Federal Court of Australia

Scott (Trustee) v Maher, in the matter of bankrupt estate of Maher (No 3) [2026] FCA 1326

ORDERS

THE COURT NOTES THAT:

A. The orders below were made upon the Fifth Respondent moving on paragraphs 3–4 of his interlocutory application dated 2 December 2025.

THE COURT ORDERS THAT:

1. The First to Fourth Respondents (Respondents) must each, to the extent that they have not already:

(a) within 21 days of the date of these Orders, file and serve any further affidavit:

(i) as to the basis upon which they assert that the assets identified in the Partnership’s books and records exhibited to IAC-4, IAC-5 and IAC-6 to the affidavit of Innis Anthony Cull dated 2 December 2025  are not assets of the Maher Brothers Partnership (Partnership);

(ii) as to what other assets, if any, they assert are assets of the Partnership and the basis for that assertion;

(iii) identifying any bank accounts used to receive any Partnership funds or pay any Partnership debts during the period 30 June 2021 to the date of these orders;

(iv) to the extent that any such bank account referred to in paragraph (a)(iii) above is not held in the name of the Partnership, identifying the relevant transactions; and

(v) as to any assets (including real property) acquired by them using funds belonging to the Partnership or using proceeds of any sale of Partnership Assets between 13 August 2024 to the date of these orders.

(b) produce the following categories of documents to the Receiver where such documents are in the possession, power and/or control of the relevant Respondent:

(i) any documents evidencing any claims for ownership referred to in paragraph 1(a);

(ii) invoices, remittances or other records which record the purchase of livestock by the Second and Third Respondents after 16 November 2021;

(iii) the passbook for (and any statements relating to) the period 25 April 2023 to the date of these Orders in respect for the following account:

BSB:                                  083 641

Account Number:         20 907 9813

(iv) statements for the period 5 April 2023 to the date of these Orders in respect of the following account:

Account Holder:           AC & DJ Maher

BSB:                                083 541

Account Number:       55 203 0304

2. Leave is granted to the Fifth Respondent (Receiver) to issue subpoenas in the form set out in Annexure A of these orders.

3. Within 21 days of receipt of the material in paragraph 1 above, the Receiver is to file an updated report outlining his views on the assets of the Partnership (Receiver’s report).

4. The application be referred to a private mediation to be attended by the Receiver and the Respondents, with such mediation to occur within 60 days of the Receiver’s report.

5. The mediator is to report on the outcome of the mediation to the Court, following which the proceeding may be listed for a further case management hearing.

6. Costs are reserved.

7. Liberty to apply on two days’ notice.

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

Annexure A

[The Order entered, which annexes the subpoenas, is available on the Commonwealth Courts Portal.]

REASONS FOR JUDGMENT

NESKOVCIN J:

1 The present application was brought by the fifth respondent, who was appointed as Receiver and Manager of the Assets and undertakings of the Maher Bros Partnership by orders of this Court made on 13 August 2024.

2 The Partnership is a former farming partnership which was carried on by the first to fourth respondents, who are brothers (former partners). The Partnership was dissolved after the first respondent, Thomas Maher, was made bankrupt on 16 November 2021. However, prior to the dissolution, the Partnership had not been functioning for a long time due to the disintegration in the relationships between the former partners. The applicant, the Trustee in Thomas Maher’s bankruptcy, commenced this proceeding seeking orders for the sale of numerous parcels of land upon which the Partnership was conducted. Although the Trustee’s application was resolved, the proceeding has continued due to ongoing disputes between the former partners.

3 By interlocutory application filed on 2 December 2025, the Receiver sought orders for the former partners to file and serve affidavits regarding assertions as to ownership of the Assets and for the production of documents to verify claims as to ownership and accounts relating to the Partnership. The order sought by the Receiver for declarations (paragraph 5 of the interlocutory application) was not pressed at this stage and was said at the hearing to have been abandoned. In these reasons, the application means the application for orders sought in paragraphs 1–4 of the interlocutory application filed on 2 December 2025.

4 The application was supported by affidavits sworn by the Receiver on 2 December 2025 and 11 March 2026 and an outline of written submissions. The first and fourth respondents effectively did not oppose the application and orders sought by the Receiver. The fourth respondent filed an affidavit sworn on 1 May 2026 and Mr James Thompson, solicitor, swore an affidavit on 8 May 2026 on behalf of Thomas Maher. Those parties were content for the Court to deal with the application on the papers.

5 The second and third respondents, however, indicated that they opposed the application and orders sought by the Receiver and, as a result, the application was listed for hearing. Despite that indication, the second and third respondents did not file any materials outlining the grounds on which they opposed the application. Ms Celeste Johnson, who apparently holds a power of attorney on behalf of the second and third respondents, sought to appear and make submissions on their behalf at the hearing. In light of the limited nature of the issues raised in the application and in the interests of progressing matters, I granted Ms Johnson leave to appear and make submissions on behalf of the second and third respondents on this occasion.

6 This is an appropriate matter for the provision of short form reasons because the application is of a character that is well known to the Court, the relevant principles are well established, the relevant facts are of a relatively short compass and the respondents have been notified of the application. In light of the ongoing disputes between the parties, these reasons will serve to explain the basis on which the orders were made.

7 The Receiver sought orders for production of affidavits and documents pursuant to ss 37M and 37P of the Federal Court of Australia Act 1976 (Cth). The power of the Court to make orders for production of documents to facilitate the performance of a receiver’s duties and functions is well established: see, for example, Australian Securities and Investments Commission, In the Matter of Richstar Enterprises Pty Ltd v Carey (No 5) (2006) 58 ACSR 6; [2006] FCA 684 at [57] (French J).

8 I was satisfied that I should exercise my discretion to make the orders sought by the Receiver for the following reasons.

9 First, since the Receiver’s appointment, he has encountered several difficulties in performing his role as Receiver of the assets of the Partnership. He says that the Partnership records are poorly kept and out of date. Furthermore, he has been obstructed in his attempts to identify and take possession of the assets of the Partnership to the extent that he has received verbal threats of physical harm. This is entirely unacceptable.

10 Second, according to the Receiver, the second and third respondents dispute whether all of the assets identified by the Receiver are Assets of the Partnership or they assert that the Assets are worth significantly less than the value the Receiver has attributed to them. However, the Receiver says that he does not have sufficient evidence to verify those claims, no evidence having been produced. The orders will give all of the respondents and the Receiver an opportunity to produce or examine evidence to verify any claims the respondents intend to make in relation to the Assets.

11 Third, insofar as specific orders require the second and third respondents to produce documents, but not the first and fourth respondents, I was satisfied that the orders are appropriate because, according to the Receiver, they are the only respondents who appear to contend that there are Assets that belong to them, and not the Partnership. To the extent that the second and third respondents’ objections to production concerned disclosure of private information, those concerns are addressed by requiring production of documents to the Receiver in the first instance. Thereafter, the Receiver can consider the need to facilitate disclosure to the other respondents and mechanisms that can be put in place to protect the second and third respondents’ privacy.

12 Fourth, the orders will overcome the evident unwillingness of the second and third respondents to cooperate with reasonable requests for information and assistance to allow the Receiver to perform the tasks required of him.

13 For those reasons, I made orders substantially in the form sought by the Receiver.

Associate:

Dated:    7 September 2026

SCHEDULE OF PARTIES