an argument that, at least at the point that Ultimate formed such an intention if not before, Mr So was in a position of conflict in relation to his obligations to GGPG and the operating companies on the one hand, and his and Ultimate’s interests on the other. On that basis, any omission of Mr So to inform Mr Clancy and or GGPG or the operating companies that refinancing was needed or even the omission to secure appropriate finance, may well have had the consequence that several of the onerous directors’ duties were breached.

39    His Honour also gave weight to the misleading conduct case at [15] and [49].

40    On 10 February 2023, the Clancy parties filed a further version of the statement of claim with redrafted allegations. They sought and were granted further derivative leave by Derrington J on 10 March 2023. An application by the Clancy parties for leave to amend, to include claims against Mr Wong, was granted by Derrington J on 5 September 2023. On that day his Honour also made comprehensive pre-trial case management orders and listed the proceeding for hearing with an estimate of four weeks to commence on 9 September 2024. His Honour vacated the trial date on 8 May 2024 because the Clancy parties had failed to comply with components of the pre-trial orders. His Honour made further pre-trial orders and listed the proceeding for trial to commence on 7 April 2025. On 31 January 2025, his Honour vacated that trial order and fixed the matter for hearing to commence on 2 June 2025. On 2 May 2025, the Clancy parties filed an application for leave to amend the statement of claim. This, on 15 May 2025, caused Derrington J to adjourn the trial to commence on 24 November 2025. His Honour did not then determine the application for leave to amend.

41    I granted the Clancy parties leave to file and serve a Second Further Amended Statement of Claim on 25 August 2025. The principal issue then in contention was whether leave should be granted to permit the Clancy parties to allege, based on the expert report of Daniel Quinn, that the Ultimate loan balance was not as contended by the So parties in October 2019.

42    In late August 2025, Marc Clancy became aware that officers of the Queensland Police Service wished to interview him regarding complaints of fraudulent conduct that had been made by Terence So. In September 2025, Marc Clancy engaged the specialist criminal law firm of Gilshenan & Luton, in particular Mr Glen Cranny, to act for him in relation to the complaints. Detective Senior Constable Renshaw sent an email to Gilshenan & Luton which outlined six matters of complaint characterised as “fraud, forge and utter” against Marc and Melissa Clancy. The second and third matters are unrelated to the facts of this proceeding. He noted Terence So as the complainant. The matters set out were:

(a)    7 August 2018: forgery of trust account receipts to the value of $300,000 concerning the sale of the property at 9 London Road Clayfield;

(b)    20 December 2018: forgery of an invoice for agent’s fees concerning the sale of two properties in Surfers Paradise in the amount of $371,250;

(c)    between April and August 2019: a redirection of a payment made by GGPG to a bank account controlled by Marc Clancy in the amount of $487,500; and

(d)    between December 2018 and 2019: the sale of a Ferrari motor vehicle for Terence So, whereby Marc Clancy falsely underreported the sale price by $375,000, which sum he then applied for his own purposes.

43    These matters correspond with contentions (amongst other matters) pleaded by the So parties in defence of this proceeding as amounting to breach by Marc Clancy of his fiduciary and statutory duties as an officer at [192] – [277] of the Defence to the Second Further Amended Statement of Claim filed on 19 September 2025. In the Reply pleading of the Clancy parties filed on 9 October 2025, not only are these allegations denied but various positive defences are pleaded in answer at [61] – [142]. Marc Clancy made an affidavit on 30 March 2025 (which has not been read) and which sets out the evidentiary basis for the denials and positive contentions in the Reply.

44    On 26 September 2025, Glen Cranny emailed Detective Renshaw in response to the proposal that his client be interviewed. He advised that Marc Clancy was “giving active consideration” to an interview, on the basis that “he considers there is much that could be clarified in respect of the allegations”. He suggested a meeting in advance of any interview which was agreed to. There was further correspondence, in the form of requests for documents and the meeting was delayed when Glen Cranny took a period of annual leave. Ultimately, they met on 20 November 2025. In his oral evidence, Glen Cranny said that he had formed the view not later than 20 November 2025, as the result of a telephone discussion with Detective Renshaw, that Marc Clancy would be charged with criminal offences. He was charged with 22 offences on 27 November 2025.

45    Between late August 2025 and 17 November 2025, the solicitors for the respective parties worked diligently to comply with various pre-trial orders concerning an agreed chronology of material events, a list of issues to be determined at trial, an index of common documents to be tendered by consent, a court book index, various objections to lay and expert evidence and the engagement of an external provider to conduct an electronic trial. Within that period, the solicitors for the Clancy parties did not advise the solicitors for the So parties or the TM parties that Marc Clancy had decided that he would not give evidence in this proceeding in order to preserve his privilege against self-incrimination. Nor was any notice given that there was then under consideration a proposal to make substantial amendments to the Second Further Amended Statement of Claim.

46    On 5 November 2025, the Clancy parties filed and served an outline of opening submissions and which set out all their arguments in support of the matters pleaded in the Second Further Amended Statement of Claim.

47    At approximately 4 pm on Thursday, 20 November 2025, being one business day before commencement of the trial on Monday, 24 November 2025, the Clancy parties served the interlocutory application for leave to amend. They also advised that they no longer intended to call any witnesses at the trial.

48    Inevitably, and without opposition, I vacated the trial when the matter was called on in Brisbane on 24 November 2025, and I made procedural orders for determination of the amendment application and any applications by the So or TM parties to revoke the grants of derivative leave.

49    Benjamin Cohen in his affidavit evidence of 20 November 2025, stated that leave to amend is sought “because of a police investigation into Mr Clancy arising from complaints made by Mr So to the Queensland Police Service in August 2024” and further:

Leave to make the amendments is sought to preserve Mr Clancy’s right to privilege against self-incrimination, while also balancing that need against the rights of the Carver’s entities and Axis North (for whom I also act via grants of derivative leave variously given in the course of this proceeding) to a fair and timely trial of the claims they make in this proceeding.

50    In his later affidavit of 9 December 2025, and in answer to a criticism that had earlier been made in submissions about the absence of direct evidence that Marc Clancy has decided not to give evidence in the proceeding and relatedly the absence of a causative link to the amendment application, Benjamin Cohen stated:

To the extent it was not clear by what I said at [6] of my 20 November affidavit, for the avoidance of doubt, I am informed by Mr Clancy, and believe, that he intends to preserve his right to claim privilege against self-incrimination and will not give evidence in this proceeding.

51    In cross-examination he was closely questioned as to when Marc Clancy first instructed him to that effect. He first answered that he assumed that to be the case based on communications between Detective Renshaw and Glen Cranny. When pressed further on when Marc Clancy first told him of his decision, he said: “Directly, last night”, being 9 December 2025. He then confirmed that at no earlier time did he ever have a conversation with Marc Clancy during which he was told that he declined to give evidence in this proceeding. He was then questioned as to when Marc Clancy gave instructions to make the amendment application. He accepted that when the instruction was given, Marc Clancy had not expressly informed him that he would not give evidence.

52    In closing submissions, Mr Couper KC for the So parties invites a finding that I should reject as the reason for the late amendment application the decision made by Marc Clancy not to give evidence. It was said that the justification is no more than an artificial construct in that it is inconceivable that an experienced solicitor would formulate the substantial amendment application without directly asking Marc Clancy whether he was prepared to give evidence in the proceeding. I reject that submission. Whilst the evidence in Benjamin Cohen’s affidavit of 20 November 2025 was not as fulsome as it might have been, I am satisfied that what occurred is that he made an assumption that because Marc Clancy was to be charged (or that it was highly likely that he would be charged) with relatively serious offences of fraud that overlap with some of the facts in issue in the proceeding, that he would in consequence invoke his privilege against self-incrimination and decline to give evidence. Whilst one might criticise Benjamin Cohen for not directly asking relevant questions of Marc Clancy before formulating the amendment application, Marc Clancy’s position was made clear upon the hearing of the amendment application. I find there is a direct link between the decision to invoke and to preserve Marc Clancy’s privilege against self-incrimination in the prosecution of the amendment application. This is not to say that there are no other matters that are relevant to my discretion, primarily the potential operation of s 128 of the Evidence Act 1995 (Cth), which I address later in these reasons.

53    I next address matters relevant to the exercise of the discretion to allow the amendments. The parties focused their arguments, conformably with AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175, on the following:

(a)    The timing of the application, delay and whether there is an adequate explanation for the delay;

(b)    The nature of the amendments, the explanation for recasting the case and whether the proposed pleading is adequate by disclosing the material facts to support the relief or is otherwise liable to be struck out;

(c)    Prejudice;

(d)    The effect on the Court, other litigants, the potential loss of public confidence and more generally the waste of public resources and the inefficiency caused by vacation of the trial; and

(e)    The consequences of the litigation choices of the Clancy parties.

54    Each counsel commenced with s 241 of the Corporations Act, read with the general power to permit amendments at rr 8.21 and 16.53 of the Rules and the overarching purpose at ss 37M and 37N of the FCA Act. Section 241 confers broad power on the Court to “make any orders, and give any directions, that it considers appropriate” in relation to proceedings brought with leave under ss 236 and 237. There is undoubted power to permit amendments to pleadings: Slea Pty Ltd v Connective Services Pty Ltd [2019] VSC 201 at [106] – [126]. In that case the court was not concerned with the exercise of the power at s 241 where the companies the subject of derivative leave were then in liquidation. As I recorded at the outset, the decision of the New South Wales Court of Appeal in Chahwan stands as authority that Part 2F.1A of the Corporations Act does not apply where a company the subject of a derivative leave application is in liquidation: [124] – [126], Tobias JA, Beazley and Bell AJA agreeing.

55    I did not receive submissions on the present applications about whether the ratio in Chahwan is confined to an application for derivative leave, as distinct from applications after a grant of leave. Chahwan concerned the correctness of the order of the primary judge who refused leave; holding the applicant was not acting in good faith within s 237(2)(b) and in any event a grant of leave was not in the best interests of the company: s 237(2)(c). The grant was sought to commence a proceeding in the name of Bycoon Pty Ltd (in liq).

56    It may be that the better view is that the general power at s 241 of the Corporations Act remains available where the liquidation of a company occurs after a grant of derivative leave pursuant to ss 236 and 237. Without the benefit of submissions on the point, I do not decide it as ultimately counsel did not submit that there is any material difference between the matters to be considered in exercise of the power to permit amendments at s 241 and the general powers available at ss 37M and 37N of the FCA Act and rr 8 and 16 of the Rules.

57    In the exercise of the discretion to permit amendments the objective is to achieve the result that best aligns with the due administration of justice in the proceeding by balancing the broad purposes of ensuring that the real question between the parties is identified and determined and the need to facilitate the just resolution of the disputes in this case according to law as quickly, inexpensively and efficiently as possible as required by the overarching purpose.

Delay

58    Much time has been expended by the parties in addressing the delay question. For the Clancy parties I am invited to find that Terence So as “a persistent complainant” is the cause of the very late application to amend. The factual basis for his complaint stems from matters of which he has allegedly been aware since 2019. Yet, the submission proceeds, he delayed making a complaint to the police until August 2024, after Marc Clancy’s affidavit evidence-in-chief had been served and when the trial was then seven months away. Detailed submissions were advanced by Mr Pomerenke for the Clancy parties to the effect that it should be concluded that Terence So deliberately timed his complaints and increased the intensity of his interactions with the police for the purpose of interfering with the administration of justice in this proceeding with the objective of achieving a determination of the Clancy parties’ claims otherwise than by a merit assessment at trial. The submission continued that his misconduct is so serious that I should make a prima facie finding of contempt. The submission rests on acceptance that Terence So exerted improper pressure for the purpose of deterring the Clancy parties from prosecuting their case to trial. A finding of subjective intent is unnecessary if steps were taken amounting to improper pressure and which tend to interfere with the due administration of justice. It is observed that the unexplained failure of Terence So to give evidence as to why he made and timed his complaints is relevant. For those submissions reliance is inter alia placed on Lane v Registrar of the Supreme Court of New South Wales [1981] HCA 35; (1981) 148 CLR 245 at 247; Harkianakas v Skalkos (1997) 42 NSWLR 22 at 28; and Gazal v Setiawan & Topaloglu [2014] NSWSC 1008.

59    I reject the submission. A finding of contempt is a serious matter. There is a procedure specified for contempt proceedings at Part 42 of the Rules. It has not been invoked. Rule 42.11 (applicable to all cases other than contempt in the face of the Court) requires an application for punishment for the alleged contempt to be made by interlocutory application in the proceeding. Rule 42.12 requires a statement of charge supported by an affidavit which sets out the evidence intended to be relied on. The alleged contemnor is entitled to the procedural fairness afforded by r 42.15: evidence, cross-examination and affidavits in answer. The procedure adopted by the Clancy parties deprives Terence So of these basic protections. This is quite unlike cases where the contempt is clear, such as non-compliance with an unambiguous order of the Court.

60    The furthest the evidence relied upon by the Clancy parties goes is that it establishes a temporal relationship between the timing and manner of the complaints made by Terence So to the police, the commencement of the investigation and, ultimately, the laying of charges against Marc Clancy. There has not been produced in evidence the complaint forms, but nonetheless there is evidence from Glen Cranny that on 27 November 2025, he attended with Marc Clancy at the Fortitude Valley police station at which time Marc Clancy did not participate in an interview and was formally charged with 22 offences and granted bail. These are indictable offences.

61    The evidence also supports the finding that in consequence Marc Clancy has determined that he will not be a witness in this proceeding to preserve his privilege against self-incrimination. That leads to the further finding that a reason for the lateness in the bringing of the application to amend is that it was not clear until late November 2025 that Marc Clancy was likely to be charged with fraud offences which overlapped with facts in issue in this proceeding. It also explains, in part, the reason for the extent of the amendments: that is to say, to the extent that the positive contentions as pleaded turn on the evidence of Marc Clancy.

62    However, it is not a full explanation for the extent of the amendments. Marc Clancy is not an applicant in this proceeding and Benjamin Cohen gave clear evidence that he is not the client but is funding the litigation. One can accept that Marc Clancy’s interests align with maintenance of his privilege against self-incrimination. They do not align with the interests of each of the companies that comprise the Clancy parties. There was considerable debate in the arguments concerning s 128 of the Evidence Act and why the self-incrimination issue was not earlier considered. As the So parties correctly observe the misconduct allegations were pleaded in their defence in April 2023. On 22 December 2023, the Clancy parties filed a reply to the defence, denied the allegations and pleaded a positive case in answer. Further allegations of misconduct were introduced by the So parties in October 2024, which again were responded to by the Clancy parties in the form of a reply on 23 October 2024. On 30 March 2025, an affidavit from Marc Clancy was filed which addressed these allegations (which, as noted above, has not been read). In none of this material was the question of self-incrimination raised. Putting aside any question of waiver (which I am not invited to determine on this application) the So parties submit that there is no explanation as to why Marc Clancy’s intended evidence on these topics may now be said to incriminate him when, until service of the amendment application, he was apparently willing to give that evidence “despite always being aware of the criminal nature of the allegations put by the So parties” and the consequent risk that a criminal investigation may ensue.

63    Further, the So parties submit that s 128 of the Evidence Act affords adequate protection for Marc Clancy. A forensic decision may be made not to read the contentious portions of his affidavit and, if the subject area is sought to be traversed in cross-examination, it is open to him to take the objection provided for at s 128(1). If the court determines that there are reasonable grounds for the objection, he may not be required to give the evidence unless section 128(4) applies. A certificate will be given if a witness willingly gives the evidence without being compelled to do so: s 128(3)(b)(i).

64    Mr Pomerenke responds to the effect that the submission overlooks that the privilege against self-incrimination is a cardinal principle of our system of justice: “a fundamental … bulwark of liberty”: Reid v Howard [1995] HCA 40; (1995) 152 CLR 1 at 11. As such the broad reductionist approach of the So parties cannot be accepted. In consequence, Marc Clancy “is entitled to avail himself to the fullest extent of the privilege against self-incrimination in this case by refusing to give evidence in the case at all, where the So parties have contended in defence that the matters the subject of the criminal complaints are directly relevant to whether the companies can make out breach and causation”. I accept that submission.

65    I also accept the further submission of Mr Pomerenke to the effect that the making of forensic decisions by a liquidator (after having served a subpoena on Marc Clancy to give evidence) as to which portions of his affidavits would be read has the tendency to cut across his privilege not to give evidence at all. Further, there are difficulties in accepting in the hearing of the amendment application that even if Marc Clancy was subpoenaed to give evidence, he could be compelled to answer questions relevant to the misconduct allegations made by the So parties pursuant to the procedure at s 128(4). I am quite unable to form any view of the likelihood of that procedure being implemented (and if so the likelihood of the grant of a certificate pursuant to s 128(6)) on the evidence as presented on the amendment application. I would be engaging in pure speculation if I expressed any views about that.

66    However, it is not simply Marc Clancy who will not now give evidence for the Clancy parties. The unambiguous position which they have adopted before me is that no lay or expert witness evidence is to be adduced, and reliance will be placed wholly on the contents of documents as admitted into evidence. The electronic Court file discloses that affidavits were filed by the Clancy parties covering lay evidence from David Whiteman (former director of development in the Group), Conghan Hu (a director of a financier which provided some funding to the Group), Richard Akero (a director of Makro), Hsiang-Lun Tseng (a property developer) and George Mitrokas (a business partner of Marc Clancy and a potential lender in December 2021). As to expert evidence, there are reports from Leo Mewing (town planner), Thomas Walton (valuer), John Lowry (quantity surveyor), Mathew Ashby (accounting) and Daniel Quinn (forensic accounting).

67    I infer that it was the intent of the Clancy parties to adduce evidence from each of these witnesses. Why the absence of Marc Clancy as a witness has the consequential effect that none of these persons will be called was not satisfactorily explained. In evidence Benjamin Cohen was cross-examined about whether Daniel Quinn’s expert evidence was dependent on the evidence of Marc Clancy. He could not answer the question. He declined to give the actual reason on the basis of legal professional privilege but then accepted that the Clancy parties do not draw a connection between the decision of Marc Clancy and the decision not to call Daniel Quinn. The decision not to call any of the other witnesses was not addressed at all. Clearly some of these witnesses could have given evidence in support of the lost opportunity profit claim, particularly Mr Whiteman. But, clearly also, Marc Clancy is a material witness in support of that claim.

68    However, the last point is not of significant weight on the amendment application once it is acknowledged that each of these witnesses would have given evidence relevant to the allegations that are now abandoned and which is not opposed by the So or the TM parties, subject to the question of costs.

69    The next question is whether the decision of Marc Clancy provides an explanation for the proposed amendments that seek to add to the pleading? That is, relevantly, paragraphs [49], [54A], [150A], [155], [155A] – [155C] and [191] – [192]. What is the explanation for not raising these matters earlier? Marc Clancy’s evidence was central to the factual foundation for the lost opportunity to continue with the Carver’s Reach subdivision to derive therefrom a significant profit. That is an explanation for deletion of the lost opportunity claim and the reformulation of the damage and damages claims at [150] and [150A]. It does not explain why Daniel Quinn could not be called to establish the quantum of the Ultimate loan (if any) as at 31 October 2019, when his report comprised a forensic analysis of business records and Benjamin Cohen’s evidence disavowed a connection between the decision not to rely on his report and Marc Clancy’s decision not to give evidence. His expert report dated 21 March 2025 in section 3 sets out the information that he relied on by reference to the annexures. He was engaged to:

Consider the payment said to comprise the Ultimate loan as 29 November 2019 (as recorded in the annexure) and ascertain which, if any, of those payments in fact represent loans advanced by the So parties or any of them (including Ultimate, Mr So and Mrs Wong and their family members) to any entity in the Group.

Please exclude all interest payments purportedly included in the annexure.

70    The annexure referred to comprises banking and business records. A supplementary brief, with additional banking and business records, was later provided. Daniel Quinn’s expert report makes no mention of the affidavit evidence of Marc Clancy as foundational material for his opinions.

71    Instead of placing reliance on the report of Daniel Quinn to make good the allegation at [49] that the balance of the Ultimate loan at 31 October 2019 was not $7,011,718, the Clancy parties now seek to rely on the particulars set out at [54A] to the effect that at the relevant time Terence So knew that any amount owed by GGPG (or any other company in the Group) to Ultimate “was significantly less” than $7,011,718. The Clancy parties particularise this contention by reference to spreadsheets prepared by Terence So “which purportedly” record the principal amounts owing under the Ultimate loan. That is a material departure from the case that had been formulated and the absence of Marc Clancy as a witness does not explain this amendment. However, balanced against that consideration is the fact that the pleading retains the particulars at sub paragraphs (2)-(7) of [54A], each of which refer to documents exchanged between Terence So and Mr Wong.

72    Dealing next with [150] and [150A], the abandonment of the lost opportunity profit claim is explicable in the absence of evidence from Marc Clancy. The proposed substitution amends the particulars of the extant additional interest and holding costs claims which are explicable by updated information. Paragraph [150A] is properly characterised as a recasting of the damages claim reflective of abandonment of the lost opportunity claim. That there was no earlier pleading of loss of the value of the respective land parcels is explicable by the fact that the lost opportunity to profit claim reflected the case that had been framed based in part on the evidence of Marc Clancy. It is understandable that, absent his evidence, the Clancy parties would seek to recast the damages claim based on the best available documentary evidence which is to hand. The proposal is an attempt to salvage the claim.

73    Finally, there is the new formulation of loss and damage arising from the 2021 conduct at [155] and [155A] – [155C]. The amendments proposed at [155] do not require explanation in that the claimed amounts for additional costs, expenses and interest reflect more recent information as disclosed in certain particulars in the defence of the So parties to the Second Further Amended Statement of Claim filed on 16 October 2025.

74    The effect of the amendments proposed at [155A] – [155C] is to introduce an entirely new claim. The contention is that if Terence So had not breached his fiduciary and statutory duties for the purpose of taking control of the Carver’s Reach development then, at any time between July 2021 and 16 December 2021, the Carver’s Reach entities would have been wound up on the just and equitable ground at s 461 of the Corporations Act. The facts relied on have been known to the Clancy parties for some time, as reflected in the content of their earlier pleadings. No explanation has been given in the evidence as to why the winding up alternative to the damages claim was not earlier pleaded as an alternative, save for the inference that once the lost opportunity profit claim was abandoned, then some form of additional claim was then given consideration. That is hardly a sufficient explanation.

75    On balance, whilst there are some deficiencies in the extent of the explanations offered by the Clancy parties for the lateness of the amendments, overall I am satisfied that an adequate explanation has been offered both for the delay and the failure to plead aspects of the amendments earlier save for the amendments proposed to [155A] – [155C].

Form and content of the proposed pleading

76    The next issue is the nature and content of the amendments. This invites inquiry as to the adequacy of the proposed pleadings and whether leave should be refused if it is concluded that the amendments would be liable to be struck out on any of the grounds at r 16.21 of the Rules. The So and TM parties make many submissions to the effect that the amendments suffer from fundamental defects.

77    First, they make the overall submission that the amendments should be refused because they are futile. For this they fasten on various submissions of Mr Pomerenke that the core of the case now sought to be made out rests on an actual conflict of duty by Terence So and which cannot be the subject of informed consent. As put in the written submissions for the Clancy parties by reference to Snell’s Equity (35th ed, Sweet & Maxwell, 2025) at [7-046]:

Even if a fiduciary has properly obtained informed consent to his or her double employment, and has not intentionally favoured the interests of one principal over those of the other, the fiduciary “must take care not to find himself in a position where there is an actual conflict of duty so that he cannot fulfil his obligations to one principal without failing in his obligations to the other”.

78    The authority relied on for that statement is Bristol and West Building Society v Mothew [1998] 1 Ch 1 at 19, Millett LJ.

79    The effect of the submissions of the So and TM parties is that once the positive allegations are deleted, the proposed amended case cannot succeed because that principle is not correct. Informed consent is an answer, and the proposed pleading makes no attempt to grapple with it. Amongst other cases reliance is placed on Pilmer v Duke Group Ltd (in liq) [2001] HCA 31; (2001) 207 CLR 165 at [78] – [79]; Howard v Federal Commissioner of Taxation [2014] HCA 21; (2014) 253 CLR 83 at [59] and R v Byrnes [1995] HCA 1; (1995) 183 CLR 501 at 516 – 517.

80    The arguments for and against were canvassed extensively in written and oral submissions. One submission in answer made by Mr Pomerenke is that informed consent is no answer to the statutory breach of duty claims alleged against Terence So. Another is that the So parties carry the onus of establishing informed consent.

81    The submissions raise difficult questions that are not suitable for resolution on the amendment application. In the course of the argument, Mr Couper for the So parties accepted that there is a serious question to be tried on this issue. Mr Thompson KC for the TM parties adopted the submissions of Mr Couper.

82    Second, it is submitted that paragraphs [49] and [54A] fail to plead the necessary facts to establish the actual balance of the Ultimate loan at 31 October 2019. On the submission it is insufficient to contend that Ultimate “was not owed” $7,011,718 by GGPG without specifying what is contended as the balance due. Similarly, the pleading is defective in contending that the debt was “significantly less” than that sum, by reference to annexures and spreadsheets compiled by Terence So and which are said to be reflective of his knowledge as pleaded at [54A]. A further submission is put that the allegations have no prospect of success in that GGPG acknowledged the debt upon execution of the loan deed.

83    Mr Pomerenke answers the submissions in two ways. If the Clancy parties are correct in their formulation of the actual conflict rule, then the So parties bear the onus of establishing that Terence So provided Marc Clancy with an accurate statement of the true amount of the debt, and the basis for the calculation, as a component of his insistence that the Ultimate loan be documented and secured. The other is that on a careful consideration of the particulars at [54A], there is “ample support” for the contention that $7,011,718 was not owed to Ultimate as at 31 October 2019. That is, the spreadsheet annexure to the loan deed includes an equity contribution by the So parties of $1,015,430, which was then converted to a debt, the spreadsheet itself contains an arithmetical error and, across each of the spreadsheets particularised, the case is that Terence So was unable to calculate a consistent balance for the amount owing.

84    In my view, the pleading discloses the material facts to support the contention that the loan balance was incorrectly calculated by Terence So and stated to Marc Clancy before the loan deed was signed. This is not the occasion to make findings about the relative weight of the evidence. Of itself, the arithmetical error contention discloses a material fact that may lead to the conclusion that the loan balance was overstated. And, if the Clancy parties are correct in their submissions about the effect of the actual conflict rule, with the consequence that the So parties bear the onus of establishing fully informed consent (if indeed that is an answer), the pleading discloses a sufficient level of material fact to make good that aspect of the claim.

85    Moreover, and more to the point, of the multiple forms of relief that are sought, the Clancy parties have consistently sought an account for the benefits obtained by reason of the loan deed and associated securities: Third Further Amended Originating Process at [7]; Second Further Amended Statement of Claim (prayer for relief) at [7]. Those claims are maintained on the amendment application. An account in equity is a two-step process. An applicant begins by establishing that a respondent is an accounting party. Thereafter, the respondent is obliged to bring in a verified account that may be the subject of further inquiry and objection before the amount to be accounted for is determined: Henley Constructions Pty Ltd v Henley Arch Pty Ltd [2023] FCAFC 62; (2023) 297 FCR 353 at [281] – [282]. That is a reason why an applicant is generally not obliged to plead the amount to be accounted for: Augustinus v Nerinckx (1880) 16 Ch D 13; Blackie v Osmaston (1885) 28 Ch D 119. The proposed amendments disclose an arguable basis that if the breach of fiduciary duty is made out on the 2019 conduct, then the account must commence with a statement of what was owing to Ultimate on 31 October 2019.

86    Third, the submission is that causation is defectively pleaded at [150] and [150A]. In summary, the pleading assumes (and fails to grapple with) the proposition that Ultimate would not have called in the balance of the loan in 2019, absent the requirement that it be documented and supported by security. The effect of the pleading at [149] and [150] is that by reason of the various breaches of fiduciary and statutory duties of Terence So as pleaded at [106] – [119], the Carver’s Reach entities suffered damage, being the 2019 loss. That loss is contended to be the value of the additional interest and holding costs and other expenses incurred in the course of the receivership “which arose as a result of the imposition of the purported Ultimate loan securities and mortgages”. The So parties submit that there is absent from the pleading a fundamental material fact being that “Ultimate would have continued, or was somehow obligated to continue, to provide funding to the Group from November 2019 onwards until July to December 2021, where it had an undocumented and unsecured loan”.

87    This is characterised as a “critical flaw” in the alleged breach of duty case in that there is now no plea that the Ultimate loan would not have been called in or could have been refinanced in 2019. Accordingly, there is no prospect that the Clancy parties will be able to establish the key contention at [53] that it was in the best interests of the Carver’s Reach entities that they continued to have access to the Ultimate facility on the existing terms. A further problem is that the pleading assumes that the Carver’s Reach development would have continued and the land sales would have been achieved in the ordinary course of business. There is no pleading to the effect that Ultimate was required to continue financing, that the repayments to Makro would have been met in a timely way or that additional external funding would have been secured.

88    The Clancy parties answer these objections with the submission that the complaint misunderstands the case in that it erroneously assumes that the damage suffered proceeds “from a counterfactual that the Ultimate documents would not have been entered into in November 2019”. That is not, how the case is put. Two matters are relied on. The first submission, which addresses the 2021 loss, is:

That loss is not claimed as the consequence of the 2019 conduct and does not depend on a hypothetical counterfactual running from November 2019. Rather, it starts from the premise that the Ultimate loan was entered into and it is pleaded in the alternative to the 2019 loss (proposed 3FASOC at [154]) and concerns the 2021 conduct. That conduct is premised on the fact that the Ultimate documents were entered into and that Mr So (as in fact occurred) caused Ultimate to enforce these documents in breach of duty.

89    Thus, as the submission runs, there is no silent premise that the Ultimate funding would have continued. Rather: “the loss is the consequence of Mr So acting, contrary to his duties, in enforcing the Ultimate loan without giving notice of his concerns about Mr Clancy or the opportunity to refinance that loan before he did so”.

90    The second submission focuses on the 2019 loss. The claim framed is for an award of equitable compensation to require restitution of the estate taken from the Carver’s Reach entities in breach of duty. The relevant estate was lost when the securities were granted in the form of a charge. That is contended to be a disposition of company property: Bell Group Ltd (in liq) v Westpac Banking Corporation (No 10) (2009) 39 WAR 1 at [9396]. That reference comprises a tentative expression by Owen J that if he was incorrect in his conclusions about ratification of breach of director duties, nonetheless:

[R]atification is not available where it would constitute a misappropriation of company resources: Hurley v BGH Nominees Pty Ltd (1982) 31 SASR 250. It is not entirely clear what “misappropriation” means in this context. But it seems to me that the creation and disposal of security interests over the assets of the company (brought about in breach of duty) would be characterised as misappropriation.

91    On that basis, the measure of damage is assessed as the loss in value of the property expropriated. Mr Couper criticises the submissions in reliance on this reasoning as taking the passage out of context. That may be so, and there may be other arguments that the misappropriation in that case is not to be equated with the “stripping out” (see the submission below) of the assets in this case, but in my view these are matters to be resolved at the trial and do not support the defective pleadings argument.

92    Further elaboration was provided in oral argument. Mr Pomerenke submits that in equity once a breach of fiduciary duty is established, it is sufficient for the applicant to identify one but for causal link and there is no obligation to negate other causes. For that proposition, reliance is placed on Ancient Order of Foresters in Victoria Friendly Society Ltd v Lifeplan Australia Friendly Society Ltd [2018] HCA 43; (2018) 265 CLR 1 at [88] – [90] (Gageler J) and GM & AM Pearce & Co Pty Ltd v Australian Tallow Producers [2005] VSCA 113 at [71] – [72]. From those propositions, the submission is that once an applicant establishes a causal link, the onus shifts to the defendant: “to establish that it is inequitable to order the defendant to account for the whole of the identified benefit or gain”.

93    In oral submissions, Mr Pomerenke disavowed that this is a Brickenden argument (Brickenden v London Loan and Savings Company [1934] 3 DLR 465), but his answer was a qualified one: “It’s not quite Brickenden, but it is causation in equity, which is generous to a plaintiff, and not generous to a defaulting fiduciary”. That proposition was then taken further to the effect that the loss to the Carver’s Reach entities occurred by “stripping out the value of the land”, which does not invite inquiry into further counterfactuals.

94    Self-evidently, the submissions of the parties raise complex issues. There is an argument that if the various breaches of fiduciary duty by Terence So as pleaded are established and resulted in the grant of valuable security interests in the Carver’s Reach land, then a causal link will be established. The outcome was that Ultimate went from being an unsecured lender with the right to make a demand for repayment (the demand may have been made at any time because there was no agreed loan term) and then to commence a proceeding in debt if the demand was not met. Assuming judgment was then obtained it would have been open to Ultimate to apply for a winding up of each of the Carver’s Reach entities to secure the appointment of a liquidator to sell the land, subject to payment of the debts owed to priority secured creditors. A consequence of the 2019 transactions was that Ultimate was placed in the position of a secured creditor (for all past and future debt) with the right to immediately appoint a receiver and manager if a demand for repayment was not met.

95    On one view the argument finds support in the analysis of Gageler J in Foresters at [88] – [95], particularly:

A causal connection between a fiduciary's breach of fiduciary obligation and a benefit or gain sufficient for the fiduciary or knowing participant to be liable to the equitable remedy of account will exist if the benefit or gain to the fiduciary or knowing participant would not have been obtained "but for" the breach, in the same way as a causal connection sufficient for the fiduciary to be liable to the equitable remedy of compensation will exist if a loss to the person to whom the fiduciary obligation is owed would not have been sustained but for the breach. Because the concern of equity is to vindicate the equitable obligation that has been breached, the "but for" connection will be sufficient even though other contributing causes might be in play…

Obviously enough, as with any other question of causation in equity, the causal connection between a fiduciary's breach of fiduciary obligation and a benefit or gain must be judged using common sense and "with the full benefit of hindsight". And as with other questions of causation in equity, the inquiry into causation is not to be constrained by normative limitations imported from the common law. To introduce those limitations would risk confusing distinct legal policies underlying distinct bases of legal liability and limiting equity's capacity to mould equitable relief to the circumstances of the individual case.

…

The reasoning in Warman makes explicit that where there is shown to exist a causal connection between a fiduciary's breach of fiduciary obligation and a benefit or gain to the fiduciary or knowing participant, the onus shifts to the defendant to establish that it is inequitable to order that the defendant account for the value of the whole of the identified benefit or gain. The shifting of onus is explicable in part, but only in part, as putting the burden of proof of contested questions of fact on a party who is a proven wrongdoer. The burden on the defendant is not just evidentiary; more fundamentally, it is persuasive. The obligation of the defendant, imposed as an incident of "the fiduciary relation itself", is to "justify" the "private advantage" that has been obtained.

96    It is important not to express views about the potential application of those principles at this stage. What is apparent is that the casting of the proposed causation pleading arguably supports relief in equity, depending on establishment of the breaches as pleaded.

97    The next issue is whether the pleading omits material facts to the extent that it relies on the statutory duties of Terence So at ss 181, 182 and 183 of the Corporations Act? The requirement at s 1317H of the Corporations Act is that compensation may be ordered if damage results from contravention of a civil remedy provision. Mr Pomerenke references the decision of Edelman J in Agricultural Land Management v Jackson (No 2) [2014] WASC 102; (2014) 48 WAR 1 for the proposition that no different causation principle applies. In that case his Honour distinguished between substitutive and reparative compensation by reference to the academic analysis of C Mitchell and S Elliott (Mitchell C, “Equitable Compensation for Breach of Fiduciary Duty” (2013) 66 CLP 307; Elliott S, “Compensation Claims against Trustees”, (DPhil thesis, University of Oxford, 2002) as follows at [349]:

Dr Elliott, whose writing has shone light and brought much clarity to this area of law, has suggested the use of the labels “substitutive compensation” and “reparative compensation” to differentiate the two types of claim. The former, based on the common account, describes a claim for the substituted value of the asset dissipated without authority: it demands that the trustee perform his or her duty to maintain the assets or fund. The latter, based on the account on the basis of wilful default, describes a claim for reparation for the loss suffered by breach of duty.

98    Having drawn the distinction, his Honour addressed the causation principles applicable to relief pursuant to s 1317H of the Corporations Act at [432] – [452] concluding at [452]:

The application of an analogy with equitable compensation reaches the same conclusion; as explained above, reparative compensation for a breach of fiduciary duty of this type should involve a negative 'but for' criterion. Although Giles JA warned against the application of equitable analogies to s 1317H, it is hard to see why analogies cannot be drawn with the approach to causation taken to breaches of near-identical duties in equity. As I have explained, the meaning of causation is intimately connected with the character of the duty breached. Section 1317H provides remedies for provisions many of which concern breaches of duties owed by directors. Those duties were historically recognised only in the Court of Chancery. Perhaps for this reason, Lee AJA observed in Westpac Banking Corporation v Bell Group Ltd (in liq) (No 3) that it “may be thought that the words 'as a result of' or 'resulted from' imported the test applied in equity for linking a breach of duty in equity to loss or damage suffered'.

99    Mr Thompson for the TM parties submits, by reference to the anterior reasoning of Edelman J at [376] – [384] that neither form of compensation is available to the Carver’s Reach entities because it cannot be denied that after the loan deed was executed, Ultimate advanced further substantial sums (in the order of a million dollars) with the consequence that absent disgorgement of the benefit, there can be no restoration of the value of the interest in the Carver’s Reach land said to have been expropriated by the grant of the securities. The failure to plead a counterfactual, incorporating disgorgement, is a fatal omission from the proposed pleading.

100    Mr Pomerenke answers that point quite briefly. In Agricultural no recission claim was made: [377]. In this case, components of the relief claimed include declarations that the Ultimate loan and security documents are invalid and unenforceable together with ancillary relief to give effect to declarations of that type. If relief of that character is granted, it may be conditional on effecting restitution of the benefits received pursuant to the impugned transactions: Spence v Crawford [1939] 3 All ER 271. The High Court (Dixon CJ, Webb, Kitto and Taylor JJ) in Alati v Kruger (1955) 94 CLR 216 at 223-224 cited Spence in the course of stating the equitable principle as follows:

If the case had to be decided according to the principles of the common law, it might have been argued that at the date when the respondent issued his writ he was not entitled to rescind the purchase, because he was not then in a position to return to the appellant in specie that which he had received under the contract, in the same plight as that in which he had received it. But it is necessary here to apply the doctrines of equity, and equity has always regarded as valid the disaffirmance of a contract induced by fraud even though precise restitutio in integrum is not possible, if the situation is such that, by the exercise of its powers, including the power to take accounts of profits and to direct inquiries as to allowances proper to be made for deterioration, it can do what is practically just between the parties, and by so doing restore them substantially to the status quo.

(citations omitted)

101    Mr Pomerenke continues his submission to the effect that it is a matter for the So and TM parties to plead that restitution cannot be effected in defence of the claims. That submission is supported by the speech of Lord Wright in Spence at 389:

The rule is stated as requiring the restoration of both parties to the status quo ante, but it is generally the defendant who complains that restitution is impossible.

102    This summary of the competing submissions makes clear that there is no proper basis to conclude on the amendment application that the form of the causation pleading proposed by the Clancy parties is defective in that it fails to plead all the material facts necessary to obtain the relief sought or is otherwise embarrassing. There are arguments for and against the way in which the Clancy parties seek to recast their case. Resolution of the arguments is a matter to be determined at trial, and not in a summary way upon this application.

103    That leaves for consideration the fourth substantive complaint to the proposed causation pleading at [155A] – [155C]. In summary the contention sought to be made out is that if Terence So had not breached his fiduciary and statutory duties at any time between July and December 2021 then, by reason of the view that he had formed in June 2021 that he could not trust Marc Clancy and no longer wished to be in business with him (as pleaded at [73](c)), the Carver’s Reach entities would have been wound up pursuant to s 461 of the Corporations Act with the consequence that the liquidator would have realised the Carver’s Reach land “at about” the prices achieved by the receiver and manager with the consequence that there would have been a surplus in the winding up of the various corporations in the amounts pleaded at [155C].

104    The So and TM parties are correct to submit that the proposed pleading is wholly defective and it will not be allowed. There is a failure to plead the material facts in support of the contention that the Carver’s Reach entities would have been wound up. Without wishing to be exhaustive, there is no plea about who would have made the winding up application, when and on what grounds. There is no attempt to address the evidence that would have been relied on. There is no attempt to explain how a judge would have exercised the discretion to make the order on the just and equitable ground. Without conceding the point, Mr Pomerenke in oral submissions accepted that material facts of that type have not been pleaded and that this proposed counterfactual is at odds with the secret strategy of Terence So, which was to strip the assets out of the companies. He at least conceded that these paragraphs are not material to the 2019 conduct case. Leave will not be granted to amend by including these paragraphs.

105    The balance of the proposed amendments are not objected to.

Prejudice

106    The So parties do not identify specific prejudice if the amendments are granted. They reference the inherent prejudice which flows from substantive late amendments and the significant cost consequences of a favourable exercise of the discretion. The TM parties adopt the So parties’ submission.

107    The general matters of prejudice do not weigh against the exercise of the discretion. The fact is that by permitting the Clancy parties to abandon large aspects of the claim, the likely length of trial has been considerably reduced from six weeks to less than two weeks. And the trial date was lost when the proceeding was adjourned without objection to receive evidence and submissions on the amendment and revocation of derivative leave applications. The cost consequences can be addressed by the making of appropriate costs orders.

General effect

108    It is a matter of considerable concern that the amendments were formulated at a very late stage and are extensive. The maintenance of public confidence in the administration of justice by this Court is a fundamental premise of the overarching purpose of civil practice and procedure in the Court. The resources of the Court have been wasted by the time and expense of travelling to Brisbane only to adjourn the trial on the first day and then by the need to conduct an extensive interlocutory hearing in this matter and in QUD 462 of 2022. Balanced against those considerations is the fact that I have accepted that there is an explanation for the making of the amendment application at a very late stage, caused by the decision of Marc Clancy to preserve his fundamental privilege against self-incrimination.

109    The Clancy parties contend that any loss of confidence is due to the conduct of Terence So, and the late timing of his persistent complaints to the police. I do not find it necessary to resolve that submission, because the loss of public confidence and waste of court resources considerations are of marginal weight in the context of this proceeding.

Litigation choices

110    It follows from my findings on the first issue, that the Clancy parties have made the forensic decision to abandon a large component of the claims because Marc Clancy will not give evidence. That is his personal decision, and one taken to preserve his right to maintain his privilege against self-incrimination. This is not a case of a tactical litigation choice made by the Clancy parties at a late stage where the corporate entities could control his decision with the consequence that they must accept responsibility for their litigation choice. The amendments proposed may fairly be characterised as salvaging what is perceived to be left based on a documentary case. That is understandable. The contended loss as revised is still substantial: in the order of $35 million. The unchallenged evidence of Benjamin Cohen is that on a solicitor client basis the total costs funded by Marc Clancy to 30 November 2025 on this matter and QUD 462 of 2022 exceed $9.7 million. These considerations favour allowing the amendments.

Overall assessment of the amendment application

111    The economic impact of the proposed amendments is to substantially reduce the scope of the claims from between approximately $60 to $65 million to no more than approximately $35 million. All parties have devoted very substantial resources and time to the proceeding. There is time available in my diary to resume the trial in May 2026. In my overall assessment, on a careful balancing of the matters that I have set out, I have determined that leave to amend should be granted to the Clancy parties in the form of the draft Fourth Further Amended Originating Process and draft Third Further Amended Statement of Claim as attached to the interlocutory application filed 20 November 2025, save for the inclusion of paragraphs [155A] – [155C] and [191] – [192] to the draft statement of claim.

Should derivative leave be revoked?

112    There is broad agreement as to the principles to be applied. It was accepted that an order granting derivative leave pursuant to s 237 of the Corporations Act is interlocutory: McEvoy v Caplan [2010] NSWCA 115; (2010) 78 ACSR 167 at [4]. The parties also accepted that general principles that have been identified as relevant to revocation or variation of interlocutory orders are relevant. Indeed, that is how White J proceeded in considering an application to revoke a grant of derivative leave in Ragless v IPA holdings Pty Ltd (in liq) [2012] SASC 203; (2012) 91 ACSR 560.

113    Certain of the Carver’s Reach entities are now in liquidation. I have noted the decision in Chahwan that Part 2F.1A of the Corporations Act does not apply to companies in liquidation. Section 241 is supervisory in nature, permitting the making of any orders considered appropriate in relation to a proceeding brought by leave. There is no doubt that it is a power available to the extent that some of the Carver’s Reach entities are not in liquidation. The power is to be exercised in the best interests of the corporations. Noting that I have not resolved where the power remains available with respect to the Carver’s Reach entities now in liquidation, no submissions were made to the effect that different considerations arise where the source of the power to revoke a grant of derivative leave is the FCA Act, the Rules or the implied power of the Court to regulate proceedings commenced pursuant to a grant of derivative leave.

114    Further, the parties correctly accepted that this Court has implied power in the exercise of its statutory jurisdiction in the proceeding to authorise the applicants to bring and continue the proceeding in the name and for the benefit of the Carver’s Reach entities: Smart Company Pty Ltd (in liq) v Clipsal Australia Pty Ltd [2011] FCA 35 at [42] – [43], Lander J; Secretary, Department of Health and Aged Care v Prefixx Pty Ltd [2024] FCA 153 at [13], Perry J. In my view the parties were correct to proceed on the basis that the matters set out at s 237 of the Corporations Act are relevant considerations in the exercise of the implied power and therefore are relevant to whether the interlocutory orders of Derrington J should be set aside. They are not, however, exhaustive. In considering the inherent jurisdiction of the Supreme Court of New South Wales to permit a member or creditor to bring proceedings in the name of a company in liquidation, Barrett J in Carpenter v Pioneer Park Pty Ltd [2008] NSWSC 551; (2008) 71 NSWLR 577 extensively essayed relevant case law to identify three main criteria to be applied at [34]:

The decided cases thus cause attention to be focused on three main matters when the court is invited to exercise its discretion upon an application such as the present:

1.     The question whether the proceedings proposed to be pursued have some solid foundation, in that they exhibit such a degree of merit as to be neither vexatious nor oppressive and to present reasonable prospects of success.

2.     The attitude of the liquidator to the question whether the proceedings should be pursued.

3.     The question whether “practical considerations support the initiation of the proceedings”, with particular reference to financial protection of the liquidator and the estate of the company by means of indemnity and, if indicated, security.

115    The So and TM parties contend that derivative leave should be revoked for multiple reasons. In summary, it is not in the best interests of the Carver’s Reach entities to continue the grants of derivative leave because:

(a)    the claims as now proposed significantly depart from the claims as formulated when derivative leave was sought and granted by Derrington J and do not have a sufficient prospect of success;

(b)    the best interests of Marc Clancy do not align with the best interests of the Carver’s Reach entities and there is now a conflict of interests. Relatedly, Marc Clancy is not acting in good faith;

(c)    it is not in the best interests of the Carver’s Reach entities to continue the proceeding where it cannot be demonstrated that there is a prospect of significant recovery;

(d)    no indemnity has been offered for the new case; and

(e)    some of the Carver’s Reach entities are in liquidation and there is no evidence as to whether the liquidators have been consulted about the new case and, if so, whether they have formed the view that there is a reasonable foundation for the claims having regard to the likely recovery and Ultimate distribution to creditors.

116    There is no dispute that the So parties and the TM parties carry the onus of persuading the Court that derivative leave should be revoked: Ragless at [12]. I address the contentions in the above order.

Material change and prospects of success

117    It cannot be gainsaid that the amendments are a material departure from how the case was framed when Derrington J considered the derivative leave applications. The fundamental departures comprise abandonment of the loan representation case and the lost opportunity to continue with the development and to derive substantial profits together with the oppressive conduct claims. In combination with the decision of Marc Clancy not to give evidence, the Clancy panties will not adduce any of the intended lay or expert witness evidence (comprising approximately 20 affidavits) and intend to conduct the trial based on business records and such cross-examination as may be open depending upon forensic decisions made by the So and TM parties to adduce oral evidence from witnesses.

118    When Derrington J initially granted derivative leave in 2022, his Honour concluded that the proposed claims would be in the best interests of the Carver’s Reach entities based on a high level assessment of the misrepresentation and breach of fiduciary and statutory duty contentions as formulated in a draft statement of claim: CIP No 1 at [22] and [41] – [50]. In my view, the question now does not involve a retrospective assessment of his Honour’s analysis. Rather, there are two issues. One, whether the material variations from the substance of the claims as pleaded in the Third Further Amended Originating Process and Second Further Amended Statement of Claim are such that it is now not in the best interests of the companies to continue the grant of derivative leave. The other, whether the claims as amended have sufficient prospects of success so that it may also be concluded that it remains in the best interests of the companies for derivative leave to continue.

119    Necessarily the two issues are interrelated. In determining to permit the amendments, I have concluded that the claims disclose a reasonable prospect of success if the material facts as pleaded are established. The threshold for that conclusion on a derivative leave application is low – whether there is a serious question to be tried: In the matter of Gladstone Pacific Nickel Ltd [2011] NSWSC 1235; (2011) 86 ACSR 432 at [56], Ball J; Oates v Consolidated Capital Services Ltd [2009] NSWCA 183; (2009) 76 NSWLR 69 at [164]. Whilst it is correct that the amendments materially depart from aspects of the case, what must not be overlooked is that the central allegations of breach of fiduciary and statutory duties by Terence So in 2019 and 2021 remain. Despite abandonment of the misrepresentation, lost opportunity and oppression claims, there remains a substantial claim for equitable and statutory compensation and for an account arising from the core conflict case. The departures are not so radical as to justify the conclusion that continued prosecution of the amended claims is not in the best interests of the Carver’s Reach entities.

120    Also, a consequence of acceptance of the revocation submissions is that the So and TM parties seek summary judgment by dismissal of the proceeding with costs. Starkly, that it is apparently in the best interests of the Carver’s reach entities that all prospect of recovery be extinguished without inquiry on the merits. I do not accept that is in the best interests of the Carver’s Reach entities in circumstances where the applicants have provided a full costs indemnity supported with substantial security.

Alignment of interests

121    This matter is well articulated in the submissions of Mr Thompson for the TM parties. As put in the written case:

There was some uncertainty in the authorities about whether, and the extent to which, particular characteristics of the applicant for derivative leave may be taken into account: see for example Maher v Honeysett & Maher Electrical Contractors Pty Ltd [2005] NSWSC 859 per Brereton J at [42] to [47]. However, the requirement that the proceeding be in the best interests of the company requires consideration of “all relevant circumstances”: Huang v Wang (2016) 114 ACSR 586 per Bathurst CJ, with whom McColl JA and Barrett AJA agreed, at [57]. There is ample authority to the effect that the identity and circumstances of the applicant may be relevant, and indeed determinative, where the particular applicant is unsuited to bring the proceeding including because of a conflict between the company’s and the applicant’s interests: Chahwan v Euphoric [2008] NSWCA 52, (2008) ALR 780 per Tobias JA, with whom Beazley and Bell JJA agreed, at [88] to [94]; Transmetro Corporation Ltd v Kol Tov Pty Ltd (2009) 72 ACSR 582 per Barrett J at [15] to [27]; Power v Ekstein (2010) 77 ACSR 302 per Austin J at [107]; Robash Pty Ltd v Gladstone Pacific Nickel Pty Ltd (2011) 86 ACSR 432 per Ball J at [57]; Smart Company Pty Ltd (in liq) v Clipsal Australia Pty Ltd (2011) 82 ACSR 154 per Lander J at [45] to [50] (in the context of the inherent jurisdiction to permit derivative proceedings for a company in liquidation); Mahmood v Abdul Wahid and Sons Pty Ltd [2021] FCA 535 per White J at [15].

122    Marc Clancy is not the applicant but is the individual who gives instructions to the Clancy parties’ solicitor and he is the funder. He is the sole director of the first and second applicants and his wife is a director of the third. He is a director of the Carver’s Reach entities. He is not the person to whom derivative leave was granted by Derrington J; the applicants are the entities with the benefit of derivative leave. It is the applicants who gave the undertaking to the Court to indemnify the Carver’s Reach entities against any adverse costs orders. It is the applicants who have provided security for costs as ordered from time to time. In reality, the costs burden has been assumed by Marc Clancy as the funder.

123    Marc Clancy was to give substantial and important evidence in support of the Clancy parties’ claims. His decision to preserve his personal privilege against self-incrimination is the cause of the late amendments. The Carver’s Reach entities have suffered prejudice by his unavailability, not only in the narrowing of the scope of the claim for damages but also in the substantial waste of resources and costs in preparing for the trial on the claims as they were. The lost opportunity claim has been abandoned. The decision not to call any witnesses in support of the narrowed claims may ultimately prove to be forensically disadvantageous.

124    Thus the centrality of Marc Clancy’s role underscores the submissions of the So parties (adopted by the TM parties) that: “the real problem created by the Clancy parties’ position being dictated by Mr Clancy’s personal interests, rather than the best interests of the Carver’s entities”. If, for example, control of the proceeding rested with someone else (a liquidator is exampled), the likelihood is that Marc Clancy would be subpoenaed to give evidence.

125    It is acknowledged by the Clancy parties that Marc Clancy is in a position of conflict. His instruction to make the amendment application is reflective of his choice to protect and preserve his interests. I have addressed the difficulties attendant with the suggestion that Marc Clancy could be subpoenaed to give evidence. For those reasons I do not accept the submission of the So parties that I should reject the explanation of the Clancy parties for the late reformulation of the case.

126    It is distracting to focus on the personal interests of Marc Clancy. The inquiry is whether the proceeding should continue to be prosecuted by the applicants in the best interests of the Carver’s Reach entities. Marc Clancy’s decision created a significant problem for the applicants at a very late stage but is not one for which they are responsible. The inquiry is broader than a comparison of Marc Clancy’s interests with those of the Carver’s Reach entities. In Gladstone, Ball J explained why at [57]:

The requirement that the court be satisfied that it is in the best interests of the company that the applicant be granted leave raises two questions. One is whether it is in the best interests of the company that the action be brought. The other is whether it is in the best interests of the company that it be brought by the applicant. The court must consider the interests of the company as a whole. As Brereton J said in Maher v Honeysett & Maher Electrical Contractors Pty Ltd [2005] NSWSC 859 at [44]:

“The phrase "best interests" directs attention to the company's separate and independent welfare. Charlton v Baber (2003) 47 ACSR 31, [52]; Fiduciary Ltd v Morningstar Research Pty Ltd [2005] NSWSC 442, [46]. This imports the familiar concept of the interests of the company as a whole. ... Whether the "best interests" of the company as a whole reflect those of the shareholders taken together in light of the corporate objects, or those of the creditors which will prevail in the context of insolvency, will be influenced by the status of the company. Walker v Wimborne (1976) 137 CLR 1; 3 ACLR 529; Spies v R (2000) 201 CLR 603; 173 ALR 529; 35 ACSR 500; Charlton v Baber (2004) 47 ACSR 31, [53].

In considering what is in the best interests of the company, it is necessary to consider the prospects of success of the action, the likely costs and likely recovery if the action is successful and likely consequences if it is not. One relevant matter in considering these issues is the nature of any indemnity the applicant has offered to the company if the action is brought and the likelihood that the company will recover under that indemnity. It is also necessary to consider the resources the company will be required to devote to the action and the resources it has available, together with the effect that the action may have on other aspects of its business. Finally, it is necessary to consider whether some other remedy is available to the applicant so as to make the proposed action unnecessary from its point of view: see Swansson [2002] NSWSC 583; (2002) 42 ACSR 313 at [56] ff.”

127    By abandoning the s 233 Corporations Act claims the applicants do not seek any relief. The relief claims are confined to the Carver’s Reach entities and Axis North. However, as the remaining applicants with a grant of derivative leave, it is in the interests of the Carver’s Reach entities as a whole to do what can reasonably be done to salvage the claims by the forensic decision to abandon aspects of it, to narrow the scope of the matters in issue and to seek to prove the matters in dispute by documents and without the aid of witnesses. The interests of the Carver’s Reach entities as a whole is to recover substantial compensation for claimed loss caused by one of the directors in breach of fiduciary and statutory duties. That is in the best interests of the shareholders and the creditors. Security for costs has been provided based on the initial estimates of a six-week trial. Mr Pomerenke submits that a trial on the amended claim may be concluded within two weeks. No contrary submission was put by Mr Couper or Mr Thompson. There is clearly adequate security to protect the Carver’s Reach entities form any adverse costs orders. The resources of the Carver’s Reach entities are not being devoted to prosecution of the proceeding. That burden has been assumed by the applicants and Marc Clancy. And no other viable alternative remedy for the Carver’s Reach entities has been identified.

128    There is no evidence that any other creditor, contributory or shareholder is prepared to conduct the proceeding for the benefit of the Carver’s Reach entities. The liquidators have shown no interest in the proceedings thus far, and it is quite improbable that they would be prepared to assume the prosecution of the case at this late stage with the substantial costs liability that would entail.

129    All of these considerations weigh against revocation of derivative leave.

130    Separately, there is the absence of good faith submission. An applicant for derivative leave must establish that he or she is acting in good faith: Chahwan at [83]. An applicant who seeks to advance personal interests rather than those of the company as a whole is unlikely to satisfy this requirement. This submission is related to another: that the proceeding is futile as the Clancy parties have not demonstrated any reasonable prospect of recovery from the So parties and there is no serious prospect of recovery from the TM parties which claim is parasitic on success against the So parties.

131    I address the substance of that submission separately, though on this issue the answer is straightforward: there is no evidence that the applicants are not acting in good faith in their recasting of the claims in consequence of Marc Clancy’s decision.

Recovery prospects

132    The So parties formulate detailed submissions to the effect that a proceeding is not in the best interests of a company where it cannot be demonstrated that it will result in a significant recovery: Bzezinski v Shaw (in his capacity as receiver and manager of Kalimpa Park Pty Ltd [2022] VSCA 173; (2022) 407 ALR 547 at [95]. The premise of the submission is that the Clancy parties have not adduced evidence to demonstrate that there is any prospect of recovery from the So parties. The problem with that submission is that the So parties carry the onus of adducing evidence of establishing that fact as a relevant matter to support the setting aside of the derivative leave orders. The financial position of the So parties is peculiarly a matter within their knowledge. And they have not adduced any evidence of their financial capacity.

133    The evidence relied on by the So parties is limited to extracts from three earlier written submissions of the Clancy parties of 2 April, 25 July and 5 November 2025. The highpoint is the reference to what was submitted by the Clancy parties in resisting the discharge of an interlocutory injunction on 2 April 2025:

If the injunction is discharged, the amount presently held will likely be transferred out of the jurisdiction. The result will be that the subject matter of the litigation (and, in particular, the subject of the Carver’s entities’ proprietary claims) will not have been preserved…. What then would be the purpose of the trial for the applicants and the Carver’s entities even if they are successful? It would be a pyrrhic victory; any judgment in their favour would likely be rendered nugatory.

134    This is not some form of admission by the Clancy parties that the prospect of recovery of all, or a substantial portion, of the amounts claimed is remote. That submission was made in the context of resisting an application by the So parties to vary an interlocutory injunction restraining the So parties from dealing with the proceeds of property. The amount preserved was in the order of $18 million. The application sought release of $3.5 million to permit the So parties to fund their defence. Justice Derrington was persuaded to vary the injunction to that extent: CIP Group Pty Ltd v So (No 5) [2024] FCA 1373. Notably, although his Honour concluded that Terence So did not personally have assets exceeding $50,000 or any real property, his family members had significant financial capacity: [35] – [37]. It should be noted that the injunction was discharged entirely on 15 May 2025: CIP Group Pty Ltd v So (No 8) [2025] FCA 482.

135    Moreover, and more to the point, the relief claimed includes tracing and it may be doubted that the So parties would remain passive in the event that Terence So and or Ultimate suffer judgment and respectively receive a bankruptcy notice or a statutory demand when the family has a long history of providing large sums to fund the Carver’s Reach development.

136    Finally I reject the no prospect of recovery against the TM parties submission because I have found that there is a serious question to be tried on that aspect of the claims against the So parties and the knowing concern claims are satisfactorily pleaded.

No new indemnity

137    Whilst it is correct that no new indemnity has been offered by the applicants for the amended claims, the indemnity set out in the undertakings recorded in the orders made by Derrington J on 16 December 2022 is expressed as applicable to any costs orders made against the Carver’s Reach entities “in the proceeding”. The indemnity does not turn on whether amendments are made to the proceeding. Further, as just observed, the amount held as security for costs is sufficient to meet any adverse costs orders made against the Carver’s Reach entities.

138    Something should be said about an opaque submission of the So parties in their written case. At [105] of the submissions dated 26 November 2025 it is put that a further reason why derivative leave should be revoked “or not granted for the proposed amendments” is that the Clancy entities have not established that the Carver’s Reach entities would not be in a worse financial position by proceeding to trial on the amendments. I reject the submission. The amendments narrow the case for which derivative leave was granted. For the Carver’s Reach entities not in liquidation, s 241 of the Corporations Act confers broad power to manage a proceeding commenced with leave, including to allow amendments: Slea at [119] – [125]; Lees v Connective Services Pty Ltd [2019] VSCA 143 at [101] – [102]. For the entities in liquidation, the general powers of this Court pursuant to the FCA Act and the Rules to allow amendments are not constrained by the fact that a proceeding is prosecuted pursuant to a grant of derivative leave.

The liquidators

139    Finally, the So and TM parties submit that a reason to revoke the grants of derivative leave is that the Clancy parties have not adduced evidence as to the attitude of the liquidators of the second, third, fourth, ninth, eleventh and thirteenth respondents to the new case. Thus, it is said in that circumstance this Court:

Cannot be satisfied of the liquidators’ attitude toward the proceedings and whether the liquidators have formed the view that there is a reasonable foundation for the new claims. The liquidators’ position is particularly critical in the context of this case where there are numerous unsecured creditors of the Carver’s entities and the Clancy entities have not performed any calculation of the potential return (if any) to the Carver’s entities if they are successful in these proceedings.

140    I reject the submission. To the extent it rests on El-Saafin v Franek (No 4) [2020] VSC 389 at [140] – [144] and [161], the case is readily distinguishable because Lyons J was there concerned with an application in the inherent jurisdiction of the Supreme Court of Victoria to bring a proceeding on behalf of the company in liquidation and where his Honour identified as a relevant consideration “the attitude of the liquidator to the proposed proceedings”: [140]. In this proceeding the time for that matter to be considered was when Derrington J granted derivative leave in December 2022.

141    This is not to say that the views of the liquidators are irrelevant in the present case. What, however, must not be overlooked is that the So and TM parties bring the application to revoke the grants of derivative leave, where they carry the onus of persuasion and have chosen not to adduce evidence from the liquidators. In any event, as correctly submitted for Clancy parties, the views of a liquidator are not determinative: Carpenter v Pioneer Park Pty Ltd [2008] NSWSC 551; (2008) 71 NSWLR 577 at [34]; MAG Financial and Investment Ventures Pty Ltd v El-Saafin [2020] VSCA 322 at [60] – [62].

Result of the revocation applications

142    For these reasons the So parties’ application and the TM parties’ application will each be dismissed.

Rochedale Holdings 1 Pty Ltd

143    This is the final issue to be considered. As I have noted, the Clancy parties seek an order under the slip rule correcting the orders made by Derrington J on 28 November 2024 by substituting for the reference to the eighth respondent, the ninth respondent. Without addressing the slip rule, the So parties submit that the Clancy parties have never obtained leave to continue prosecuting the claims in the name of the ninth respondent. Conformably with my reasons above, leave to continue the prosecution of a claim once derivative leave has been granted and if the subject company is thereafter liquidated is unnecessary. The fact is that the ninth respondent was included in the leave granted on 16 December 2022.

144    In any event, there is an obvious error in the orders made by Derrington J which should be corrected.

Overall result

145    I will make orders conformably with these reasons. In addition I will hear the parties as to consequential orders including but not limited to costs and the setting of a new timetable to bring this long running proceeding to trial expeditiously. At the case management hearing on 2 December 2025, I informed the parties that due to resolution of another matter I have two available weeks commencing on Monday 11 May 2026 and my expectation is that this proceeding will be timetabled accordingly.

Associate:

Dated:    6 February 2026

SCHEDULE OF PARTIES