Federal Court of Australia

Shanahan as trustee of the Estate of Wilcox v Sanderson Estates Pty Ltd in the matter of Wilcox (a bankrupt) (No 3) [2026] FCA 979

ORDERS

THE COURT NOTES THAT:

A.    In these orders, a reference to:

(a)    the “Real Property Assets of the Estate” is a reference to the following parcels:

(i)    Auto Consol 20007-206;

(ii)    Auto Consol 3816-175;

(iii)    Folio 10/754281; and

(iv)    Folio 18/754281;

(b)    the “Real Property Assets of the Company” is a reference to the following parcels:

(i)    Auto Consol 20006-199;

(ii)    Auto Consol 20007-145;

(iii)    Folio 13/754259;

(iv)    Folio 2/754281;

(v)    Folio 16/754281;

(vi)    Folio 1/1113492; and

(vii)    Folio 1/651575.

THE COURT ORDERS THAT:

1.    Pursuant to s 30(1) of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act) and s 90-15 of the Insolvency Practice Schedule (Bankruptcy), being Schedule 2 to the Bankruptcy Act, John Shanahan and Matthew Vines as joint and several trustees of the estate of Benjamin Ian Alexander Wilcox (Trustees) are justified in:

(a)    proceeding to forthwith market the Real Property Assets of the Estate for sale without providing further time to the Bankrupt to obtain finance in order to annul the bankruptcy; and

(b)    marketing and selling the Real Property Assets of the Estate in one line with the Real Property Assets of the Company.

2.    Pursuant to s 19 of the Federal Court of Australia Act 1976 (Cth) and r 14.23 of the Federal Court Rules 2011 (Cth) that John Shanahan and Kathleen Vouris as receivers and managers of the Sanderson Estates Pty Ltd ACN 000 399 379 (Receivers) are justified in marketing and selling the Real Property Assets of the Estate in one line with the Real Property Assets of the Company.

3.    The Trustees’ costs of the interlocutory application filed on 22 April 2026 (Interlocutory Application) be a cost in the administration of the estate of Mr Wilcox.

4.    The Receivers’ costs of the Interlocutory Application be a cost in the receivership of the Sanderson Estates Pty Ltd ACN 000 399 379.

5.    The application made instanter by Mr Wilcox for a stay of any decision of the Trustees notified to Mr Wilcox at any time prior to 2 July 2026 to realise the assets of Mr Wilcox’s estate be dismissed.

6.    The application made instanter by Mr Wilcox for a stay of Orders 1 and 2 of these orders be dismissed.

7.    The application for a review of the decision of the Trustees to realise the assets of the estate of Mr Wilcox dated 24 December 2025 be otherwise stood over for a case management hearing at 9.30 am on 22 July 2026.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

HALLEY J:

A.     Introduction

1    John Shanahan and Matthew Vines as the joint and several trustees of the bankrupt estate of Benjamin Ian Alexander Wilcox (Trustees) and Mr Shanahan and Kathleen Vouris as the court appointed receivers and managers of the respondent, Sanderson Estates Pty Ltd ACN 000 399 379, (Receivers) by an interlocutory application filed on 22 April 2026 seek judicial advice with respect to whether the Trustees and Receivers are justified in marketing and selling in one line the real property assets of the estate of Mr Wilcox and of Sanderson Estates (Judicial Advice Application).

2    On 25 December 2025, Mr Wilcox separately lodged for filing an interlocutory application for a review of the decision of the Trustees to realise assets of his estate, allegedly as notified to him by a letter dated 27 October 2025 from the solicitors for the Trustees. In his application for a review of the Trustee’s decision, Mr Wilcox seeks an order setting aside that decision.

3    At the hearing today of the Judicial Advice Application, Mr Wilcox has also made a claim instanter for interim relief, seeking a stay of any decision of the Trustees notified to Mr Wilcox at any time prior to the today’s hearing to realise the assets of his estate and a stay of any orders made by this Court granting the orders sought by the Trustees and Receivers in the Judicial Advice Application. Mr Wilcox otherwise clarified that he was not seeking today to proceed with his application for a review of the Trustee’s decision to realise the assets of his estate, allegedly as notified to him by a letter dated 27 October 2025 from the solicitors for the Trustees.

4    This is the third interlocutory application made by the Trustees and Receivers for judicial advice in connection with the bankruptcy of Mr Wilcox and the receivership of Sanderson Estates.

5    The Trustees and Receivers rely upon (a) an affidavit of Mr Shanahan, affirmed on 4 April 2024, (b) three affidavits of Carrie Nicole Peterson, the solicitor acting for the Trustees and Receivers, sworn on 25 July 2024, 22 April 2026 and 24 June 2026, and (c) the exhibits to those affidavits.

6    Mr Wilcox relies upon (a) an affidavit of his solicitor, Ian Douglas Roche, sworn on 3 June 2026, (b) an exhibit to that affidavit of Mr Roache, and (c) an affidavit of Mr Wilcox sworn on 5 June 2026.

B.     Background

7    The relevant background to the Judicial Advice Application is set out in the reasons for judgment given by Wigney J in Shanahan as trustee of the Estate of Wilcox v Sanderson Estates Pty Ltd in the matter of Wilcox (a bankrupt) [2024] FCA 893 (Shanahan No. 1) at [1] to [7] and at [6] to [9] of my decision in Shanahan as trustee of the Estate of Wilcox v Sanderson Estates Pty Ltd in the matter of Wilcox (a bankrupt) (No 2) [2025] FCA 528 (Shanahan No. 2).

8    For present purposes, it is sufficient to note the following background facts.

9     On 14 September 2023, an order was made that the estate of Mr Wilcox be sequestrated, and the Trustees were appointed as joint and several trustees in bankruptcy (sequestration order). Prior to the making of the sequestration order, Mr Wilcox was the registered proprietor of four of the 11 parcels of unencumbered grazing land, collectively known as “Barwon Vale”, located at Walgett in New South Wales (Bankrupt’s Lots). Sanderson Estates is the registered proprietor of the remaining seven folios of Barwon Vale. Since 11 April 2019 and until the sequestration order was made and the Trustees were appointed, Mr Wilcox was the sole director and secretary of Sanderson Estates. He has also been the sole holder of all shares in Sanderson Estates, at least since 30 August 2016. By reason of the sequestration order, those shares are now vested in the Trustees.

10    On 9 April 2024, Perry J of this Court made an order in this proceeding appointing the Receivers of all of the property, assets and undertaking of Sanderson Estates.

11    Given a likely significant surplus in the assets of the bankrupt estate, Mr Wilcox explored the possibility of obtaining finance to achieve an annulment of his bankruptcy. Those attempts, however, to date, have been unsuccessful.

12    More recently, Mr Wilcox has been seeking to obtain financing from Thera Ag Finance. Mr Roche gives evidence of steps that have been taken by Mr Wilcox in seeking to obtain finance from Thera in the period since about February 2026. Those efforts have included the provision by Thera on 9 February 2026 of an indicative term sheet with respect to a proposed loan facility. The term sheet described the purpose of the loan facility as a wish by Mr Wilcox to “refinance an existing property in order to restructure and clear their obligations”. The reference to refinancing is unfortunate, as there is no current facility over the real property asset described in the term sheet as a “collateral”.

13    In the period between February and April 2026, several communications passed between Mr Roche, on behalf of Mr Wilcox , Thera, and Ms Peterson, on behalf of the Trustees and Receivers regarding the term sheet.

14     Ultimately, on 20 April 2026, a representative of Thera, Patrick McNally, emailed Mr Wilcox and Mr Roche noting as follows:

•    Given we are almost in May, the prospect of having a winter crop planted on land that has not yet been farmed is remote and a poor risk.

•    Thera is unable to provide funding while Ben remains bankrupt; annulment is required prior to funding.

•    Ben's stated intention to contest the bankruptcy (or at least one of the bankrupting creditors) is likely to result in a prolonged annulment process.

•    Thera cannot place funds into escrow as part of a creditor challenge process.

At this stage, Thera will place the application on hold pending annulment.

We acknowledge that annulment may require evidence of intent to finance. Accordingly, Thera is willing to recommence work on the file once a clear timeframe for annulment is established, subject only to judicial sign-off.

15    It is tolerably clear from the email of Mr McNally referred to at [13] above that, at this stage, Thera is taking no further steps to progress any proposed financing for Mr Wilcox or Sanderson Estates. There is no evidence before me of any further communications that Mr Wilcox may have had with Thera since 20 April 2026, nor is there any evidence before me of any other financing options that may have been or are being pursued by Mr Wilcox at this time in an effort to obtain an annulment of his bankruptcy.

C.     Legal principles

16    The relevant principles governing the circumstances in which the court may provide judicial advice to trustees in bankruptcy and court appointed receivers are well established. As Wigney J observed in Shanahan No. 1 at [18], the leading authorities include Re One.Tel Limited (2014) 99 ACSR 247; [2014] NSWSC 457 (Brereton J); Re Ansett Australia Limited (No 3) (2002) 115 FCR 409; [2002] FCA 90 at [44] and [65] (Goldberg J); Re Mirabela Nickel Ltd (Recs and Mgrs Apptd) (in liq); Ex Parte Madden [2018] WASC 335 at [89] (Vaughan J); Heenan, Ruby Apartments Pty Ltd (in liq) v Ralan Paradise No 1 Pty Ltd (in liq) (No 2) [2021] FCA 1314 at [57] (Downes J). For present purposes, it is sufficient to refer to the following distillation of those principles provided by Wigney J in Shanahan No.1 at [18], which distillation I respectfully adopted in Shanahan No. 2 at [22] and do so also in this proceeding:

… First, the Court has a discretion to provide a trustee or receiver with directions or advice. Second, it is generally inappropriate to exercise that discretion where the trustee or receiver in effect simply want reassurance about a business or commercial decision. Third, it may be appropriate to exercise the discretion where the trustee or receiver requires guidance on an issue of legal judgment or legal procedure. Fourth, the effect of the direction or advice given by the Court is to sanction the proposed course of action of the trustee or receiver so that they may take that course free from the risk of personal liability for breach of duty.

17    I note also that in Mariconte v Batiste [2000] 48 NSWLR 724; [2000] NSWSC 288 at [76], Austin J relevantly stated:

Where a receiver is appointed under statutory provisions, the function of the Court on an application for directions is analogous to its function with respect to a provisional liquidator: Sanderson v Classic Car Insurances Pty Ltd (1985) 10 ACLR 115; Law Society of New South Wales v Milios (1999) 48 NSWLR 409. In performing that function, it is appropriate for the Court to give directions in order to provide guidance to the receiver, not only on matters of law but also on the propriety or reasonableness of the contemplated exercise of discretion.

D.     Consideration

18    It is the fourth of the four principles distilled by Wigney J in Shanahan No.1 at [18], set out at [16] above, that is of most significance for the Judicial Advice Application. By reason of Mr Wilcox’s filing of the application for a review of the decision of the Trustees to realise the assets of his estate and the applications he has made instanter at the hearing today, it is readily apparent that a dispute has arisen, and the decisions of the Trustees and Receivers are the subject of a challenge on the basis of their propriety and reasonableness.

19    In those circumstances, I am satisfied that it is appropriate to consider whether, in the exercise of discretion, the judicial advice sought by the Trustees and Receivers should be given. This is not merely a matter of commercial judgment, but rather the exercise of a discretion in circumstances where there is an existing, and are likely to be further, challenges to the decisions of the Trustees and Receivers.

20    In his affidavit, Mr Wilcox gives evidence of the significant connection that he has to Barwon Vale, which has been in his family for a period of more than 100 years. There has been, over the years, significant litigation involving Mr Wilcox’s late mother’s estate, and for several years, at least since he was injured in a motor vehicle accident in January 2009, Mr Wilcox’s ability to operate Barwon Vale appears to have been significantly affected.

21    The original debt in relation to which the sequestration order was made appears to have been in the vicinity of only $60,000. Unfortunately, however, since that time, the liabilities of Mr Wilcox’s estate have significantly increased. As at 22 April 2026, the Trustees had admitted proofs of debt in the overall amount of $102,014.63 filed by McIntyre Legal and Harland/Wye. In addition, as at 22 April 2026, there remained two proofs of debt yet to be determined: a proof of debt in the amount of $319,133.35 lodged by Oliveri Lawyers and a proof of debt in the amount of $67,450.79 lodged by Ronald Czinner.

22    As at 23 February 2026, the known fees and disbursements of the Trustees with respect to the estate of Mr Wilcox, including legal costs and disbursements of Peterson Haines, exceeded $800,000. Moreover, Ms Peterson has estimated that future fees and disbursements of the Trustees to finalise the bankruptcy of Mr Wilcox will exceed $230,000. In addition, Ms Peterson has calculated that the known fees and disbursements of the Receivers, as at 23 February 2026, exceeded $300,000, and her estimate of further fees to finalise the receivership exceeds $40,000.

23    Sanderson Estates does not appear to have any existing creditors.

24    In circumstances where (a) there is no current application for finance by Mr Wilcox to enable an annulment of his bankruptcy, notwithstanding the extent of the attempts that he has made over the last two-and-a-half years to arrange such financing, and (b) there is no evidence before me of any other basis upon which the bankruptcy of Mr Wilcox could be annulled, the course proposed by the Trustees and Receivers, that is, to sell Barwon Vale in one line, appears to be a justifiable and reasonable approach.

25    While in the usual course, it would be desirable to sell the minimum number of assets necessary in order to enable creditors and other fees of the bankruptcy and receivership to be paid in full, the circumstances of the lots comprising Barwon Vale, explored below, are such that I am satisfied that a sale in one line is reasonable and appropriate.

26    Upon appointment, the Trustees have explored the possibility of selling the Bankrupt’s Lots separately from the rest of Barwon Vale.

27    On 24 January 2024, the Trustees requested Brian McAneney, a rural property specialist at Elders, to advise them as to whether it was possible to sell the Bankrupt’s Lots separately “without too much hassle/cost” or, alternatively, whether Barwon Vale should be sold in one line, in which case the Trustees would apply to be appointed as the Receivers over the lots owned by Sanderson Estates. Later that day, Mr McAneney advised that it was extremely difficult to ascertain if a sale of the Bankrupt’s Lots would yield the type of result that the Trustee required because they were not fenced on the internal boundaries and appeared to comprise the more heavily timbered country, and the availability of sufficient water to run stock was unknown. Mr McAneney further advised that his primary concerns were (a) whether the sale of the Bankrupt’s Lots would yield enough for Mr Wilcox’s estate to clear its liabilities, (b) whether selling the Bankrupt’s Lots separately would cruel the main farm’s viability and devalue the balance of Barwon Vale, (c) that buyers would want clarity and, therefore, surveyors would need to determine the boundary and, ideally, the Bankrupt’s Lots would need to be fenced, (d) a possible lack of legal access on to the Walgett/Carinda Road, and (e) the lack of certainty as to whether Barwon Vale could be divided and owned by another party without an agreement of all parties listed in the “piped and troughed water scheme that Barwon Vale enjoys”, which may cover part of the Bankrupt’s Lots. Mr McAneney concluded his initial advice to the Trustees with the following comment:

In closing Chris Malone and I had a phone call with Benjamin Wilcox at the beginning of last year and he signed an agency agreement authorising us to sell the whole of the property, I’m still of the believe that that is the understanding. As Benjamin is the sole director and shareholder of the company that owns the balance of the land, I don’t believe that it is in his best interest to sell only part of it in this matter.

28    On 28 February 2024, the Trustees received a letter from Mr McAneney, in which he confirmed that (a) Elders considered that Barwon Vale should be sold in one line, (b) selling the Bankrupt’s Lots separately “doesn’t make any commercial sense”, and (c) Barwon Vale “is worth so much more as a whole than it would be if sold in parts”.

29    Since the initial advice from Elders was sought, the Trustees and Receivers have obtained expert valuation advice to assist them in maximising the proceeds of any sale of Barwon Vale.

30    In the rural valuation report received by the Trustees and Receivers on 6 April 2026, the rural valuer, Opteon, estimated the market value of the Bankrupt’s Lots to be $1 million. That valuation report, however, noted the potential difficulty of selling the Bankrupt’s Lots separately from the other seven lots, comprising Barwon Vale, considering that they are fragmented and kilometres apart, unfenced, with one of the lots having no formed road access, no boundary fencing and being situated on a floodplain, which Opteon considers would likely deter prospective purchasers.

31    Opteon also concluded that selling the Bankrupt’s Lots independently of the balance of Barwon Vale would give rise to an extended selling period of some 12 to 24 months, in contrast to an estimated selling period of (a) some 12 to 15 months, if the Bankrupt’s Lots were sold after an estimated $210,000 to $310,000 was spent establishing boundary fencing, and (b) six months, if Barwon Vale was sold in one line.

32    Opteon also concluded that (a) the most saleable and highest value method of sale of the lots comprising Barwon Vale would be a sale in one line, as a whole property, and (b) if the Bankrupt’s Lots were sold separately, “a discounted value of $950,000 (approximately) may be reflected”, which represents a discount on the grazing rate for the Bankrupt’s Lots from $1,500/ha (if Barwon Vale was sold in one line) to $750/ha (if the Bankrupt’s Lots were sold separately from the balance of Barwon Vale).

33    Similarly, in a sales and marketing proposal report received by the Trustees and Receivers in February 2026, Elders noted (a) the absence of legal access to one of the Bankrupt’s Lots, (b) the isolation of that lot from other Bankrupt’s Lots, which would significantly inhibit its value, and (c) the marginal increase in the value of the Bankrupt’s Lots, if they were fenced and surveyed. Elders also estimated that the auction campaign would take some six weeks, but it would not be possible to determine a timeline for the sale of the Bankrupt’s Lots, given they were non-contiguous and unfenced, which would lead to a great reduction in the potential buyer pool.

34    Elders confirmed that they “firmly believe” that if the Bankrupt’s Lots were sold separately from the other lots, comprising Barwon Vale, it would devalue the rest of Barwon Vale and have a knock-on effect of removing interested parties from the sales process.

35    I am satisfied, on the material before me, that it is not in Mr Wilcox’s interest for there to be any sale of the Bankrupt’s Lots independently of the balance of Barwon Vale. The potential prejudice to him is in the vicinity of $1 million (being the difference between the grasing rate of $1,500/ha, if Barwon Vale was sold in one line, and $750/ha, if the Bankrupt’s Lots were sold separately from the balance of Barwon Vale) and it is a prejudice that the trustees and receivers are concerned to ensure does not arise. On any view, Mr Wilcox ultimately is going to be the principal beneficiary of the sale of Barwon Vale, and the Trustees and Receivers appropriately are concerned to ensure that his interest is not prejudiced in circumstances where there is no viable option before me, on the evidence that has been adduced, of obtaining finance to secure funds to enable an annulment of the bankruptcy of Mr Wilcox.

36    In his submissions at the hearing today, Mr Roche urged me to grant a stay for a period of six weeks of any judicial advice I might provide to the Trustees and Receivers that they are justified in marketing and selling Barwon Vale in one line. I am satisfied both that (a) it is in Mr Wilcox’s ultimate interest for Barwon Vale to be sold expeditiously in one line to limit as much as possible further liabilities being incurred to the Trustees and Receivers for their remuneration and disbursements, and (b) as submitted by Mr Koch for the Trustees and Receivers, it is most unlikely that, in any event, any contract would be entered into in the next six weeks, given the minimum sale campaign which would ensue if the judicial advice sought by the Trustees and Receivers was given.

37    In those circumstances, if Mr Wilcox is able to secure committed financing from a third party to enable an annulment of his bankruptcy, that may provide an opportunity for annulment of his bankruptcy before any contract for sale of Barwon Vale was entered into, particularly in circumstances where the sale of rural properties, as foreshadowed in the valuation evidence received by the Trustees and Receivers, can take many months, even if the property is marketed for sale in one line.

E.    Disposition

38    For these reasons, orders substantially in the form sought by the Trustees and Receivers in the Judicial Advice Application are to be made, and the applications made instanter by Mr Wilcox for a stay of any decision of the Trustees notified to Mr Wilcox at any time prior to the hearing today to realise the assets of his estate and for a stay of the orders for judicial advice I have provided to the Trustees and Receivers be dismissed.

Associate:

Dated:    23 July 2026