Federal Court of Australia

Cull (Liquidator), in the matter of Torbeckin Pty Ltd (In Liquidation) [2026] FCA 1461

ORDERS

THE COURT ORDERS THAT:

1.    The applications by Mr Jeremy Stanley Rowell and Ms Emma Christine Domino (the Access Applicants) for leave under r 2.32(4) of the Federal Court Rules 2011 (Cth) to inspect restricted documents on the Court file in this proceeding are refused.

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

REASONS FOR JUDGMENT

BUTTON J:

Introduction

1    Mr Jeremy Stanley Rowell and Ms Emma Christine Domino (the Access Applicants) seek leave under r 2.32(4) of the Federal Court Rules 2011 (Cth) (FCR) to inspect restricted and suppressed documents on the Court file in this proceeding (the Access Applications). The First Plaintiff, being the liquidators of Torbeckin Pty Ltd (in liquidation) (Torbeckin), opposes the Access Applications.

2    For the reasons that follow, the Access Applications are refused.

Background

3    The proceeding was commenced by originating process filed on 6 June 2024. The relief sought included an application for examination summonses under s 596A of the Corporations Act 2001 (Cth) (the Act) against the Access Applicants (and one other person), leave for the liquidators to enter into a litigation funding agreement on behalf of Torbeckin under ss 477(2B) and 506(1A) of the Act, and orders under ss 596D(2) and 597(9) of the Act that certain third parties produce documents.

4    The application was supported by a confidential affidavit of Mr Innis Anthony Cull, one of the liquidators of Torbeckin, sworn on 5 June 2024. Pursuant to rr 11.3(4A) and (7) of the Federal Court (Corporations) Rules 2000 (Cth) (Corporations Rules), an affidavit filed in support of an examination summons is to be filed as being confidential, and is not available for inspection by a person unless the Court otherwise orders.

5    On 21 June 2024, McElwaine J made orders under s 37AF of the Federal Court of Australia Act 1976 (Cth). Those orders provided that specified paragraphs of that affidavit, and specified pages of its exhibit, not be published, disclosed or accessed by any person except pursuant to an order of the Court until the conclusion of the liquidation. Orders were also made that day for the production of documents by the third parties, and approving entry into the funding agreement. Further orders were made on 24 February 2025 for document production and service overseas.

The Access Applications

6    On 4 June 2026, the Access Applicants each sought leave under r 2.32(4) of the FCR to access documents on the Court file. Their requests were framed broadly by category, but, in substance, extended to the whole of the Court file (the Access Applicants not being in a position to know and detail specific documents on the file). The form seeking access stated the reason for which access was sought as follows:

The documents are required because the alleged funding arrangement has since been relied upon in related proceedings concerning the liquidation of Torbeckin Pty Ltd, the source and application of funds received into the liquidation administration account, the Annual Administration Returns, costs enforcement, bankruptcy-related proceedings, and allegations of liquidator misconduct. The applicants seek access so that the source, purpose and application of the alleged funding can be tested on primary documents.

7    On 12 June 2026, the parties were notified that the Access Applications had been referred to my chambers for consideration. Because the file was marked as restricted — consistent with the originating process including an application under s 596A of the Act — the matter was not dealt with administratively, and the First Plaintiff was given an opportunity to oppose the grant of leave to access the documents sought. The First Plaintiff opposed the Access Applications.

8    On 9 July 2026, the parties were advised that the Access Applications would proceed by way of a contested hearing in order for the First Plaintiff to have an opportunity to identify the bases upon which it contended access should not be granted, and to allow the Access Applicants to have an opportunity to respond to those submissions. A case management hearing in respect of the Access Applications was scheduled for 31 July 2026.

9    On 29 July 2026, the Access Applicants filed affidavits and an outline of submissions in support of the Access Applications. The Access Applicants’ material referred to a range of related proceedings, inquiries and grievances being pursued by the Access Applicants concerning the liquidation and the personal bankruptcy of one of them.

10    The Access Applicants submitted they had “forensic purposes for access”. The reasons given in Mr Rowell’s affidavit of 29 July 2026 for seeking access were as follows (in the summary section of the affidavit):

70.     I seek access so that I can determine what was represented to the Court in VID514/2024, whether any investigation was in fact undertaken, what work was performed, how the funds were applied, and whether any continuing claim of prejudice arising from disclosure has a present factual basis.

71.     I also seek access so that I can determine whether the documents are relevant to:

(a)     my bankruptcy;

(b)     my appeal in VID373/2026;

(c)     the circumstances in which the Liquidators pursued my bankruptcy;

(d)     the conduct of the liquidation;

(e)     statements made by the Liquidators in other proceedings; and

(f)     any other proceeding in which the documents may constitute relevant evidence.

11    The Access Applicants submitted that circumstances had changed materially since the restrictions were imposed, relying on a statement made by the liquidators in February 2026 that, apart from litigation involving the Access Applicants and awaiting the mortgagee’s sale, there was little further for them to do in the liquidation. The Access Applicants submitted that the mortgagee’s sale had now been completed which “removes any present concern that disclosure could prejudice the completion of the marketing, negotiation, settlement, transfer or registration of that sale”. The Access Applicants submitted that they were willing to accept appropriate redactions, confidentiality undertakings and restrictions on further use of the documents.

12    After hearing from the Access Applicants and the First Plaintiff, on 31 July 2026, I made orders directing that the Access Applications be determined on the papers and set a timetable for evidence and submissions to be filed with the Court. Under that timetable, the First Plaintiff was to file and serve its material opposing access by 4:00pm on 4 September 2026, and the Access Applicants were to file and serve any responsive material by 4:00pm on 25 September 2026.

13    After seeking and being granted a one-day extension, the First Plaintiff filed a second affidavit of Mr Cull and written submissions on 7 September 2026. At a high level, the liquidators submitted that their investigations are continuing and the proposed examinations have not been abandoned. The liquidators submitted that disclosure would create a real risk of impeding those investigations, and that undertakings would not answer that risk. The submissions noted that the completion of the mortgagee’s sale has not brought the liquidators’ investigations to an end.

14    On 24 September 2026, the Access Applicants requested a one-day extension from 4:00pm on Friday, 25 September 2026 to 4:00pm on Monday, 28 September 2026 in which to file their responsive material. I allowed that extension.

15    On 28 September 2026 at 5:11pm, after the extended time had expired, the Access Applicants requested a further extension until 30 September 2026. In support of their request, the Access Applicants provided an affidavit of Ms Domino, which, with its exhibit bundle, ran to 225 pages. The affidavit detailed, at great length, matters concerning Torbeckin’s financing arrangements before the liquidation (including efforts to refinance), the company’s finances in 2024 and 2025 (including concerns about certain entries in financial records) and set out the records sought by the Access Applicants to test reconciliations of certain accounting matters. The affidavit went on to detail further material the Access Applicants obtained elsewhere and stated that they wanted more time in order to undertake further analysis and reconciliation.

16    The Access Applicants also said they no longer considered it viable to determine the Access Applications on the papers.

17    On 29 September 2026, I refused the request for a further extension of time and had my chambers communicate that the material filed in support of the request for an extension seemed to have lost sight of the nature of the application, being an application for access to documents on the Court’s file, and not an inquiry into the conduct of the liquidation or of the liquidators. Since that extension was refused, the Access Applicants have not communicated further with my chambers.

18    Having regard to the contents of the documents filed by the First Plaintiff — which include affidavit material covered by the ongoing application of r 11.3(7) of the Corporations Rules — the evidence of Mr Cull regarding the status of the liquidators’ investigations and the First Plaintiff’s submissions, I am satisfied that the Access Applications should be refused. The conduct of the liquidation is ongoing, and access being granted to the documents sought would prejudice the proper conduct of the liquidation, and the investigations being undertaken by the liquidators. Further, it appears from the material filed by the Access Applicants that they seek to access documents on the Court file in order to pursue a range of grievances, some of which are the subject of other extant litigation, including two proceedings in the Supreme Court of Victoria and a proceeding in this Court concerning the bankruptcy of one of them. To the extent that the liquidators have documentation relevant to other litigation being pursued by the Access Applicants, access should be sought, and regulated, through those proceedings.

19    The Access Applications are refused.

Associate:

Dated:    5 October 2026