Federal Court of Australia

Secover Pty Ltd v Graham, in the matter of Graham [2026] FCA 260

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted pursuant to section 188(4) of the Bankruptcy Act 1966 for Bryce Graham and Lachlan Graham (together, Respondents) to give an authority to Bruce Gleeson to take control of their property under Part X of the Bankruptcy Act 1966 (Cth), such authority to be provided by 17 March 2026.

2.    The Creditor’s Petition filed by Secover Pty Ltd on 13 June 2025 be stayed until 18 March 2026.

3.    Secover pay the Respondents’ costs of their application filed on 24 December 2026.

4.    The Respondents exercise liberty to apply within seven days of the conclusion of the meeting of the Respondents’ creditors pursuant to authority signed under s 188 of the Bankruptcy Act.

5.    Provided an authority of Bryce Graham and Lachlan Graham has become effective on or by 17 March 2026, note that the proceedings on the creditor’s petition are stayed pursuant to section 189AAA of the Bankruptcy Act.

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

REASONS FOR JUDGMENT

BURLEY J:

1.    INTRODUCTION

1.1    The application

1    In this application, Bryce Graham and Lachlan Graham (debtors) seek an order granting them leave pursuant to s 188(4) of the Bankruptcy Act 1966 (Cth) to give a further authority under s 188(1) for a controlling trustee to take control of their property. The application is opposed by Secover Pty Ltd who is one of the creditors of the debtors.

1.2    Background

2    Secover filed a creditor’s petition on 13 June 2025 in respect of a judgment obtained in March 2023 in the Supreme Court of New South Wales in the amount of $6,109,804.81 (judgment debt). The creditor's petition was adjourned by a Registrar of the Court on several occasions in the period from July until September 2025. It was listed for hearing on 18 September 2025. However, on 16 September 2025 the debtors authorised Bruce Gleeson as controlling trustee to call a meeting of their creditors and to take control of their property pursuant to Part X, Div 2 of the Bankruptcy Act. The consequence was that the proceedings under the creditor's petition were stayed pursuant to s 189AAA(1) of the Bankruptcy Act.

3    On 29 October 2025 Mr Gleeson held a first creditors meeting, which was adjourned and resumed on 19 November 2025, when the creditors met and voted on a proposed personal insolvency agreement. The majority of creditors voted in favour of a resolution requiring the debtors to execute the proposed personal insolvency agreement, but only 70.7% of creditors in value did so, with the consequence that a special resolution, which requires a majority vote as well as at least 75% of the creditors by value, could not be passed: Insolvency Practice Rules (Bankruptcy) 2016 (Cth) (IPR) r 75–132.

4    On 17 December 2025 the debtors filed the present interlocutory application. The reason for it arises because the debtors wish to present an amended personal insolvency agreement for consideration by their creditors. By operation of s 189(1A)(d) of the Bankruptcy Act, the control of the debtor’s affairs ceases four months after the authority became effective. As the initial authority became effective on 16 September 2025, the authority was due to expire on 16 January 2025. Upon the expiration of the authority no further action can be taken by the controlling trustee until another authority is provided. However, s 188(4) of the Bankruptcy Act provides that a debtor cannot give a further authority within 6 months of giving an earlier one, which gives rise to the need for the present application for leave.

1.3    The urgency of the application and the evidence

5    During the events summarised above, the parties appear to have proceeded on the common assumption that a stay of the creditor's petition remained in place from the time of the appointment of the controlling trustee. That assumption was not entirely correct, because it would appear from the language of s 189AAA(1) of the Bankruptcy Act that the stay that commences with the appointment of a controlling trustee ceases upon the earlier of the adjournment or conclusion of a creditors meeting. However, no creditor's petition has been presented for determination since 29 October 2025 (when the creditors meeting was adjourned), and the creditor’s petition filed on 13 June 2025 was adjourned until the present application was determined by Order of a Registrar of the Court on 18 December 2025. I have been asked to proceed on the basis that if the interlocutory application is determined in favour of the debtors, then the creditor's petition will not proceed until after the task of the controlling trustee is completed, provided that no personal insolvency agreement is entered into.

6    The six months since the appointment of the controlling trustee will pass at the end of 15 March 2026. I heard the application as duty judge on 10 March 2026, and the parties urged upon me the need to determine the application before the 13 March 2026 because, if the six months is allowed to pass, the debtors will be free to issue another authorisation appointing the controlling trustee under s 188 and Secover’s creditor's petition will again be stayed. The debtors now put forward an amended personal insolvency agreement which, the evidence suggests, will be approved by special resolution given additional creditors have since lodged proofs of debt. Secover opposes that course. It contends that, absent any stay, the petition would be granted and sequestration orders would be granted against the debtors.

7    Much evidence was filed in support of the application. The following affidavits were read by the debtors:

(1)    Affidavits of Bryce Graham (a debtor) dated 17 December 2025 and 9 February 2026;

(2)    Affidavits of Lachlan Graham (a debtor) dated 17 December 2025 and 9 February 2026;

(3)    Affidavit of Mr Gleeson (the controlling trustee) dated 6 February 2026;

(4)    Affidavits of Maxwell Graham (the father of the debtors, and the sole director and shareholder of Woodcroft Investment Pty Ltd) dated 9 February 2026 and 6 March 2026;

(5)    Affidavits of Cristian Sotelo (solicitor for the debtors) dated 17 December 2025 and 9 February 2026;

(6)    Affidavit of Aaron Torline (creditor in his capacity as liquidator of Graham Family SPV (3) Pty Ltd) dated 6 February 2026;

(7)    Affidavit of Martin Cooper (creditor) dated 9 February 2026;

(8)    Affidavit of Shaun McGushin (authorised representative of Manildra Enterprises Pty Ltd, a creditor) dated 9 February 2026;

(9)    Affidavit of Amy Cheung (director of Geston Limited, a creditor) dated 9 February 2026;

(10)    Affidavit of Charlie Hart (creditor in his personal capacity and as director of C.B. Hart Pty Ltd) dated 16 February 2026;

(11)    Affidavit of Phil Holt (authorised representative of Atlantic Partners Asia Fund, a creditor) dated 9 March 2026; and

(12)    Affidavit of Antony Glynn (director of Ottley Livestock Pty Ltd, a creditor) dated 9 March 2026.

8    The following affidavits in response were read by Secover: the affidavit of Hamish Esplin of 25 February 2026, and the affidavit of Christiana McCudden of 3 March 2026.

9    Prior to the hearing the debtors and Secover each filed helpful written submissions. The debtors were represented at the hearing by Nicola Bailey of counsel. Secover was represented by Andrew Harding SC and James Norton of counsel.

10    At the conclusion of the hearing I indicated that I would make the orders indicated in the draft short minutes of order proposed by the debtors and publish my reasons later. Below are my reasons for granting the orders sought.

2.    BACKGROUND FACTS

11    The judgment debt arose as a result of the operations of Argyle Foods Group Pty Ltd and Graham Family SPV (3) which were both established, owned and controlled by the debtors. The liability of the debtors arose from guarantees provided by them to Graham Family SPV (3) and other companies in the Argyle Foods group.

12    On 29 October 2025, the creditors first met to consider entry into a personal insolvency agreement. That meeting was adjourned at the request of the controlling trustee to enable him to conduct further enquiries.

13    On 19 November 2025 the meeting was resumed to enable the creditors to vote on the personal insolvency agreement. The minutes of the meeting record that the controlling trustee informed the creditors of the following matters, by way of background to their vote:

(a)    The debtors established a group of companies under the “Argyle Food Group” brand which was an export and “paddock-to-plate” processing enterprise.

(b)    During the years ending 30 June 2023 and 30 June 2024, the group made a significant loss that was attributed to decreasing cattle prices. Mr Bryce Graham explained at the meeting that the group had significant exposure in China. A combination of the COVID-19 pandemic and the loss of the market in China meant that the group lost 95% of its customers and livestock market.

(c)    In July 2024 and February 2025 the debtors attempted, but failed, to restructure their arrangements.

(d)    In January 2025, an asset sale agreement was entered into between the group, the debtors and ABL Co Pty Ltd whereby ABL became the operating entity that employs the debtors and which operates the business formerly operated by the group.

(e)    ABL had aligned shareholders, mainly being AAM Licensees Pty Ltd and Sure Good Foods Ltd, which are both agricultural businesses that have significant assets and a large market share in America and Australia.

(f)    The shareholders in ABL are:

(i)    AAM Licensees – 65%;

(ii)    Sure Good – 10%; and

(iii)    Woodcroft – 25%.

(g)    Woodcroft is a company, the sole director and shareholder of which is Maxwell Graham, the debtors’ father. Woodcroft is also the trustee of the Graham ABL Trust.

14    The meeting minutes record that there were two core elements for the fund created under the personal insolvency agreement for the benefit of the creditors. First, payments funded by the debtors of $60,000, and secondly payment of 95% of post-tax dividends provided by ABL to Woodcroft for each of the years ended 30 June 2027 to 30 June 2031 which were estimated to be $7,375,048 (the estimated contributions). Woodcroft was to grant a security interest, to the satisfaction of the controlling trustee, for the estimated contributions.

15    In his affidavit in support of the application, Mr Bryce Graham attaches a draft independent valuation report of ABL prepared by RSM Australia Pty Ltd which provides an estimate of the expected value of the company. The draft report is heavily qualified. It is based on estimated cashflows provided by key personnel of ABL, who include Mr Bryce Graham, and also based on other sources. It supports the expected dividends that are set out in the draft personal insolvency agreement.

16    The minutes record that the controlling trustee, as chairman of the meeting, estimated that the return to creditors as a result of this arrangement would be 20-21 cents in the dollar which he considered to be “a significant return in insolvency matters generally” where normally there is no return. He recommended that the meeting approve the personal insolvency agreement.

17    One creditor, Martin Cooper, who represented himself as a creditor admitted in the amount of $550,000, questioned what would happen if ABL was sold and whether the sale proceeds would be payable to the personal insolvency agreement fund. The minutes record a discussion and confirmation by the solicitors representing the debtors that it would be.

18    A vote was taken by the creditors in respect of three resolutions, each being that the debtors be required to execute a personal insolvency agreement in the terms summarised above. The first resolution concerned the joint estate of the debtors, the second in respect of the estate of Mr Bryce Graham and the third in respect of the estate of Mr Lachlan Graham. The outcome of each was substantially the same, namely that a majority of the creditors voted in favour of the resolutions but the share of the debt between them amounted to approximately 70.7% of the total. Accordingly, the vote failed.

19    It is convenient to refer to the voting by reference to the joint estate – which is materially the same as that for the separate estates – and was as follows:

(a)    the following creditors voted in favour of the proposed resolution:

(b)    the following creditors voted against the proposed resolution:

20    Mr Gleeson gives evidence that since the meeting of creditors, on 1 December 2025 he received a further amended proposed personal insolvency agreement (1 December personal insolvency agreement) which is said to address the concern raised by Mr Cooper.

21    The substantive terms of the 1 December personal insolvency agreement are in accordance with those identified in the November 2025 personal insolvency agreement, with the addition of a term that if ABL elected to sell its business or there was any return of capital to Woodcroft, Woodcroft must pay any proceeds received to the fund up to the amount of the estimated contributions.

22    As noted above, the sole director and shareholder of Woodcroft is Maxwell Graham, who is the father of the debtors. He has affirmed two affidavits. In the first he says that he intends to cause Woodcroft to execute the 1 December personal insolvency agreement and cause it to perform its obligations under that agreement and gave other evidence affirming compliance of Woodcroft with its terms. In his second affidavit he gives evidence that in the event that the debtors are made bankrupt, he would not cause Woodcroft to do any of these things.

23    Mr Gleeson gave evidence that since the November 2025 meeting, he has received additional proofs of debt from:

(a)    C.B. Hart in the amount of $483,846.39;

(b)    Charles Benjamin Hart in the amount of $399,435.43 plus GST of $36,312.31; and

(c)    Graham Family SPV (3) in the amount of $12,210,705.

24    Mr Gleeson notes that these additional proofs of debt increase the total claims against the debtors by $13,093,986.62. He gives the opinion that the 1 December 2025 personal insolvency agreement will remain in the best interests of creditors provided the circumstances remain the same, including because it will provide for a greater return to creditors than a bankruptcy. His expectation, based on his enquiries as to the affairs of the debtors, is that there would be a nil return to creditors in the event that they are made bankrupt.

3.    THE SUBMISSIONS

25    The debtors submit that the circumstances of the present case are unusual. Despite having a majority in number of creditors and a recommendation in favour of the personal insolvency agreement from the controlling trustee, the personal insolvency agreement failed by a small margin. However, because a second meeting of creditors could not be held to consider the 1 December 2025 personal insolvency agreement, the overwhelming support of the creditors cannot be converted to approval of it under the Bankruptcy Act, citing Pretorious v Daltons Carpet Tiles Pty Ltd (1984) 1 FCR 346.

26    The debtors submit that in the personal insolvency agreement scenario the creditors are estimated to receive up to 0.22 cents in the dollar, compared with receiving nothing in the event of bankruptcy, and note that each of the debtors, as well as their father as director of Woodcroft, depose that they will take the requisite steps to promote and enable implementation of the personal insolvency agreement. Based on the evidence of the supporting creditors, the quantum of admitted proofs of debt at the creditors meeting, and the three new proofs of debt, calculations in an exhibit to the affidavit of the debtors’ solicitor indicate that about 78% of the total value of creditors to the joint estate are now expected to vote in favour of the personal insolvency agreement (with similar outcomes for each of the individual estates). Furthermore, the affidavit evidence of the debtors indicates that each would suffer prejudice in the form of likely dismissal from their employment with ABL whereas no prejudice will be suffered by Secover if leave is granted to the debtors to execute a further authority enabling creditors to vote on the 1 December 2025 personal insolvency agreement, save for a short delay before it may prosecute the creditor’s petition (if the vote is not in favour) or entry into the personal insolvency agreement (if the vote is in favour). They submit that it is relevant that they have each given an undertaking that they will not dispose of any assets or funds other than in the ordinary course of business until determination of the application.

27    Secover submits that the debtors bear the onus of persuading the Court to depart from the ordinary course and grant leave to give a further authority. They advance a number of reasons why the leave should not be granted. First, that there is minimal change between the personal insolvency agreement that was rejected at the creditors meeting and the 1 December 2025 personal insolvency agreement, the difference being the provision that if ABL elected to sell, Woodcroft must pay any proceeds received. Secondly, there are uncertainties as to whether any of the estimated contributions will ever be realised beyond an initial payment in cash of $60,000 in the first year by the debtors. Any non-nominal recovery is entirely contingent on the post-tax dividends paid by ABL to Woodcroft which are speculative and based upon a valuation report which is in draft form, is heavily reliant on information provided by one of the debtors, and which must be regarded as not providing a sound basis to consider the proposals to the creditors. Thirdly, in order to contend that there will be a difference in voting such that there is a realistic prospect that the 1 December 2025 personal insolvency agreement will meet the approval of the creditors, the debtors rely heavily on debts owed to companies associated with the debtors, and in some instances are submitted to be in reality “duplicates” of debts already accounted for in the creditors meeting. Fourthly, Part X of the Bankruptcy Act demands some urgency on the part of the controlling trustee, and matters which may render proceedings ill-suited for Part X include complexity and the need to conduct detailed investigations to determine the true position in relation to the debtor, citing Kambouris v Paule, in the matter of Paule [2025] FCA 1590 (Burley J). Secover submits that the debtors’ estates are complex and the personal insolvency agreement regime in Part X is not well adapted to such a case.

28    Secover submits that the debtors’ sole ground of opposition to the creditor's petition is the pending determination of the interim application. It follows that upon dismissal of that application the Court should proceed to grant the relief sought in the creditor's petition.

4.    CONSIDERATION

29    Section 188(4) of the Bankruptcy Act provides:

Subject to subsection 192(1), a debtor cannot give an authority within 6 months of giving another authority, unless the Court grants leave to do so.

30    The discretion to grant leave to give a second authority within the space of 6 months must be considered within the context of the section within which it appears and in the light of the evident policy and purposes of Part X of the Bankruptcy Act.

31    In Kambouris I addressed the general scheme of Part X, Div 2, in light of an application brought under s 208 for an order releasing a debtor’s property from control under the Division where the Court may be satisfied that “special circumstances” justify the making of the order. In that judgment I noted that the secondary materials indicate that the aim of Part X is to provide a simple and flexible process for debtors and creditors to come to an agreement without sequestration that does not involve the strict procedure of bankruptcy: Kambouris at [63], [64].

32    This objective is reflected in the terms of Part X, Div 2. Section 188 provides a mechanism whereby a debtor wishing for his or her affairs to be dealt with under the Part signs an authority authorising (relevantly) a registered trustee to call a meeting and take control of the debtor’s property, but only if the registered trustee is first given a statement of the debtor’s affairs and a proposal for dealing with those affairs which must include a draft personal insolvency agreement: s 188(2C), (2E). Once the authority is given, it is not revocable by the debtor: s 188(3). Upon consenting to the exercise of powers given by an authority, the registered trustee must give a copy of the authority and the debtor’s statement of affairs to the Official Receiver within two business days: s 188(5); Kambouris at [65].

33    Relevantly to the present application, by s 189(1A), control of the property of the debtor continues until one of a number of events happens, one of which is that four months pass since the authority under s 188 became effective: s 189(1A)(d). Other events are that the creditors resolve at a meeting to cease the control, a personal insolvency agreement is executed following a special resolution of the creditors, the Court releases the property from control under s 208, or the debtor becomes bankrupt: s 189(1A)(a), (b), (e) and (f). By s 189(2) a debtor whose property is subject to control under Division 2 is prohibited from removing or disposing of his or her property except with the consent of the controlling trustee and is obliged to furnish required information and comply with such directions as are given by the controlling trustee.

34    Section 189AAA(1) addresses the stay of any creditor's petition, and provides that if an authority signed under s 188 has become effective and a creditor's petition was presented against the debtor before the authority became effective, then proceedings relating to that petition are stayed until either: (c) the conclusion of the meeting of creditors; or (d) the adjournment of the meeting, whichever is the earlier.

35    As I have noted, in the present case, the effect of s 189(1A)(d) is that on 16 January 2026 the authority provided by the debtors expired. Before then, upon the adjournment of the meeting of creditors on 29 October 2025 and then on conclusion of the meeting of creditors on 19 November 2025 where the creditors failed to approve the draft personal insolvency agreement, the stay on the creditor's petition was lifted pursuant to s189AAA(1)(c), (d). Accordingly, it would appear to have been open to Secover to press its case for a sequestration order since 29 October 2025. It did not do so, on the basis of the apparently common assumption of the parties that the stay remained on foot. On 18 December 2025 a Registrar of the Court ordered that the petition be adjourned until the present application was determined.

36    Section 189A(1) provides for the preparation of a report by the controlling trustee which must summarise and comment on the information about the debtor’s affairs and state whether the controlling trustee believes that the creditor’s interests would be better served by accepting the debtor’s proposal for dealing with his or her affairs under Part X or by the bankruptcy of the debtor. By s 189B the controlling trustee must prepare a written statement about the special resolutions under s 204 that may reasonably be expected to be passed at a meeting of creditors called under the authority. Under s 204, the special resolutions that may be passed at a meeting called pursuant to an authority under s 188 include a resolution to require the debtor to execute a personal insolvency agreement (s 204(1)(b)).

37    Section 190 specifies the duties and powers of the controlling trustee. They include: (1) that the controlling trustee must call a meeting of the debtor’s creditors; and (2) that the controlling trustee is empowered to: (a) take immediate control of the debtor’s property and affairs; (b) make inquires and investigations as the trustee considers necessary; (c) carry on the business of the debtor, if the controlling trustee considers it to be in the interests of the creditors to do so; and (d) deal with the debtor’s property in any way that will be in the creditors’ interests. Additional duties are identified in s 190A.

38    Section 206(1) provides that where a meeting of creditors has passed a special resolution requiring the debtor to execute a personal insolvency agreement and a creditor’s petition was presented against the debtor before the passing of the resolution or is presented against the debtor after the passing of the resolution but before the agreement has been executed, then upon application by the debtor, a creditor or a person nominated as trustee under the proposed agreement, the Court may (if it considers it would be for the advantage of the creditors that the debtor’s affairs be administered under the agreement) adjourn the hearing of the petition for such period as it considers necessary to allow the agreement to be executed and, if duly executed, dismiss the petition.

39    Section 208 provides for the termination of control under Part X by the Court in special circumstances: Kambouris at [59]–[62].

40    By r 75–27(1) of the IPR, the controlling trustee must call a meeting of creditors not more than 30 business days after consent or approval of their appointment.

41    As I noted in Kambouris at [75], the scheme of Part X calls for some urgency on the part of the controlling trustee.

42    I now return to the question of the exercise of the discretion under s 188(4). As the provisions outlined above indicate, an authority given under s 188(1) will expire by the effluxion of time after four months: s 189(1A)(d). However, a debtor may not give a further authority within 6 months of another authority without leave of the Court: s 188(4). The debtor is provided with the opportunity under s 189(1A)(d) to take four months to persuade the creditors to accept his or her proposed personal insolvency agreement. Before four months has transpired other events may bring the authority to a halt. For instance, the creditors may nonetheless vote that the property cease to be the subject of control or the Court may release the property from the authority under s 208. But it is apparent that the legislature otherwise intended that the debtor have at least this amount of time to get his or her affairs to a state of agreement with the creditors.

43    If no sequestration order is made after four months but before six months, then by s 188(4) a debtor may be given another chance to give an authority but only by leave of the court. After six months from the first authority, no leave is required for the debtor to issue a further authority under s 188(1).

44    Part X, Div 2 of the Bankruptcy Act affords an opportunity for debtors and creditors to reach an agreement as to the organisation of the debtor’s affairs. A relatively short time (4 months) is given to the controlling trustee to investigate and report to creditors. A short moratorium on proceedings relating to a creditor's petition is allowed. If an agreement can be reached, it is apparent that the legislature considers this to be a beneficial outcome that avoids the consequences of a bankruptcy. One evident purpose of this limitation is to ensure that a debtor does not attempt to game the system by issuing a rolling series of authorities thereby gaining the benefit of the stay of progress of any creditor's petition. As Emmett J said in In the Matter of Roberts, Harley Warren; Roberts, Harley Warren [1998] FCA 216:

… [S]ection 188(4) is designed to prevent a debtor from frustrating the enforcement of debts by creditors by continually renewing authority under section 188 so as to place control of his or her property in the hands of a trustee.

45    However, s 188(4) expressly confers a discretion on the Court to permit a further authorisation to be presented. To activate that discretion, considerations relevant to the Court are likely to include:

(a)    the reason for the further authorisation;

(b)    whether the further authorisation has any utility;

(c)    whether there is any disentitling conduct on the part of the debtor or the controlling trustee;

(d)    the relative prejudice to the creditors and debtor in allowing the application.

46    The case put forward by the debtors is that since the failure of the creditors meeting to resolve to accept the personal insolvency agreement put forward in November 2025, the debtors have worked with Mr Gleeson to prepare and put forward a further proposal. Mr Gleeson, as controlling trustee, has since received proofs of debt from more parties. He considers that the proposal is advantageous to all of the creditors based on his estimates of the likely returns. However, he anticipated that the authority would cease in January 2026 and did not have time within the currency of his role to conduct a meeting of creditors. By operation of s 188(4) a debtor cannot give a further authority within 6 months of giving another authority.

47    I am persuaded that it is appropriate in the circumstances of this case to grant the leave sought. First, the debtors have moved promptly to propose a further amended personal insolvency agreement. The creditors meeting was held in November 2025 and the further amended agreement was proposed to the controlling trustee on 1 December 2025.

48    Secondly, the controlling trustee has recommended the personal insolvency agreement as being in the best interests of the creditors.

49    Thirdly, since the November 2025 meeting, three further creditors have come forward. They have indicated their willingness to vote in favour of the 1 December 2025 personal insolvency agreement. This suggests that there is utility in conducting a meeting of creditors. The evidence supports this point. Of the current debtors who have lodged proofs of debt with the controlling trustee, Aaron Torline is the liquidator of Graham Family SPV (3). He has affirmed an affidavit to the effect that he will vote in favour of the 1 December 2025 personal insolvency agreement. So too have: Martin Cooper; Shaun McGushin (the authorised representative of Manildra); Amy Cheung (the director of Geston Limited); Charlie Hart (a director of C.B. Hart and a personal creditor); Phil Holt (the authorised representative of Atlantic Partners Asia Fund); and Antony Glynn (director of Ottley). In addition, an email in evidence of 16 December 2025 indicates that the liquidator of ACN 619 953 169 Pty Ltd, a creditor formerly known as Argyle Foods Pastoral Pty Ltd, supports the proposal, provided it was recommended by the controlling trustee.

50    Fourthly, there is no suggestion advanced by Secover that the controlling trustee, any of the liquidators or any other creditors are acting otherwise than in their own best interests or do not have a rational basis for their support. There is no disentitling conduct.

51    Fifthly, the vote at the November 2025 meeting was close, such that it might reasonably be expected that it is worthwhile to put to a meeting of creditors a slightly amended personal insolvency agreement in order to see whether the outcome would be different. Having regard to the fact that additional proofs have been lodged and the indications of support to which I have referred, it would appear that there is a reasonable prospect that the vote will succeed. This is a far cry from concerns about “gaming the system” that is likely to provide one basis upon which the discretion may be exercised.

52    As noted above, Secover raises a number of points in opposition to the grant of leave.

53    The first is that there is little change between the two proposals. However, that is a matter for the creditors to determine. The 1 December 2025 personal insolvency agreement includes details that are intended to address the concerns raised by Mr Cooper about what should happen if ABL is sold to a third party, which the creditors may consider to be material. As noted above, the evidence given by the creditors suggests that a majority of the creditors and that 75% of the creditors by value will support the personal insolvency agreement.

54    The second is that there is said to be a minimal recovery guaranteed under the personal insolvency agreement. That too is a matter for the creditors. Whilst Secover criticised aspects of the draft valuation report as providing inadequate information, it will be free to point out those matters to the creditors at or before the meeting. I would expect that rational creditors would vote on whether to approve of the 1 December 2025 personal insolvency agreement based on their own commercial interests. It may be inferred that they have some expertise in understanding the liabilities of the debtors and can form their own view as to the adequacy of the valuation report. The controlling trustee may be inferred to also have expertise in this regard.

55    The third concerns the voting rights of the creditors. Secover notes that the liquidator of Graham Family SPV (3), Mr Torline, has lodged a proof of debt with the controlling trustee in the amount of $12,210,705, which includes an insolvent trading claim against the debtors in respect of a debt owed by Graham Family SPV (3) to Secover in the amount of $6,146,187 and an insolvent trading claim in respect of a debt owed by Graham Family SPV (3) to Ottley in the amount of $6,046,518. Each of Secover and Ottley have separately lodged proofs of debt against the debtors. Secover submits that the result will be in effect double counting of these debts in the vote of creditors, to its disadvantage, given Mr Torline has indicated that he will vote in favour of the 1 December 2025 personal insolvency agreement. However there can be no doubt, as Secover accepts, that the controlling trustee has legitimately admitted the proofs of debt. Each of Secover and Ottley on the one hand and the liquidator of Graham Family SPV (3) on the other hand have separate interests in respect of the debts. See, by analogy, Taylor v Rudaks [2007] FCA 1962 (Mansfield J) at [7], [29], [48]–[52]. It is for the controlling trustee to adjudicate claims between competing creditors which the Court would not lightly interfere with in an application such as the present: see Taylor v Rudaks at [57]. Accordingly, I reject this submission.

56     Finally, I see little prejudice to the creditors in permitting the further authorisation of the controlling trustee. They will have an opportunity to consider and vote upon the further personal insolvency agreement and, if it is rejected, they may proceed to present the creditor's petition.

57    Accordingly, on 10 March 2026 I made the following orders:

(1)    Leave be granted pursuant to section 188(4) of the Bankruptcy Act 1966 for Bryce Graham and Lachlan Graham (together, Respondents) to give an authority to Bruce Gleeson to take control of their property under Part X of the Bankruptcy Act 1966 (Cth), such authority to be provided by 17 March 2026.

(2)    The Creditor’s Petition filed by Secover Pty Ltd on 13 June 2025 be stayed until 18 March 2026.

(3)    Secover pay the Respondents’ costs of their application filed on 24 December 2026.

(4)    The Respondents exercise liberty to apply within seven days of the conclusion of the meeting of the Respondents’ creditors pursuant to authority signed under s 188 of the Bankruptcy Act.

(5)    Provided an authority of Bryce Graham and Lachlan Graham has become effective on or by 17 March 2026, note that the proceedings on the creditor’s petition are stayed pursuant to section 189AAA of the Bankruptcy Act.

Associate:

Dated:    13 March 2026