Federal Court of Australia

Blakeley, in the matter of Global Capital Property Fund Limited (in liq) [2026] FCA 1124

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 54A(3) of the Federal Court of Australia Act 1976 (Cth), the report of Registrar Gronow dated 6 July 2026 is adopted in whole, save for the correction of the following typographical error – the figure of $1,277,317.10 is replaced with the figure $1,227,317.10 throughout the report.

2.    Pursuant to section 60–10(1)(c) of the Insolvency Practice Schedule (Corporations) (IPSC), being schedule 2 to the Corporations Act 2001 (Cth), the remuneration that the First Applicants are entitled to receive for the work properly performed in relation to the external administration of the Second Applicant for the period 3 October 2024 to 30 September 2025 be determined as:

(a)    the amount of $1,227,317.10 (excl GST) on account of remuneration; and

(b)    the amount of $64,791.30 (excl GST) on account of disbursements.

3.    Pursuant to s 60-20(3)(b) of the IPSC, to the extent necessary, leave is granted to the First Applicants to derive a profit or advantage from the external administration of the Second Applicant arising out of the payment of disbursements to FTI Consulting Technology (Sydney) Pty Ltd in the amount of $64,791.30 (excl GST) in respect of the processing of data and hosting of a ‘Relativity’ database.

4.    The costs of and incidental to this application be costs and expenses in the external administration of the Second Applicant and paid out of the assets of the Second Applicant.

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    By originating application dated 18 December 2025, the joint and several liquidators of Global Capital Property Fund Ltd (GCPF), Ross Andrew Blakeley and Kelly-Anne Trenfield of FTI Consulting (FTI), sought orders pursuant to s 60-10(1)(c) of the Insolvency Practice Schedule (Corporations) (IPSC), being Sch 2 of the Corporations Act 2001 (Cth) (Corporations Act), approving their remuneration and internal disbursements incurred in the liquidation of GCPF. The amounts claimed for the period from 3 October 2024 to 30 September 2025 (relevant period) were $1,227,317.10 for the liquidators’ remuneration and $64,791.30 for internal disbursements, exclusive of GST. The liquidators also sought leave under s 60-20(3)(b) of the IPSC to derive a profit or advantage from the external administration of GCPF to the extent that the internal disbursements gave rise to a contravention of s 60-20(1). The internal disbursements were for data processing and hosting a Relativity database, an e-discovery platform maintained by FTI Consulting Technology (Sydney) Pty Ltd (FTI Technology), a related entity of FTI.

2    In accordance with r 9.2 of the Federal Court (Corporations) Rules 2000 (Cth) (Corporations Rules), on 25 November 2025 the liquidators served a notice of their intention to apply for a remuneration determination under s 60-10(1)(c) of the IPSC and attached a report which detailed the remuneration and disbursements sought.

3    On 2 and 3 December 2025 respectively, two creditors of GCPF, Messrs Mark Johnstone and Keith Dorman (Objectors), gave notices of objection to the remuneration claimed. Mr Johnstone submitted that FTI should not profit at the expense of investors facing significant losses. He submitted that the proposed remuneration sought was excessive and would reduce returns to investors. Mr Dorman objected to the remuneration on the basis that the liquidation occurred through no fault of his own and that his superannuation represented many years of work.

4    In support of their application, the liquidators filed three affidavits made by Mr Blakeley. The first affidavit, affirmed on 24 November 2025, concerned the liquidators’ claim for remuneration and internal disbursements. The second affidavit, affirmed on 18 December 2025, concerned the steps taken by the liquidators to notify shareholders and creditors of the application, and the receipt of objections from Messrs Dorman and Johnstone. The affidavit affirmed on 22 April 2026 concerned the liquidators' application for leave under s 60-20(3)(b) of the IPSC in respect of internal disbursements and provided details of the fees charged by FTI Technology. The liquidators also relied on an affidavit made by their solicitor, Justin Vaatstra of Arnold Bloch Leibler, sworn 31 March 2026. Mr Vaatstra gave evidence about further correspondence with the two Objectors.

5    On 6 March 2026, the liquidators filed an outline of submissions in support of their application for approval of remuneration and internal disbursements under s 60-10(1)(c) of the IPSC.

6    On 22 April 2026, the liquidators filed written submissions in support of their application for leave under s 60-20(3)(b) of the IPSC in respect of any profit or advantage arising from internal disbursements paid to FTI Technology.

7    On 23 April 2026, Mr Johnstone sent an email to the Court and the parties containing a further brief submission. Mr Johnstone submitted that, while he did not disagree with the work completed or time spent by the liquidators’ staff on each task, acknowledging the complexity of the liquidation and specialised skillset required, he did disagree with the hourly rates charged. Mr Johnstone submitted that the rates were FTI’s standard rates and that, in the circumstances of a liquidation, reduced hourly rates were required.

8    Also on 23 April 2026, the liquidators filed submissions in reply to Mr Johnstone’s submission, noting that the professional fees incurred by the liquidators had been charged at a discount to FTI’s standard rates. The discounted rates had been proposed to ASIC and notified to the Court upon the liquidators’ appointment as Court-appointed liquidators.

9    For the reasons explained below, I am satisfied that a determination should be made specifying the liquidators’ remuneration for the relevant period in the amounts sought by the liquidators. I am also satisfied that leave should be granted pursuant to s 60-20(3)(b) of the IPSC for the liquidators to derive a profit or advantage from the external administration of GCPF to the extent that the internal disbursements for the processing of data and hosting of a Relativity database managed by FTI Technology caused them to directly or indirectly derive a profit or advantage in breach of s 60-20(1).

The liquidators’ Remuneration

10    Under s 60-5(1) of the IPSC, the liquidators are entitled to receive remuneration for necessary work performed by them in relation to the liquidation in accordance with a remuneration determination.

11    Section 60-10(1) provides as follows:

(1)     A determination, specifying remuneration that an external administrator of a company (other than an external administrator in a members’ voluntary winding up) is entitled to receive for necessary work properly performed by the external administrator in relation to the external administration, may be made:

(a)     by resolution of the creditors; or

(b)     if there is a committee of inspection and a determination is not made under paragraph (a) - by the committee of inspection; or

(c)     if a determination is not made under paragraph (a) or (b) - by the Court.

12    By their originating application, the liquidators have applied to the Court under s 60-10(1)(c) for a remuneration determination. Section 60-12 relevantly stipulates that, in making a remuneration determination under paragraph 60‑10(1)(c), the Court must have regard to whether the remuneration is reasonable, taking into account any or all of the matters referred to in section 60-12.

13    By orders made on 2 April 2026, I ordered that the following questions be referred to a Registrar of the Court for inquiry and report as a referee pursuant to s 54A of the Federal Court of Australia Act 1976 (Cth) (FCA Act):

(a)    is the amount of remuneration sought by the liquidators in respect of the relevant period, as set out in the Remuneration Approval Report dated 24 November 2025, reasonable taking into account any or all of the matters listed in s 60-12 of the IPSC; and

(b)    if not, what remuneration is reasonable?

14    I further ordered that, within 7 days after the referee has given the report to the Court, the liquidators and the Objectors could apply to vary or reject the report, in whole or in part, or seek any other order contemplated by r 28.67(1)(b) to (e) of the Federal Court Rules 2011 (Cth) (FCR). In the absence of any such application, the liquidators would be taken to have applied for adoption of the report, and the Court would determine on the papers whether to adopt the report.

15    Registrar Gronow filed his report on 7 July 2026 (Referee’s Report). Registrar Gronow concluded that the liquidators’ remuneration and disbursements should be approved in the amounts claimed of $1,227,317.10 and $64,791.30. It should be noted that the Referee’s Report contained a typographical error in the remuneration figure (being $1,277,317.10 rather than $1,227,317.10). The liquidators agreed that the correct figure is the lower amount of $1,227,317.10.

16    No application was made to vary or reject the Referee’s Report. In accordance with the orders made on 2 April 2026, the liquidators are therefore taken to have applied for adoption of the Referee’s Report and a remuneration determination in accordance with it. I have determined that application on the papers.

17    Section 54A(3) of the FCA Act provides that the Court may deal with the report of a referee as it thinks fit including by adopting the report in whole or in part, varying the report, rejecting the report, or making such orders as the Court thinks fit in respect of any proceeding or question referred to the referee. The relevant principles to be applied in exercising this discretion are well established. In Chocolate Factory Apartments Ltd v Westpoint Finance Pty Ltd [2005] NSWSC 784 at [6] – [7] (Chocolate Factory), McDougall J surveyed the authorities applicable to Pt 72 r 13 of the Supreme Court Rules 1970 (NSW) (repealed and replaced in NSW by r 20.24 of the Uniform Civil Procedure Rules 2005 (NSW) in similar wording), which provided for the Supreme Court to adopt, vary or reject a referee’s report. The principles identified by McDougall J in Chocolate Factory have been applied by this Court in exercising the power conferred by s 54A(3) of the FCA Act: see for example CPB Contractors Pty Ltd v Celsus Pty Ltd (No 2) [2018] FCA 2112; 268 FCR 590 at [25] – [38] per Lee J; Weston in his capacity as liquidator of Starcom Group Pty Ltd (in liq) v Rajan [2019] FCA 1455 at [8] – [9] per Stewart J. In Sheehan v Lloyds Names Munich Re Syndicate Ltd [2017] FCA 1340, Allsop CJ summarised the applicable principles as follows (at [10]):

(a)    The court should be reluctant to allow factual issues determined by a referee to be argued afresh in court.

(b)    Some error of principle, absence or excess of jurisdiction or patent misapprehension of the evidence should generally be demonstrated to justify the rejection of the referee’s report.

(c)    The court will generally not reconsider disputed questions of fact where there exists factual material that is sufficient to entitle the referee to reach the conclusions that they did, particularly where the disputed conclusions are made in a technical area in which the referee possesses appropriate expertise.

(d)    The discretion to reconsider a referee’s factual findings will generally only be exercised if the findings are such that no reasonable finder of fact could have made that finding.

(e)    The determination of questions of law and the application of legal principles to the facts found by the referee is a matter for the Court.

18    The Referee’s Report demonstrates that the referee read and considered the affidavits of Mr Blakeley, the affidavit of Mr Vaatstra, the liquidators’ written submissions and reply submissions, and the written objections of the Objectors. The referee considered the background to the liquidation, and the work of the liquidators and their staff during the relevant period, as set out in Mr Blakeley’s affidavit. The referee considered the assets recovered, as itemised in Mr Blakeley’s 24 November 2025 affidavit, in which Mr Blakeley relevantly deposed that following a dividend to creditors, there may be surplus funds of between $27.85 million and $49.62 million available for distribution to shareholders, equating to returns of between $0.34 and $0.61 per share.

19    The referee considered the written objections and related correspondence received from the Objectors. The referee noted Mr Dorman’s distress at the GCPF company having been placed into liquidation through no fault of his own, and his concern at the possibility of losing his retirement savings. The referee also considered Mr Johnstone’s concerns about the liquidators making profit at the expense of investors, and the possible loss to him of up to $200,000 if the net recovery is at the lower end of the liquidators’ estimate.

20    The referee accepted that the liquidators and FTI Technology performed the work and incurred the disbursements as claimed, and that hourly rates charged by the liquidators and their staff were a reduction on those rates usually charged by FTI.

21    The referee considered that the extensive work performed by the liquidators and their staff was necessary and properly performed, noting that significant assets had been identified, located and realised for the benefit of investors, which would not have occurred without the extensive work undertaken. He further considered that whilst the estimated return to investors was significantly less than 100 cents in the dollar, the return is still substantial in light of the unviability of the property projects in which the funds had been invested.

22    It is apparent that the referee paid careful regard to the complexity of the liquidation, noting it required investigations into property investments, claims and assets, the conduct of Court proceedings, dealings with more than 500 investors and shareholders, and the management of more than 100,000 documents. The referee further considered that, although the liquidation did not involve a higher than usual level of risk, the liquidators carried considerable responsibility in seeking to maximise recoveries for investors, including superannuation and retirement funds. The referee was also satisfied that the time taken to perform the work was appropriate, and that the rates charged were reasonable and comparable with rates charged by other liquidators and their staff in similar proceedings in the Court.

23    The referee considered that the disbursements were necessary and reasonable. The referee formed the view that it would not have been possible to manage the large volume of documents involved without a database such as Relativity. He also accepted Mr Blakeley’s evidence that the amounts charged by FTI Technology were competitive with those charged by other similar service providers.

24    I am satisfied that the referee paid careful regard to the statutory matters in s 60-12 of the IPSC, including the evidence of the work undertaken by the liquidators, the complexity and scale of the liquidation, the interests of creditors, shareholders and investors, the time spent and the rates charged. There was ample material before the referee to support the conclusion reached that the amounts sought by the liquidators for remuneration and disbursements were, though large, appropriate, reasonable and necessary in a liquidation of this size and complexity.

25    I am satisfied that the Referee’s Report should be adopted in whole. On the basis of the Referee’s Report, it is appropriate for an order to be made pursuant to section 60–10(1)(c) of the IPSC determining that the remuneration that the liquidators are entitled to receive for the work properly performed in relation to the external administration of GCPF in the relevant period is:

(a)    the amount of $1,227,317.10 (excl GST) on account of remuneration; and

(b)    the amount of $64,791.30 (excl GST) on account of disbursements.

Leave to Derive a Profit or Advantage

26    As stated earlier, the liquidators have applied for leave from the Court pursuant to section 60-20(3)(b) of the IPSC to derive a profit or advantage from the external administration of GCPF. The leave is sought in relation to the disbursements paid by the liquidators to FTI Technology, a related company of FTI, to process company data and host documents on the Relativity platform for the purposes of the external administration of GCPF.

27    Mr Blakeley deposed that the liquidators used the Relativity database to efficiently manage a large volume of documents for the purposes of proceedings in which GCPF was involved, as well as to conduct investigations to identify potential assets and avenues for recovery, and that the Relativity database hosted 542,316 documents at the time the originating process was filed (a correction to his affidavit of 24 November 2025 which stipulated that 100,000 documents were hosted). Mr Blakeley further deposed that FTI Technology’s fees reflected market rates for e-discovery software consulting services and Relativity hosting. FTI Technology periodically benchmarks its standard rates against comparable providers and discounted rates were also applied for this insolvency engagement. The disbursements paid to FTI Technology comprised $16,510.50 in professional fees for preparing documents and emails for processing and review on Relativity, including keyword searches, highlighting and dashboards, and $48,280.80 in Relativity hosting fees. Mr Blakeley expressed the opinion that those disbursements were necessary, proportionate and reasonable to assist with the liquidators’ investigations.

28    Section 60-20(1) of the IPSC stipulates that an external administrator of a company must not directly or indirectly derive any profit or advantage from the external administration of the company. Section 60-20(2) relevantly provides that, to avoid doubt, an external administrator of a company is taken to derive a profit or advantage from the external administration of the company if a related entity of the external administrator directly or indirectly derives a profit or advantage from the external administration of the company. Section 60-20(3)(b) provides that s 60-20(1) does not apply to the extent that the Court gives leave to the external administrator to derive the profit or advantage.

29    Leave has been granted under s 60-20(3)(b) in respect of internal disbursements where the disbursements are modest having regard to the period over which they were incurred and supported by evidence that they are necessary and reasonable: see for example Re Traditional Values Management Ltd (in liq) (No 6) [2020] VSC 832 at [89] per Matthews JR; In the matter of JPD Media & Design Pty Limited (subject to Deed of Company Arrangement) [2020] NSWSC 1311 at [20] per Black J; Lucantonio v Benscrape Pty Ltd (No 2) [2020] NSWSC 1114 at [73] per Williams J.

30    The liquidators submitted, and I accept, that it is appropriate to grant leave in respect of the disbursements payable to FTI Technology for the following reasons. First, the disbursements, totalling $64,791.30, are relatively modest. The assessment of whether disbursements are ‘modest’ must be undertaken in light of the size, complexity and requirements of each liquidation. In the present case, the disbursements were incurred over approximately one year in the context of a complex liquidation involving some $95 million of investments, more than 500 stakeholders and significant ongoing legal proceedings. The fees charged to the liquidators by FTI Technology were also discounted from the standard market rate for e-discovery consulting and Relativity hosting. Second, the disbursements were properly incurred in the conduct of the liquidation. GCPF is subject to ongoing legal proceedings and has more than 500,000 company documents requiring management. The Relativity database enabled those documents to be managed efficiently.

31    The form of order sought by the liquidators in their originating process for the grant of leave under s 60-20(3)(b) was unduly broad, in that it was not confined to relevant payments made to FTI Technology that were the subject of evidence before the Court. It is appropriate to narrow the form of order such that it is limited to those payments.

Conclusion

32    In conclusion, orders will be made adopting the Referee’s Report, making a remuneration determination under s 60-10 of the IPSC in the amounts sought by the liquidators, and granting the liquidators leave under s 60-20(3)(b) of the IPSC to derive a profit or advantage from the external administration of GCPF arising out of the payment of disbursements to FTI Technology in the amount of $64,791.30 (excl GST) in respect of the processing of data and hosting of a ‘Relativity’ database.

Associate:

Dated: 12 August 2026