Federal Court of Australia

Lucky v Ives [2026] FCA 995

ORDERS

THE COURT ORDERS THAT:

1.    The order made by Registrar Morgan on 13 November 2025 that the estate of Mr Ben Ives (also known as Benjamin John Ives) be sequestrated under the Bankruptcy Act 1966 (Cth) be affirmed.

2.    The order made by Needham J on 5 December 2025 that the orders made by Registrar Morgan on the 13 November 2025 be stayed until the hearing and determination of an application for review under r 3.11 of the Federal Court Rules 2011 (Cth), or until further order of the Court, be vacated.

3.    The costs of the applicant, Mr Utaariki Mave Lucky, in this proceeding be assessed and taxed from the bankrupt estate of the respondent, Mr Ben Ives, in accordance with the Act.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

WIGNEY J:

1    On 13 November 2025, a Registrar of this Court made an order, on the application of Mr Utaariki Mave Lucky as applicant and petitioning creditor, that Mr Ben Ives (also known as Benjamin John Ives) be sequestrated under the Bankruptcy Act 1966 (Cth) (the Act). The act of bankruptcy that gave rise to Mr Ives’ sequestration arose from his failure to comply with a bankruptcy notice issued on 18 March 2025 and served on Mr Ives on 24 March 2025. The bankruptcy notice identified or was based on a debt of $50,558.17 owed by Mr Ives to Mr Lucky. That debt arose from a costs order made in Mr Lucky’s favour against Mr Ives in proceedings in this Court.

2    Mr Ives has applied for a review of the Registrar’s decision and sequestration order pursuant to ss 35A(5) and 35A(6) of the Federal Court of Australia Act 1976 (Cth) and r 3.11 of the Federal Court Rules 2011 (Cth). On 5 December 2025, Needham J, sitting as duty judge, stayed the orders made by the Registrar until the hearing and the determination of Mr Ives’ application for review of the sequestration order.

3    A review of a Registrar’s decision is a proceeding in the original jurisdiction of this Court which proceeds as a hearing de novo of the matter which was before the Registrar in question. In the case of the review of a sequestration order made by a Registrar, the review proceeds in effect as a rehearing the creditor’s petition. The review applicant is not required to prove error or omission on the part of the Registrar and the parties are not restricted to the evidence adduced or the arguments that had been advanced before the Registrar: see Bechara v Bates [2021] FCAFC 34; (2021) 286 FCR 166; Robson v Body Corporate for Sanderling at Kings Beach CTS 2942 [2021] FCAFC 143; (2021) 286 FCR 494.

4    Mr Ives claimed that, until he received a communication from the Court shortly before the hearing, he believed that he would be able to challenge the Registrar’s decision on the basis that the Registrar had denied him procedural fairness. He appeared to suggest that, because he was unaware that his review application would proceed as a hearing de novo, he had been denied procedural fairness in this proceeding because he had been denied the opportunity to pursue his claims about how the Registrar had dealt with the hearing of the creditor’s petition. He also claimed, in that context, about what he maintained was the late service by Mr Lucky of a court book containing relevant documents.

5    There is no merit in those submissions. It is not entirely clear how Mr Ives intended to pursue his review application given that he did not file or serve any evidence or submissions in accordance with the Court’s orders. Nor did he comply with an order requiring him to identify the material upon which he relied in support of his application. Despite that, Mr Ives was permitted to rely on the material that he had relied on before the Registrar and was able to advance any argument he wanted to advance in opposition to the creditor’s petition. He was also permitted to tender additional documents which he had not previously served or filed. As for the court book, it was served in accordance with the Court’s orders and contained documents that had previously been served on Mr Ives, along with all the material he had relied on before the Registrar. He could not sensibly claim that he was taken by surprise by any material in the court book. He suffered no practical injustice. Moreover, he did not apply for an adjournment either on the basis of his supposed ignorance of the nature of the proceeding or the service of the court book.

HEARING OF THE CREDITOR’S PETITION

6    The matters that must be proved on the hearing of a creditor’s petition are set out in s 52(1) of the Act:

52     Proceedings and order on creditor’s petition

(1)     At the hearing of a creditor’s petition, the Court shall require proof of:

(a)     the matters stated in the petition (for which purpose the Court may accept the affidavit verifying the petition as sufficient);

(b)     service of the petition; and

(c)     the fact that the debt or debts on which the petitioning creditor relies is or are still owing; and, if it is satisfied with the proof of those matters, may make a sequestration order against the estate of the debtor.

7    I am satisfied that Mr Lucky has proved each of the matters identified in s 52(1) of the Act.

8    The matters stated in the creditor’s petition are verified by an affidavit of Mr Lucky dated 23 May 2025. That appears in, or forms part of, the creditor’s petition itself. Mr Ives did not dispute any of the matters stated in the creditor’s petition, or at least did not adduce any evidence, or advance any comprehendible submissions, which cast any doubt on the matters stated in the verifying affidavit.

9    There is evidence that the creditor’s petition was served on 28 May 2025: see the affidavit of Ms Talysha Sabatino dated 1 June 2025. Mr Ives did not dispute service of the petition.

10    An affidavit sworn by Mr Lucky and dated 17 July 2026 is sufficient to prove that the debt upon which Mr Lucky relies in the creditor’s petition is still owing. Mr Ives appeared to complain about the late service of that affidavit, however late service of an affidavit proving the debt is effectively required by the relevant rules to which reference will shortly be made. In any event, Mr Ives did not adduce any evidence, or advance any comprehendible submissions, which provided any basis for disputing that the relevant debt was still owing.

11    Rules 4.04 to 4.06 of the Federal Court (Bankruptcy) Rules 2016 (Cth) impose some procedural and evidentiary requirements in respect of the hearing and determination of creditor’s petitions. I am satisfied that each of the requirements in those rules has been satisfied.

12    Rule 4.04 of the Bankruptcy Rules provides as follows:

4.04 Creditor’s petition founded on failure to comply with bankruptcy notice etc.

(1)     If a creditor’s petition is founded on an act of bankruptcy specified in paragraph 40(1)(g) of the Bankruptcy Act, the petition must also be accompanied by:

(a)     an affidavit stating:

(i)     that the records of the Court and the records of the Federal Circuit Court have been searched and no application in relation to the bankruptcy notice has been made; or

(ii)     that an application was made in the Court or in the Federal Circuit Court (as the case may be) for an order setting aside the relevant bankruptcy notice and the application has been finally decided; or

(iii)     that an application was made in the Court or in the Federal Circuit     (as the case may be) for an order extending the time for compliance with the bankruptcy notice and the application has been finally decided; and

(b)     an affidavit of service of the relevant bankruptcy notice.

(2)     If an affidavit required by paragraph (1)(a) states the matters referred to in subparagraph (1)(a)(i), a copy of the search must be attached to the affidavit.

(3)     If an affidavit required by paragraph (1)(a) states that an application referred to in subparagraph (1)(a)(ii) or (iii) was made, a copy of the order finally deciding the application must be attached to the affidavit.

(4)     A copy of the bankruptcy notice must be attached to the affidavit required by paragraph (1)(b).

13    There is evidence that the creditor’s petition was accompanied by, and served together with, an affidavit of Mr Willem Britz dated 27 May 2025. That affidavit includes the relevant statement specified in r 4.04(1)(a)(i) and attaches the search referred to in r 4.04(2) of the Bankruptcy Rules. The petition was also accompanied by an affidavit of service of the relevant bankruptcy notice: see the affidavits of Ms Sabatino dated 30 March 2025 and 1 June 2025.

14    Rule 4.05 of the Bankruptcy Rules provides as follows:

4.05    Documents to be served

Unless the Court otherwise orders, at least 5 days before the date fixed for the hearing of a creditor’s petition, the applicant creditor must serve on the respondent debtor:

(a)     the creditor’s petition; and

(b)     a copy of the affidavit, or affidavits, verifying the petition required by subsection 47(1) of the Bankruptcy Act; and

(c)     if applicable, a copy of the affidavits relating to the petition required by rule 4.04; and

(d)     a copy of any consent to act as trustee of the debtor’s estate filed under section 156A of the Bankruptcy Act.

15    The affidavit of Ms Sabatino dated 1 June 2025 proves the service on Mr Ives of each of the documents referred to in r 4.05 within the requisite time.

16    Rules 4.06 (1) to (4) of the Bankruptcy Rules provide as follows:

4.06 Additional affidavits to be filed before hearing

(1)     Before the hearing of a creditor’s petition, the applicant creditor must comply with this rule.

(2)     The applicant creditor must file an affidavit that:

(a)     states that the documents required to be served under rule 4.05 have been served, and when and how they were served; and

(b)     has attached to it a copy of the documents that were served and proof of service in relation to the documents.

(3)     The applicant creditor must file an affidavit, of a person who has, no earlier than the day before the hearing date for the petition, searched, or caused a search to be made, in the National Personal Insolvency Index, that:

(a)     sets out the details of any references in the Index to the debtor; and

(b)     states that there were no details of a debt agreement, about the debt on which the applicant creditor relies, in the Index:

(i)     on the day when the petition was presented; and

(ii)     on the day when the search was made; and

(c)     has attached to it a copy of the relevant extract of the Index.

(4)     The applicant creditor must file an affidavit of a person who knows the relevant facts that:

(a)     was sworn as soon as practicable before the hearing date for the petition; and

(b)     states that each debt on which the applicant creditor relies is still owing.

17    An affidavit complying with r 4.06(2) has been filed on Mr Lucky’s behalf: see the affidavit of Ms Sabatino dated 1 June 2025. That affidavit attaches a relevant consent to act as trustee.

18    As for rr 4.06(3) and 4.06(4), Mr Lucky has filed the following affidavits, each of which proves the matters referred to in those subrules: first, an affidavit sworn by Mr Lucky on 17 July 2026 which proves that the debt referred to in the creditor’s petition is still owing; and second, an affidavit sworn by Mr Richard Lyne on 17 July 2026 that deposes his search of the National Personal Insolvency Index which revealed that there were no recorded details of any debt agreement. A relevant extract from the Index is attached to that affidavit.

19    I am satisfied that all the matters in s 52(1) of the Act have been proved and that Mr Lucky has complied with all the relevant evidentiary and procedural requirements in the Bankruptcy Rules. Subject to Mr Ives’ grounds of opposition to the creditor’s petition, the petition should be granted and a sequestration order should be made.

Mr Ives’ opposition to the creditor’s petition

20    On 18 February 2026, Mr Ives was ordered by the Court to file and serve a list of all the affidavits he intended to read and all the documentary evidence he proposed to tender at the hearing of his review application. He was also required to file and serve any further evidence upon which he proposed to rely by 18 May 2026. He did not comply with the order requiring him to file a list of affidavits and documents and did not file or serve any additional affidavits or documents in accordance with the Court’s orders.

21    On the morning of the hearing of the review application, Mr Ives emailed two documents to the Court. Those documents were provided to Mr Lucky’s solicitor. The documents comprised a bill of costs dated 7 June 2024 and signed by Mr Lucky’s solicitor, and the transcript of a hearing before Jackman J on 8 December 2023, that being the hearing following which his Honour ordered Mr Ives to pay Mr Lucky’s costs. It is the debt arising from that costs order that is the subject of the bankruptcy notice and creditor’s petition. The bill of costs was prepared and filed by Mr Lucky’s solicitor for the purpose of the assessment of that costs order.

22    Despite Mr Ives’ failure to comply with the Court’s order made on 18 February 2026, it is appropriate to proceed on the basis that Mr Ives continues to rely on the Notice stating grounds of opposition to the petition which he relied on before the Registrar. Mr Ives confirmed at the hearing that he continued to rely on that Notice. It is also appropriate to permit Mr Ives to rely on the affidavit evidence upon which he relieved before the Registrar in support of the grounds of opposition referred to in the Notice. That evidence comprised two affidavits affirmed by Mr Ives, the first dated 30 June 2025 and the second dated 11 August 2025. Despite late service of the additional documents upon which Mr Ives now relies (the bill of costs and the transcript of the hearing before Jackman J), I propose to allow Mr Ives to rely on those documents in opposition to the creditor’s petition. Mr Lucky did not object to the tender of those documents, though he did submit that they were of no relevance to the issues or contentions in Mr Ives’ Notice.

23    Mr Ives’ Notice identifies three grounds upon which he opposes the creditor’s petition. Those grounds are, in summary: first, that Mr Ives is solvent; second, that the creditor’s petition is an abuse of process; and third, that Mr Ives intends to file proceedings against Mr Lucky which would justify a stay of the petition.

24    Section 52(2) of the Act in effect sets out the grounds upon which a debtor may oppose a creditor’s petition. It provides as follows:

52 Proceedings and order on creditor’s petition

(1)    …

(2)     If the Court is not satisfied with the proof of any of those matters, or is satisfied by the debtor:

    (a)     that he or she is able to pay his or her debts; or

(b)     that for other sufficient cause a sequestration order ought not to be made;

it may dismiss the petition.

25    Mr Ives’ contentions that he is solvent essentially addresses the issue in s 52(2)(a) of the Act. The central issue is whether Mr Ives is able to satisfy the Court that he is able to pay his debts as and when they fall due. Mr Ives’ second and third grounds for opposition to the creditor’s petition are apparently directed to s 52(2)(b) of the Act. The issue is Mr Ives is able to satisfy the Court either that the creditor’s petition is an abuse of process, or that that he has a claim or counterclaim against Mr Lucky, that would constitute “sufficient cause” to dismiss the petition.

Some background facts

26    Before dealing with Mr Ives’ three grounds of opposition to the creditor’s petition, it is useful to briefly set out some facts which provide some important context to the allegations or contentions which form the basis of Mr Ives’ second and third grounds of opposition to the creditor’s petition. Those facts are either ineluctable, uncontested or supported by evidence adduced by Mr Lucky in this proceeding.

27    Prior to December 2024, Mr Ives and Mr Lucky were the directors of Chief Trade Credit Insurance Pty Ltd. Chief conducted a trade credit insurance broking business. A company associated with Mr Ives, Benives Asset Management Pty Ltd (BAM) held 50% of Chief’s issued share capital. A company associated with Mr Lucky, Luta Investments Pty Ltd, held the remaining 50% of the share capital.

28    By December 2024, the working relationship between Mr Ives and Mr Lucky had broken down. That relationship breakdown led to various issues in respect of the ongoing management of Chief. That ultimately led Mr Lucky to commence two sets of proceedings in this Court.

29    In the first proceeding, Mr Lucky successfully sought, on an urgent basis, an order pursuant to s 237 of the Corporations Act 2001 (Cth) for leave to defend certain proceedings in this Court (the Marketlend proceedings) that had been commenced against Chief by one of its former clients, Marketlend Pty Ltd: see Lucky v Ives [2023] FCA 1571 (Lucky v Ives (No 1)). The breakdown in the relationship between Mr Lucky and Mr Ives had effectively prevented Chief from filing a defence in those proceedings and the Court was on the verge of entering a default judgment against it. It was in Lucky v Ives (No 1) that the costs order that gave rise to the debt in the bankruptcy notice and creditors petition was made by Jackman J. A subsequent application by Mr Ives to set aside or vary that costs order was dismissed by Jackman J with costs: see Lucky v Ives (No 3) [2024] FCA 1124.

30    In the second set of proceedings commenced in this Court, Mr Lucky and Luta commenced proceedings seeking an order, pursuant to s 461(1)(k) of the Corporations Act, that Chief be wound up on just and equitable grounds. The basis of that application was the irretrievable breakdown in the relationship between Mr Lucky and Mr Ives and the consequential deadlock in respect of the management of the company. On the eve of the hearing of that application on 18 December 2024, Mr Ives resigned as a director of Chief. As a result, the application was dismissed, however Jackman J ordered Mr Ives to pay the costs of the proceedings on an indemnity basis: see Lucky v Ives (Winding Up Application) [2024] FCA 1501 (Lucky v Ives (WU)).

31    As discussed in more detail later, in both sets of proceedings Mr Ives made a series of sweeping allegations against Mr Lucky and others concerning the conduct of the proceedings. Those allegations were found by Jackman J to be without any evidentiary foundation and were accordingly rejected. Mr Ives repeated and rehearsed many of those accusations against Mr Lucky and others in this proceeding, again without any evidentiary foundation. Mr Ives did not appeal, or seek leave to appeal, any of the judgments of Jackman J, or otherwise have any of the orders made by Jackman J set aside on the basis of any alleged act or omission by Mr Lucky or his legal advisers in respect of the conduct of the proceedings.

32    On 24 March 2025, Chief was placed into voluntary administration. Subsequently, on 8 May 2025, the creditors of Chief voted to accept a deed of company arrangement (‘DOCA’) which had been proposed by Luta. That DOCA was executed on 8 May 2025. It is unnecessary for present purposes to consider the terms of the DOCA in any detail. It is sufficient to note that it provided for the distribution of Chief’s “available property” (as defined in the DOCA), to Chief’s creditors. Following the distribution of the available property, the “remaining assets” of Chief (again as defined in the DOCA) were to be assigned to Luta. As events transpired, the remaining assets of Chief included a debt of at least $239,849 which was said to be owing by Mr Ives to Chief. That debt was said to arise from a loan account which Mr Ives had with Chief. Money was paid to Mr Ives and debited to that loan account in lieu of his receipt of a salary from Chief. Mr Lucky had a similar arrangement and a similar loan account with Chief. In accordance with the terms of the DOCA, the debt that Mr Ives owed to Chief was assigned to Luta. As a result, Mr Ives owes (or is at least said to owe) at least $239,849 to Luta. That is relevant when consideration is given to Mr Ives’ contention that he is solvent.

33    Mr Ives has made a number of series of serious allegations against Mr Lucky and others in respect of the management of Chief, the appointment of the administrators to Chief and the entry into and execution of the terms of the DOCA. As discussed later, none of those serious allegations was the subject of any probative or cogent evidence in this proceeding. Moreover, there is no evidence to suggest that Mr Ives commenced any proceedings against Mr Lucky or anyone else in respect of the management of Chief, or the appointment of the administrators to Chief, or the entry into and execution of the DOCA, or the actions of the administrators in respect to the implementation of the DOCA.

Mr Ives’ solvency

34    It is uncontroversial that Mr Ives bears the onus of proving that he is able to pay his debts for the purposes of s 52(2)(a) of the Act. That essentially requires him to prove that he is able to pay his debts as they fall due, utilising such cash resources as he has or can command: see Sandell v Porter [1966] HCA 28; (1966) 115 CLR 666 at 670. It is important to emphasise that the debts that Mr Ives must prove that he is able to pay are not limited to the debt the subject of the creditor’s petition. They include not only that debt, but the debts that arise, or are likely to arise, as a result of the costs orders made in in Lucky v Ives (No 3) and Lucky v Ives (WU), which have not yet been assessed but are likely to be substantial. As already noted, Mr Ives has not applied for leave to appeal those costs orders. The Registrar who made the sequestration order also subsequently ordered Mr Ives to pay Mr Lucky’s costs of the creditor’s position, which he assessed at $15,716.14. That costs order has not been stayed and remains unpaid. Mr Ives’ debts also include the substantial debt owed to Luta. Mr Ives did not adduce any evidence, or advance any comprehendible submissions, to suggest that he did not owe that debt to Luta.

35    While it may perhaps be accepted that Mr Ives is not currently indebted to Mr Lucky in respect of the costs orders made in Lucky v Ives (No 3) and Lucky v Ives (WU), I am satisfied Mr Ives’ debts relevantly include the debt he owes to Luta. He is also currently liable to pay the amount of the costs order made and assessed by the Registrar. In any event, it scarcely matters whether Mr Ives is liable to pay those other costs orders or the debt owed to Luta because I am in any event not satisfied that Mr Ives is able to pay the debt that is the subject of the creditors petition, let alone any other debts that he may owe Mr Lucky or anyone else.

36    The evidence apparently relied on by Mr Ives to prove his solvency is, on just about any view, woefully inadequate. It is of dubious admissibility and of little or no probative value. It does not extend beyond the tender of a document apparently created by him which supposedly shows an amount of money that was owed or due to be paid to either Barrett Broking Pty Ltd, or perhaps some other entity referred to by Mr Ives as “Icapsure”, in August 2025 in respect of commission. Mr Ives claimed that Barrett Broking and Icapsure were entities through which, or in association with which, he provided trade credit insurance broking services. There is, however, no probative evidence as to the relationship between Mr Ives and Barrett Broking, or Icapsure, let alone any evidence to suggest that money owed or payable to those entities was money which Mr Ives could utilise to pay his personal debts. Nor was there any evidence in respect of the financial position of either Barrett Broking or Icapsure.

37    In any event, the fact that some funds may have been payable to Barrett Broking, or to Icapsure, or even to Mr Ives, in August 2025 is hardly sufficient, without more, to prove that Mr Ives is currently able to pay his debts. Mr Ives maintained, in his submissions, that the evidence concerning the amounts payable in August 2025 was merely illustrative and indicated that similar amounts were payable in other months. He suggested that he had not adduced any evidence in respect of any further amounts because that evidence was commercially confidential. Those submissions were unsupported by evidence. The fact remains that there was no evidence that Mr Ives had received or was entitled to receive sufficient funds from any insurance broking business he was involved with to enable him to pay his debts as they fall due.

38    The other evidence relied on by Mr Ives in his support of his contention that he is solvent was evidence that he claimed indicated that he continues to own 50% of the issued shares in Chief. There are at least two fundamental difficulties faced by Mr Ives in respect of that supposed evidence. The first problem is that the evidence in fact shows that the shares in question are, or at least were, owned by BAM, not Mr Ives personally. Mr Ives advanced various submissions concerning the ownership of, or his association with, BAM, however those submissions were again not supported or substantiated by any evidence. There is, in any event, no evidence concerning the financial position of BAM.

39    The second problem is that there is no evidence that, following the execution of the terms of the DOCA, including the transfer of Chief’s remaining assets to Luta, that the shares in Chief that are owned by BAM have any value. Nor was there any evidence to suggest that the shares held by BAM could readily be sold so the proceeds of sale could be used to pay Mr Ives’ debts as they fall due.

40    Mr Ives has otherwise failed to adduce any evidence whatsoever of his cash resources or other assets that may be realised or utilised by him to pay for any of his debts. Nor has he adduced any evidence concerning other debts that he may owe.

41    I am, in those circumstances, not satisfied that Mr Ives is able to pay the debt owing to Mr Lucky which is the subject of the creditor’s petition, let alone the debt payable to Luta as a result of the assignment by the administrators of Chief of the debt previously owed by Mr Ives to Chief, or the debts arising or likely to arise from the other costs orders made against Mr Ives, including the costs order made by the Registrar which has been assessed and has not been stayed. Mr Ives’ objection to the creditor’s petition based on his solvency accordingly fails.

Abuse of process

42    Mr Ives’ contention that the Mr Lucky has been abusing the Court’s processes is not only misconceived, but also baseless and wholly unsupported by any, or any probative or cogent, evidence.

43    It might perhaps be accepted that, if Mr Ives was able to prove that Mr Lucky was using the creditor’s petition for an improper or collateral purpose, as opposed to the purpose of recovering a debt owing to him, that would provide a sufficient cause to dismiss the creditor’s position. Mr Ives, however, does not contend that Mr Lucky is pursuing the creditor’s petition for an improper or collateral purpose. Rather, in his Notice he contends that Mr Lucky has engaged in “serial proceedings across multiple files to avoid scrutiny or misconduct”. Those “files” are the various proceedings, referred to earlier, that have been heard by Jackman J and determined adversely to Mr Ives. The “files” also include the Marketlend proceedings. Mr Ives contends in his Notice that in those proceedings Mr Lucky has “concealed material information”, breached disclosure obligations, and failed to inform the Court of various matters. Those acts or omissions were said to constitute and abuse of process in those proceedings.

44    It is somewhat difficult to accept that Mr Ives’ allegations concerning Mr Lucky’s acts or omissions in other proceedings would provide sufficient cause to dismiss the creditors petition even if those allegations had any substance and were able to be proved. If Mr Lucky had engaged in any improper conduct in respect of his conduct of other proceedings, the proper course would be for Mr Ives to raise those matters in the other proceedings. He has not done so. He has not appealed, or sought leave to appeal, any of the orders made by Jackman J, including the costs order that has given rise to Mr Ives’ indebtedness that is the subject of the creditor’s petition. Nor has he taken any other step to set aside or vary any of those orders, other than the unsuccessful attempt which is the subject of the judgment in Lucky v Ives (No 3).

45    It is, in any event, unnecessary to explore further whether Mr Ives’ allegations concerning Mr Lucky’s abuse of process in other proceedings could provide a basis for refusing to make a sequestration order. That is because Mr Ives has, in any event, failed to adduce any, or any probative or cogent, evidence in respect of those allegations. To the extent that there is any evidence in respect of those allegations, that evidence rises no higher than bare assertion or unfounded conjecture and speculation.

46    The evidence, such as it is in Mr Ives’ affidavits, rises no higher than bare argumentative allegation or assertion. In one affidavit, he simply asserts that the conduct of Mr Lucky involved “attempts to conceal material information from [Mr Ives] and the Court and to manipulate proceedings for collateral advantage”. He also asserts that the appointment of the administrator to Chief demonstrated that Mr Lucky’s winding up application was a “collateral tactic to avoid responsibility and scrutiny”. In the other affidavit, Mr Ives provides a contentious summary of the proceedings before Jackman J and merely asserts that Mr Lucky’s solicitor “omitted material facts that ought to have been before Justice Jackman at the hearing”. Those “material facts” supposedly related to whether the solicitor had a relevant conflict of interest at the time. The bare assertions and allegations in Mr Lucky’s affidavits are not supported by any of the documentary annexures. Nor are they supported by the other documentary evidence relied on Mr Ives, including the bill of costs and transcript.

47    Moreover, as adverted to earlier, most of the assertions and allegations outlined in Mr Ives’ affidavits and submissions in this proceeding were also advanced in the various proceedings before Jackman J. His Honour rejected them because they were unsupported by any evidence. For example, in Lucky v Ives (No 3) at [6], [7] and [10]-[12] Jackman J considered and rejected various claims by Mr Ives, including that: Mr Lucky had failed to disclosure certain facts; that evidence relied on by Mr Lucky in the proceeding was inaccurate or incomplete; and that Mr Lucky and his solicitors had acted improperly because the solicitors had a relevant conflict of interest.

48    Perhaps more significantly, in Lucky v Ives (WU), Jackman J noted that Mr Ives had foreshadowed resisting the winding-up application on the basis that Mr Lucky had “unclean hands” and was the person responsible for the breakdown in their relationship. In relation to those allegations, his Honour concluded as follows (at [9]-[10]):

… Mr Ives’ contention of unclean hands fails on the evidence. Mr Ives foreshadowed serving evidence on this matter at the case management hearings in the first half of November 2024, although Mr Ives’ evidence had initially been required to be filed and served by late October 2024. I granted Mr Ives further time to serve evidence by 22 November 2024, but, as matters transpired, no evidence was served on his part concerning any question of unclean hands or primary responsibility for the breakdown in the relationship.

In the absence of any evidence by Mr Ives, the contention as to unclean hands was hopeless. The proceedings against Chief upon which Mr Ives relied concerned allegedly negligent advice said to have been given by Mr Lucky in the course of conducting Chief’s insurance-broking business. There was no suggestion made in those proceedings of any dishonesty or of any misconduct by Mr Lucky in relation to Chief’s internal affairs. Even if the allegations of professional negligence made against Chief were established, that would not supply a good reason to decline to make a winding-up order on the just and equitable ground.

49    His Honour also concluded (at [16]) that:

The litigation has been unduly prolonged by groundless contentions on the part of Mr Ives to the effect that a winding up order would not be made in the Court’s discretion because of unclean hands or because of attributing more blame to Mr Lucky than to Mr Ives in causing the breakdown in their relationship.

50    As was the case in the proceedings before Jackman J, in this proceeding Mr Ives has failed to back up the any of the serious allegations he has levelled against Mr Lucky and Mr Lucky’s solicitors with any, or any probative or cogent, evidence.

51    In his submissions in this proceeding, Mr Ives appeared to concede, at least implicitly, that he did not have any evidence to back up his allegations. He claimed, or at least appeared to claim, that he had been unable to produce any such evidence because he had been unable to obtain the documents which would prove those allegations. He alleged in that regard, among other things, that he had been unable to obtain subpoenas to require production of those documents from Mr Lucky, or Mr Lucky’s lawyers, or the administrators. That allegation, which appears to have been mainly directed at the Registrar who made the sequestration order and a Registrar who was involved in the case management of this proceeding, was again unsupported by any probative evidence and is entirely meritless.

52    When Mr Ives’ review application came before me for a case management hearing on 18 February 2026, Mr Ives referred to his intention to seek subpoenas for the production of documents that would support his allegations of abuse of process and improper conduct on the part of Mr Lucky and others. He also foreshadowed filing further evidence in support of those allegations and indicated that he needed a lengthy adjournment of the review application to enable him to do so. In light of those submissions, I allowed Mr Ives three months in which to file his evidence and explained to him the process and procedures involved in seeking the Court’s leave to issue subpoenas. There is nothing in the evidence before me to suggest that Mr Ives sought to employ any of those procedures. There is certainly no evidence to suggest that he was denied the opportunity to seek to employ any of the Court’s processes to in order to obtain documents or other evidence to support his allegations. As noted earlier, Mr Ives did not file any further evidence, save for the two documents he produced on the day of the hearing.

53    In all the circumstances, I am not satisfied by any of the evidence relied on by Mr Ives that Mr Lucky had abused the Court’s processes, either in respect of the filing and prosecution of the creditor’s petition, or in the proceedings before Jackman J, or in the Marketlend proceedings. There is no evidence to suggest that Mr Lucky is prosecuting the creditor’s petition for any reason other than for the purpose of recovering a debt owed to him arising from the costs order made by Jackman J in Lucky v Ives (No 1) and effectively confirmed in Lucky v Ives (No 3). There is also no evidence, or no probative or cogent evidence, to support the many serious allegations which Mr Ives has levelled at Mr Lucky, Mr Lucky’s solicitors and others in respect of the conduct of the proceedings before Jackman J and the Marketlend proceedings. It follows that I am not satisfied that Mr Ives’ allegations concerning abuse of process by Mr Lucky provide any basis, let alone a sufficient basis, to refuse to make a sequestration order pursuant to the creditor’s petition.

The alleged claim or counterclaim against Mr Lucky

54    Mr Ives’ contention that he has a claim or counterclaim against Mr Lucky fares no better than his contention that Mr Lucky had engaged in conduct that constituted an abuse of process.

55    Mr Ives did not file any cross-claim or counterclaim against Mr Lucky in the two sets of proceedings that were heard by Jackman J. Nor did he have any direct involvement in the Marketlend proceedings. Perhaps more significantly, despite the considerable effluxion of time since the events that supposedly provide the basis for his claim or counterclaim against Mr Lucky and others, he has not commenced any proceeding. The claim or counterclaim referred in Mr Ives’ Notice is nothing more than a proposed claim or counterclaim.

56    Mr Ives’ contention that he has a claim or counterclaim against Mr Lucky appeared to be based on various allegations against Mr Lucky in respect of his conduct as a director of Chief. Those allegations appeared to concern or overlap with some of the events, claims or issues that were the subject of the Marketlend proceedings. As noted earlier, those proceedings involved claims by Marketlend against Chief. They have now been discontinued. The allegations also overlap with some of the allegations relied on by Mr Ives in support of his abuse of process claims against Mr Lucky, and some of them were also addressed in the proceedings before Jackman J.

57    It is again unnecessary to consider in detail Mr Ives’ various allegations against Mr Lucky and others that supposedly support his proposed claim or counterclaim. That is because those allegations are, as was the case with his submissions concerning abuse of process, wholly unsupported by any admissible or probative evidence. Mr Ives’ evidence in relation to the availability of his claim or counterclaim against Mr Lucky again rises no higher than bare assertion or unfounded conjecture or speculation.

58    The central allegation Mr Ives makes against Mr Lucky appears to concern Chief’s potential liability to Marketlend and Mr Lucky’s alleged failure to ensure that Chief had sufficient professional insurance coverage in respect of that potential liability. This allegation appears to have been aired by Mr Ives in the proceeding before Jackman J in which Mr Lucky sought leave to be permitted to defend Chief in the Marketlend proceeding. Justice Jackman essentially rejected the submissions advanced by Mr Ives in respect of this issue: see Lucky v Ives (No 1) at [6] and Lucky v Ives (No 3) at [6]-[8]. Mr Ives asserts (without any supporting evidence) that Mr Lucky failed to disclose to the Court the level of professional indemnity insurance that he had in fact arranged and that this deprived him of “any meaningful oversight of [Chief’s] legal risks and operations” and forced him to resign as a director. Even if those allegations were supported by evidence, as opposed to bare assertion, it is difficult to see how they could provide a sound basis for any claim by Mr Ives against Mr Lucky given the fact that the Marketlend proceedings have now been discontinued in any event.

59    In his second affidavit, Mr Ives asserted that he has a claim against Mr Lucky under the shareholders agreement between them in respect of their ownership of shares in Chief. Mr Ives claims that Mr Lucky breached that agreement, however it is unclear exactly what those alleged breaches are. They appear to have something to do with Mr Lucky being required to purchase Mr Ives’ shares after Mr Ives’ resignation as a director. Mr Ives’ evidence in respect of this claim, however, rise no higher than bare assertion and fails to address, among other things, how any such claim was impacted by the appointment of the administrators and the DOCA. It is difficult to see how Mr Ives’ shares in Chief would have any value after the DOCA.

60    Mr Ives also failed to explain why, if he has a cause of action against Mr Lucky for breach of the shareholders agreement, he has not commenced any proceeding against Mr Lucky in the over 18 months since his resignation as a director of Chief. Indeed, there is no evidence that Mr Ives has even made any demand against Mr Lucky in respect of any right arising under the shareholders agreement. Mr Ives again appeared to suggest that he had been unable to commence any such proceedings because he had been unable to obtain access to documents to support his claims. In particular, he appeared to suggest that his attempt to obtain leave to issue subpoenas has somehow been frustrated by the Court. That contention has already been addressed. It has no merit.

61    As noted earlier, Mr Ives repeated many of the allegations he advanced in respect of Mr Lucky’s alleged abuse of process in support of his contention that he had a claim or counterclaim against Mr Lucky. I have already found that those allegations were unsupported by any, or any probative or cogent, evidence. It is unnecessary to repeat what I said earlier in that regard. Mr Ives also made from the Bar table a series of serious and sweeping allegations against Mr Lucky, his solicitors and, it appears, the administrators of Chief. I do not propose to deal with those allegations as they were wholly unsupported by any evidence.

62    In all the circumstances, I am not satisfied that Mr Ives has any arguable claim or counterclaim against Mr Lucky that could or would provide any basis or cause, let alone a sufficient cause, to defer, delay or refuse to make a sequestration order against Mr Ives.

Conclusion in respect of Mr Ives’ grounds of opposition

63    I am not satisfied that there is any merit in any of Mr Ives’ grounds of opposition to the creditor’s petition. I am not satisfied that Mr Ives is able to pay his debts. I am also not satisfied that Mr Ives’ allegations and assertions that Mr Lucky has engaged in conduct that constitutes a relevant abuse of process, or his allegation that he has a claim or counterclaim against Mr Lucky, have any merit or provide a sufficient cause not to make the sequestration order.

CONCLUSION AND DISPOSITION

64    I am satisfied that Mr Lucky has proved all the matters in s 52(1) of the Act and has satisfied the relevant procedural and evidentiary requirements in the rules for the making of a sequestration order.

65    I am also not satisfied that Mr Ives is solvent or that there is any other sufficient cause not to make a sequestration order against Mr Ives pursuant to s 52(2) of the Act.

66    I propose in those circumstances to order that the sequestration order made by the Registrar on 13 November 2025 be affirmed. Given the terms of the order made by Needham J staying the sequestration order, it may strictly be unnecessary to vacate that order given that it will, in any event, lapse once I have determined the review application. I will, however, for abundant caution, vacate that order.

67    Mr Lucky sought his costs in respect of this proceeding. While the costs order was opposed by Mr Ives, he failed to advance any, or any meaningful, submissions as to why costs should not follow the event. In those circumstances, I propose to order that Mr Lucky’s costs be assessed or taxed and paid from Mr Ives’ bankrupt estate in accordance with the Act.

Associate:

Dated:    28 July 2026