Federal Court of Australia

Sozou (Liquidator), in the matter of SSG NSW Pty Ltd (in liq) [2026] FCA 1293

ORDERS

THE COURT ORDERS THAT:

1.    With respect to the First and Second Plaintiffs (SSG NSW Pty Ltd (in liq) and its liquidators), pursuant to s 588FF(3)(b) of the Corporations Act 2001 (Cth) (Act), the time for the making of an application under s 588FF(1) of the Act be extended to 30 June 2029.

2.    With respect to the Third and Fourth Plaintiffs (Clarkbrook Pty Ltd (in liq) and its liquidators), pursuant to s 588FF(3)(b) of the Act, the time for the making of an application under s 588FF(1) of the Act, other than in respect of the potential identified claim identified at paragraphs 66 to 68 of the affidavit of Katherine Sozou sworn 23 April 2026, be extended to 30 June 2029.

3.    With respect to the Fifth and Sixth Plaintiffs (Blockfork Pty Ltd (in liq) and its liquidators), pursuant to s 588FF(3)(b) of the Act, the time for the making of an application under s 588FF(1) of the Act be extended to 30 June 2029.

4.    With respect to the Seventh and Eighth Plaintiffs (Dropshaft Pty Ltd (in liq) and its liquidators), pursuant to s 588FF(3)(b) of the Act, the time for the making of an application under s 588FF(1) of the Act be extended to 30 June 2029.

5.    With respect to the Ninth and Tenth Plaintiffs (Austwide Group NSW Pty Ltd (in liq) and its liquidators), pursuant to s 588FF(3)(b) of the Act, the time for the making of an application under s588FF(1) of the Act be extended to 30 June 2029.

6.    Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), on the ground that it is necessary to prevent prejudice to the proper administration of justice, and until the conclusion of the winding up of the Plaintiff companies, the confidential affidavit of Katherine Sozou sworn 23 April 2026 and Confidential Exhibit “KS-2” to that affidavit are not to be published, disclosed or accessed except pursuant to an order of the Court.

7.    The plaintiffs’ costs of these proceedings are to be costs in the winding up of the Plaintiff companies.

8.    Auswide Operations Pty Ltd pay its own costs of these proceedings.

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

REASONS FOR JUDGMENT

Delivered ex tempore

JACKMAN J:

1    Ms Katherine Sozou, Mr Anthony Connelly and Mr William Harris are the joint and several liquidators (Liquidators) of each of:

(a)    the second plaintiff, SSG NSW Pty Ltd (in liq) (SSG NSW);

(b)    the fourth plaintiff, Clarkbrook Pty Ltd (in liq) (Clarkbrook);

(c)    the sixth plaintiff, Blockfork Pty Ltd (in liq) (Blockfork);

(d)    the eighth plaintiff, Dropshaft Pty Ltd (in liq) (Dropshaft); and

(e)    the tenth plaintiff, Austwide Group NSW Pty Ltd (in liq) (Austwide);

(together, the Companies).

2    By an originating process dated 24 April 2026, the Liquidators and each of the Companies (together, the Plaintiffs) seek relief under s 588FF(3)(b) of the Corporations Act 2001 (Cth) (Act) to extend the time for making applications under s 588FF(1) of the Act to 30 June 2029, in respect of unidentified claims of the Plaintiffs.

3    Auswide Operations Pty Ltd (Auswide Operations) appears with leave under r 2.13 of the Federal Court (Corporations) Rules 2000 (Cth) as an interested person, and opposes the application in so far as it concerns potential claims by Austwide or its Liquidators against Auswide Operations, and any potential claims by Clarkbrook or its Liquidators against Auswide Operations. A particular issue concerning Auswide Operations relates to a Deed of Settlement and Release (the Deed of Release) entered into on 20 September 2024 by the former liquidator of Clarkbrook, Clarkbrook itself, Mr Manassa and Auswide Operations. In light of the Deed of Release, the plaintiffs do not seek an extension of time for the making of an application under s 588FF(1) in respect of the claim identified at paras 66–68 of the affidavit of Ms Sozou sworn 23 April 2026, being a potential claim by Clarkbrook against Auswide Operations in connection with a labour hire agreement dated 1 July 2022 in respect of which the Liquidators had identified that the payments made by Auswide Operations under that agreement may not correspond with the obligations of Auswide Operations arising under cl 7(a) of the agreement, particularly as to the quantum of payments due from Auswide Operations under that agreement to Clarkbrook (the Potential Identified Claims). I deal with the effect of the Deed of Release in further detail below.

4    The Companies comprise part of a substantial group of labour hire companies to which the Liquidators have been appointed, in the place of the former liquidators who were initially appointed. The Liquidators are also appointed to the three companies which were the subject of the decision of Markovic J in Re Touchline Pty Ltd (in liq) [2025] FCA 1516 (Touchline) and the two companies which were the subject of the decision of Cheeseman J in Re Comm TC Pty Ltd (in liq) [2026] FCA 532 (Comm TC). The Court in each case granted an extension under s 588FF(3)(b) to 1 March 2027 for identified claims and an extension to 28 April 2028 for unidentified claims. The evidence relied upon by the Liquidators in those two earlier cases is substantially similar to the evidence in these proceedings.

5    It should be noted at the outset that some of the evidence relied upon by the Plaintiffs is confidential, and I regard it as appropriate to make an order under s 37AF of the Federal Court of Australia Act 1976 (Cth) to suppress that evidence on the ground that that is necessary to prevent prejudice to the proper administration of justice within the meaning of s 37AG(1)(a). That evidence comprises the confidential affidavit of Ms Sozou sworn 23 April 2026 and Confidential Exhibit KS-2. In broad terms, the confidential evidence concerns several highly sensitive matters which are relied upon in support of the Plaintiffs’ contention that the liquidations are inherently complex, that in the time available since the Liquidators’ appointments there has been inadequate time to conduct sufficiently comprehensive investigations, and that material prejudice will arise if a suppression order is not made. I admitted that confidential evidence, except as against Auswide Operations, which had not been provided with that material despite being given leave to be heard under r 2.13 as an interested person. I make no criticism of the Plaintiffs for not having provided that material to Auswide Operations, but I do not regard it as appropriate to admit that evidence against a person appearing with leave in circumstances where that person does not have the opportunity of dealing with it.

6    Section 588FF(3)(a) provides relevantly that an application under s 588FF(1) may only be made during the period beginning on the relation-back day and ending three years after that day. However, s 588FF(3)(b) allows such an application to be made within such longer period as the Court orders on an application made by the liquidator during the period specified in para (a). Orders pursuant to s 588FF(3)(b) are commonly referred to as “shelf orders”. I summarised the general principles which apply to an application under s 588FF(3)(b) in Mansfield, In the matter of NR Complex Pty Ltd (in liq) (Receiver and Manager Appointed) [2025] FCA 1349 at [8]–[10], and I incorporate that passage by reference in these reasons. The liquidator bears the onus of showing that it is just and fair that the statutory time limit not apply in the circumstances of the case: Comm TC at [14].

7    The present application was brought within the period prescribed by s 588FF(3)(a). Section 491 of the Act provides that a company may be wound up voluntarily by special resolution. Where that occurs, and the company was not otherwise under administration or subject to a deed of company arrangement or a restructuring, the winding up is taken to have begun on the day the resolution was passed: s 513B(e) of the Act. By s 91 of the Act (Item 23), the relation-back day in any other case is the day on which the winding up is taken (because of Div 1A of Pt 5.6) to have begun. In identifying the end of the period of three years after the relation-back day, the “corresponding date” principle applies; namely, with respect to months or years, the period ends on the corresponding date in the subsequent month(s) or year(s): Re Weston Application; Employers Mutual Indemnity (Workers Compensation) Ltd v Omni Corp Pty Ltd [2009] NSWSC 264; (2009) 255 ALR 362 at [14]–[15] (Barrett J). As the originating process was lodged and accepted for filing on 24 April 2026, the application was made within the three-year period specified in s 588FF(3)(a) given that:

(a)    the relation-back day for SSG NSW is 27 April 2023, because that was the date that the former liquidator was appointed following a resolution of its shareholder, such that the last day within which an application under s 588FF(1) could be made under s 588FF(3)(a) was 27 April 2026;

(b)    the relation-back day for Clarkbrook is 3 May 2023, because that was the date that the former liquidator was appointed following a resolution of its shareholder;

(c)    the relation-back day for Blockfork is 24 May 2023, because that was the date that the former liquidator was appointed following a resolution of its shareholder;

(d)    the relation-back day for Dropshaft is 11 July 2023, because that was the date that the former liquidators were appointed following a resolution of its shareholder; and

(e)    the relation-back day for Austwide is 25 August 2023, because that was the date the former liquidator was appointed following a resolution of its shareholder.

8    The evidence establishes the following matters concerning each of the Companies.

9    SSG NSW operated a professional labour hire company that provided staffing for companies in the construction industry in New South Wales. Its sole director, secretary and shareholder was Mr Daniel Wade. The former liquidator of SSG NSW identified several payments of large, rounded values to various unknown parties that appeared to be preferential in nature, and also identified a number of cash withdrawals from SSG NSW’s bank accounts by Mr Wade and various transactions in favour of Mr Wade or related entities which the former liquidator thought may be deemed voidable, commercial or unreasonable director-related transactions. The former liquidator was unfunded and said that he may be unable to pursue any such claims but that further investigations into potential voidable transactions needed to be completed. On 20 March 2025, the creditors of SSG NSW resolved to appoint the Liquidators, being about 13 months before the relevant expiry date of 27 April 2026. It appears to the Liquidators that SSG NSW began trading in October 2020 and ceased trading in October 2022, and that there are five unsecured creditors of SSG NSW, the largest being the Australian Taxation Office (ATO) in the amount of about $2.3 million.

10    Clarkbrook operated as a payroll entity for Auswide Operations, which operated a construction business. The former liquidator found that Clarkbrook had failed to lodge Business Activity Statements or income tax returns, and failed to maintain adequate records to manage properly its financial and taxation matters. The sole director and secretary of Clarkbrook was Mr Steven Connor. The former liquidator said that Mr Connor attributed the failure of Clarkbrook’s business to the inability to obtain new contracts, and the former liquidator said that he did not have evidence to support attempts to enter into new contracts following the cessation of the agreement with Auswide Operations. The former liquidator said that after the last payment by Auswide Operations on 27 March 2023, it appeared that Clarkbrook terminated all of its employees. The former liquidator doubted whether Clarkbrook had kept adequate financial records so as to comply with s 286 of the Act. The former liquidator referred to several transactions which he described as unexplained, and intended to undertake further investigations into potential voidable transaction claims and other recovery actions, subject to the receipt of further books and records of Clarkbrook. The former liquidator said that he needed to finalise his investigations. The Liquidators have formed the view that Clarkbrook began trading in April 2022 and ceased trading in March 2023, at which point all employees were terminated, and identified the ATO as the largest unsecured creditor in the amount of $787,195.

11    Blockfork operated as a service entity sourcing labour hire workers for businesses, but it appears that Blockfork did not directly employ any labour hire workers. Its sole director and secretary was Mr Wade. The former liquidator said that Blockfork failed to make any lodgments with the ATO since its incorporation on 2 July 2021, and that he was not in possession of adequate records to determine the liabilities to the ATO. The former liquidator said that, apart from Blockfork’s bank statements, Mr Wade had failed to provide any substantive records, and Mr Wade had said that Blockfork did not have any customer agreements. The former liquidator’s investigations identified transactions totalling about $15 million between 12 April 2022 and 24 May 2023 to unknown recipients with insufficient narrations, and that two transfers totalling approximately $1.4 million were made to a foreign exchange account. The former liquidator formed the view that Blockfork was presumed insolvent from 2 July 2021 by reason of the failure to lodge any tax documents and the failure to provide the former liquidator with adequate books and records. The former liquidator was continuing his investigations, but there was no funding available to pursue any of the claims being investigated. The Liquidators say that Blockfork began trading in July 2021 and ceased trading in April 2023, and have identified six unsecured creditors, the largest being the ATO in the estimated amount of $855,055.

12    Dropshaft provided business consulting services within the construction industry in New South Wales. Its sole director and secretary was Mr Nelson Evers. Due to the lack of books and records, the former liquidators were unable to verify whether Dropshaft had any inventory, work in progress or plant and equipment. Mr Evers provided the former liquidators with bank statements for Dropshaft in the period February 2022 to March 2023, and said that there were no other books and records of the company. However, the former liquidators also received bank statements for the period December 2021 to July 2023 directly from Dropshaft’s bank. The ATO advised the former liquidators that Dropshaft had not lodged an income tax return since its incorporation, and the former liquidators were unable to determine the extent of Dropshaft’s tax liabilities due to the lack of books and records. The former liquidators formed the view that the company had been insolvent since its incorporation, and that over a 17 month period from February 2022 to June 2023 approximately $11 million of transactions were conducted within Dropshaft’s bank account, but there were no source documents substantiating those transactions. There were insufficient funds available in the liquidation to indemnify the former liquidators for the cost of further investigations into the timing and causes of Dropshaft’s insolvency and for any further investigations into the approximately $11 million of transactions that were conducted within the company’s bank account. Due to the lack of sufficient books and records and the limited funding available, it had not been possible for the former liquidators to fully investigate whether Dropshaft was a party to any transactions which may be voidable. The Liquidators state that Dropshaft appears to have ceased trading in June 2023, and they have identified four unsecured creditors, the largest of which is the ATO in the estimated amount of $2.068 million.

13    Austwide provided labour hire services in the construction industry. Its directors were Mr Ebru Yerlikaya and Ms Gomtibem Darji, and Ms Darji was the sole shareholder. The former liquidator found that Austwide had not paid its tax liabilities since its inception and that its current debt to the ATO was approximately $2.3 million, and that Austwide’s superannuation liability had not been paid since inception and was approximately $1.3 million. The former liquidator said that Austwide’s records did not reveal any long term contracts but that it appeared that Austwide primarily provided labour hire services to Auswide Operations, Zenith Worx Pty Ltd and Zenith Comm (Aust) Pty Ltd. The former liquidator was of the view that Auswide may have been incorporated for the purposes of benefiting Auswide Operations, Zenith Worx Pty Ltd and Zenith Comm (Aust) Pty Ltd to minimise the tax and superannuation liabilities of those entities, as Austwide did not receive sufficient income to cover its tax liabilities and other payroll liabilities, other than the net wages of the employees. The former liquidator formed the preliminary view that Austwide and its operators may have engaged in a scheme likely to defeat creditors’ interests, the relevant creditors being mainly the ATO, Workers’ Compensation, Nominal Insurer and Revenue NSW. A number of tasks remained to be completed by the former liquidator, including completing investigations into the affairs of Austwide and its transactions, initiating recovery action, and completing investigations into insolvent trading. The Liquidators have identified four unsecured creditor claims totalling approximately $2.8 million, of which the ATO was the largest for approximately $2.3 million. The Liquidators say that Austwide employed approximately 346 employees during the financial years ended 30 June 2023 and 30 June 2024, however the Liquidators have not been provided with any contracts, employee records or other key records which would be required to operate this type of business.

14    The Liquidators were appointed to the Companies on the following dates: SSG NSW on 20 March 2025, Clarkbrook on 29 November 2024, Blockfork on 7 March 2025, Dropshaft on 11 December 2024, and Austwide on 24 July 2025. Since those appointments, the Liquidators have taken the following steps:

(a)    gathering and reviewing books and records of each of the Companies, including those records provided by the former liquidators of each Company and the ATO;

(b)    conducting forensic analysis of bank statements, transaction flows and employee transfers in relation to the Companies;

(c)    commencing work to identify claims and potential avenues of recovery for each of the Companies;

(d)    engaging legal advisers;

(e)    planning public examinations in relation to the Companies’ affairs and initiating steps to conduct these examinations; and

(f)    issuing information requests and follow-up information requests to parties that either paid money to, or received money from, the Companies, many of which remain unanswered.

15    As part of their investigations into the affairs of the Companies, the Liquidators and their staff are reviewing the available records of the Companies and conducting investigations for the purpose of determining and identifying:

(a)    payments made by or on behalf of, or transactions entered into by, the Companies during the relation-back periods prescribed for claims within the meaning of Div 2 of Pt 5.7B of the Act; and

(b)    whether there are any claims (including voidable transaction claims within the meaning of Div 2 of Pt 5.7B of the Act) that the Liquidators may pursue against certain individuals or entities for the benefit of the creditors of each of the Companies.

16    It is presently unclear to the Liquidators what role, if any, each of the directors of the Companies performed. Ms Sozou has formed the view that the lack of cooperation of the directors of each of the Companies with the former liquidators or the Liquidators in relation to their investigations, and the lack of information provided by them, indicates that the directors did not undertake any administrative, transactional, client-facing or other functions ordinarily expected of directors or senior management in an operating enterprise. Ms Sozou says that public examinations are required to confirm the identity of shadow directors and whether such persons may be exposed to significant insolvent trading claims.

17    The evidence demonstrates that the former liquidators and the Liquidators have encountered significant impediments in their investigations into the Companies’ affairs by reason of the Companies having inadequate books and records, the lack of cooperation of the directors of the Companies, and the uncertainty (or lack) of funding to pursue or complete investigations into the Companies’ affairs. It is also relevant that the Liquidators were appointed between 13 and 19 months before the expiry of the three-year period under s 588FF(3)(a), and thus have not had the benefit of the full period to undertake the necessary investigations into each of the Companies. Nevertheless, the Liquidators have undertaken substantial work and investigations since their appointment to each of the Companies. As Ms Sozou states, those periods have been inadequate to conduct a sufficiently comprehensive and conclusive investigation into unknown claims that may be available to the Liquidators and the Companies, and that without an extension, the limitation period will expire before the Liquidators’ investigations into the Companies can be sufficiently progressed, public examinations can be conducted, and unknown claims can be pursued for the benefit of creditors. Contrary to the submission by Auswide Operations, I do not regard the Liquidators as having unreasonably delayed in exercising their public examination powers.

18    Ms Sozou gives evidence (affidavit of 23.4.26 at [83]–[84]) that, based on the Liquidators’ experience and given the complexity of the external administrations of the Companies, the Liquidators consider that the time necessary to undertake the following steps to determine whether there is a reasonable basis for unknown and unidentified claims to be brought and pursued would be until 30 June 2029, namely to:

(a)    conduct and complete detailed investigations into the unknown claims prior to taking any steps to commence such actions;

(b)    commence public examinations, including issuing orders for production and conducting examinations of persons;

(c)    obtain advice as to the merits of any claims and brief counsel in connection with those claims; and

(d)    prepare necessary Court documents required for the commencement of proceedings.

19    Ms Sozou states (affidavit of 23.4.26 at [86]) that, if the Court does not grant the extension of time sought, unsecured creditors of each of the Companies will be significantly prejudiced because:

(a)    since the Liquidators’ appointment to each of the Companies, the Liquidators have not had sufficient time to complete their investigations regarding the Companies;

(b)    successfully pursuing the unknown claims is highly likely to result in significantly higher returns to creditors, especially in circumstances where the Companies have minimal assets available to pay creditors; and

(c)    the ATO and Revenue NSW are the two major creditors of each of the Companies and, if an extension is not granted, the ability of the Liquidators to recover unpaid statutory liabilities for the public benefit will be significantly impeded.

20    Ms Sozou does not consider there to be any material prejudice to any person resulting from the grant of an extension of time that would be sufficient to outweigh the benefit to the creditors that may result from a grant of the relief that is sought in this proceeding (affidavit of 23.4.26 at [87]).

21    In relation to prejudice to it as a potential respondent to preference claims, Auswide Operations relies on an affidavit of Mr Vaccher, the finance manager of Auswide Operations, in which Mr Vaccher says that the existence of a possible but unidentified claim against Auswide Operations has the following effects:

(a)    it creates commercial uncertainty for Auswide Operations;

(b)    Auswide Operations cannot presently assess whether any provision should be made in its accounts in respect of such a claim;

(c)    from time to time, customers or suppliers dealing with Auswide Operations seek warranties or representations that Auswide Operations is not subject to any litigation or any material litigation;

(d)    there may be an adverse effect on Auswide Operations’ ability to obtain finance, enter into contracts, tender for work and manage its cashflow; and

(e)    reconstructing historical transactions becomes more difficult as time passes.

I take those matters into account, including the well-recognised presumptive prejudice resulting from delay in the bringing of proceedings: see, for example, Re Clarecastle Pty Ltd (in liq) [2011] NSWSC 857; (2011) 85 ACSR 260 at [218] (Ward J). However, I do not regard the claimed prejudice to Auswide Operations as sufficient to outweigh the factors that favour a grant of the extension of the length sought.

22    As indicated above, Auswide Operations relies on the Deed of Release, in which cl 4.1(a) provides as follows:

Upon payment of the Settlement Sum [defined as $263,128.80, which the evidence of Mr Vaccher establishes was paid] the Liquidator and the Company [defined as Clarkbrook] release and discharge each of Mann [defined as Auswide Operations] and Mr Manassa from all Claims [defined as “Any allegation, cause of action, demand, legal proceeding, exposure, obligation, liability, investigation, inquiry, examination, claim, damages, recovery, compensation, and loss (including in association with costs and legal costs)] past, present or future, actual or contingent, whether known or unknown, that the Liquidator and the Company may have against each of Mann and Mr Manassa arising from, or in any way associated with:

(i)    the subject matter of the Dispute [defined as “The dispute between the parties in respect of the Company’s claim against Mann for payroll and associated services rendered by the Company to Mann which the Company and/or the Liquidator alleged were not paid for.”];

(ii)    the Company and the financial affairs of the Company;

(iii)     any Order for Production served on Mann or Mr Manassa;

(iv)    the Summons [defined as a summons dated 11 June 2024 for Mr Manassa’s examination(s) pursuant to s 596B of the Act] and the Public Examination Proceedings [defined as Supreme Court of NSW Proceedings No: 2024/00199155];

(v)    the Liquidator’s investigations in connection with the Company;

(vi)    the facts, matters and circumstances referred to in the Creditors Reports [defined as the statutory reports to creditors of the Liquidator dated 4 May 2023 and 3 August 2023];

(vii)    the Scheme [defined as a scheme to avoid paying amounts in respect of payroll and associated services from the Company and possibly other external payroll companies];

(viii)    the Payments Remaining Under Investigation [defined as payments from Auswide Operations to Green & Associates and/or Blockfork]; and

(ix)    the Recitals.

23    Auswide Operations relies on the wide language used in the release clause, including involvement in the alleged “Scheme” and any matter referred to within the statutory reports to creditors, noting that the former liquidator’s report to creditors of Clarkbrook of 3 August 2023 expressly referred to potential voidable transaction claims (CB411–12). Auswide Operations submits that the release clause is so wide that it encapsulates any s 588FF claim which the Plaintiffs might possibly contemplate in respect of Clarkbrook, and therefore that there is no merit to any claim under s 588FF(3) which the Liquidators might possibly wish to make that falls outside the Potential Identified Claims. Auswide Operations thus submits that any order granting an extension of time to the Liquidators in respect of Clarkbrook should expressly exclude any claims which may be made against Auswide Operations.

24    It is well-established that (a) ordinarily, one of the issues relevant to an extension application of this kind is a preliminary review of the merits of the foreshadowed proceedings, in the sense of an investigation as to whether such proceedings would be so devoid of prospects that it would be unfair, by granting an extension, to expose the other party to the continuing prospect of suit; however, (b) where the liquidator’s purpose in seeking the extension of time is simply to put himself into a position where he can properly decide whether or not to bring proceedings, a preliminary inquiry into the merits of any consequential proceedings may not always be necessary: Green v Chiswell Furniture Pty Ltd (in liq) [1999] NSWSC 608 at [15] (Austin J); Touchline at [38]; and Comm TC at [31]. In my view, the extension sought by Clarkbrook in relation to any potential claim against Auswide Operations falls into the latter category, and a preliminary inquiry into the merits of any such claim is not necessary.

25    In any event, even if I were to make a preliminary review of the merits of any such claim, I would not conclude on the material available to me that such proceedings would be so devoid of prospects that it would be unfair, by granting an extension, to expose Auswide Operations to the continuing prospect of suit. The application of general words in a release typically raises more difficult issues than the purely objective construction of the language used, in light of the principle that the general words of a release are limited to what was specifically in the contemplation of the parties at the time the release was given: Grant v John Grant & Sons Pty Ltd [1954] HCA 23; (1954) 91 CLR 112 at 125–8 (Dixon CJ, Fullagar, Kitto and Taylor JJ). That principle, and the cognate principle in equity concerning the unconscionable exercise of legal rights conferred by releases, together with the relevance of subjective intentions in construing releases, have been considered recently by the Full Federal Court in Redbubble Ltd v Hells Angels Motorcycle Corporation (Australia) Pty Ltd [2024] FCAFC 15; (2024) 303 FCR 100 at [38] (Perram and Downes JJ), and in a thorough and illuminating analysis by the New South Wales Court of Appeal in Reid v Commonwealth Bank of Australia [2022] NSWCA 134; (2022) 109 NSWLR 149 at [3] (Bell CJ), [15]–[52] (Leeming JA) and [119]–[128] (White JA). It is not necessary to pursue the proper scope of the principles further for present purposes, but simply to say that the objective construction of cl 4.1 of the Deed of Release is not in itself sufficient at this stage to render any unknown claim devoid of prospects.

26    Accordingly, in all the circumstances, I regard it as appropriate to make the orders sought by the Plaintiffs.

27    Auswide Operations seeks an order for its costs. The general principle is that a person given leave to be heard under r 2.13 of the Federal Court (Corporations) Rules 2000 (Cth) neither receives nor pays costs: Morelli (Liquidator), In the matter of FW Projects Pty Ltd (in liq) v White Hills Pty Ltd (No 2) [2024] FCA 955 at [19]–[21] (Halley J). In my view, the circumstances of the present case do not justify any departure from that general rule.

Associate:

Dated:    1 September 2026

SCHEDULE OF PARTIES