Federal Court of Australia

Chambers v Hunter [2026] FCA 1502

ORDERS

THE COURT ORDERS THAT:

1. Pursuant to rule 39.05 of the Federal Court Rules 2011:

(a) paragraphs 5, 6 and 8 of the orders of Registrar Schmidt dated 23 February 2026 be set aside: and

(b) orders 2 and 3 herein be made nunc pro tunc as at 23 February 2026.

2. Christopher Cook and Nikhil Khatri (Receivers) of Worrells be appointed jointly and severally, as Receivers and Managers, without security, of:

(a) The Loadstone Super Fund; and

(b) The Loadstone Bare Trust,

(collectively, the Trusts),

with the power to:

(a) receive property of the Trusts;

(b) sell or convert into cash any property or assets of the Loadstone Super Fund;

(c) discontinue, terminate or wind up any such business, enterprise or venture, in whole or in part, necessary to winding up the affairs of the Loadstone Super Fund and Related Entities;

(d) appoint a solicitor, accountant or any other professional advisor to assist, advise or represent the Receivers;

(e) pay or distribute property of the Trusts to those properly entitled to it; and

(f) do all things necessary or convenient to be done for or in connection with or as incidental to the winding up of the affairs of the Loadstone Super Fund and the Related Entities,

together with the powers that a liquidator has in respect of property of a company pursuant to Corporations Act 2001 (Cth), s 477(2).

3. The Receivers of the Trusts are entitled to be indemnified out of the assets of the Trusts for all liabilities incurred in their capacity as Receivers including their costs of and incidental to the Applicant’s interlocutory application filed 16 September 2026.

4. The Receivers have liberty to apply for the approval of their remuneration.

5. Upon completion of the realisation of property and payment of costs and expenses, and creditors, the Receivers are to deliver to:

(a) the Court; and

(b) the Commissioner of Taxation,

a statement of receipts and payments in relation to the realisation of property and payments made by the Receivers.

6. Each party (including the Liquidators and Receivers) have liberty to apply upon the giving of 3 clear business days’ notice in writing to the other parties.

7. The parties’ costs of and incidental to the application be costs and expenses in the winding up of the Third and Fourth Respondents and be paid from the property of the Trusts.

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

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1 By this application, the applicants, Mr Nicolas Chambers and Ms Rachel Hunter, seek the setting aside of orders made by a Registrar on 23 February 2026 and the making, nunc pro tunc, of similar orders in their stead.  The orders are sought to regularise the conduct of persons who have acted pursuant to the Registrar’s orders, which appear to have been made without power.  All interested parties have been either served or made aware of this application and consent to the making of the orders.

2 For the reasons that follow, it is appropriate that the orders be made.

Background

3 On 23 February 2026, a Registrar of this Court made several orders, including:

(a) orders for the winding up of Hidden Valley Tea Gardens Pty Ltd (HVTG), Loadstone Property Holdings Pty Ltd (LPH) and Bean Face Pty Ltd (Bean Face);

(b) orders appointing Christopher Cook and Nikhil Khatri of Worrells as liquidators of HVTG, LPH and Bean Face; and

(c) orders appointing Christopher Cook and Nikhil Khatri of Worrells as joint and several receivers and managers, without security, of the following trusts, as well as consequential orders (being orders 5, 6 and 8 of the Registrar’s orders):

(i) the Loadstone Super Fund (Super Fund), a self-managed superannuation fund of the first and second applicant and the first and second respondent, of which HVTG was the trustee; and

(ii) the Loadstone Bare Trust (Bare Trust), a trust that held, as custodian, the primary asset of the Super Fund, being real property at 1560 Gradys Creek Road, Loadstone (the Property), and for which LPH was the trustee,

(together, the “Trusts”).

4 At the time those orders were made, there was no dispute, and there remains no dispute, that the receivers should be appointed to the Trusts. All parties who had interests in the Trusts supported the making of the orders for the purposes of allowing them to disentangle their respective interests.

5 There is no need to address the circumstances in which the original orders were made, though it appears that they were made by consent.  The parties jointly sent draft orders to the Court together with a request that they be made by a judge.

6 By an email of 23 February 2026, the parties were provided with a copy of the sealed orders as made by a Registrar.

7 The parties subsequently realised that the power to appoint receivers did not vest in the Registrar, and they have now applied again for the appointment of the receivers and consequential orders to allow the separation of the Trusts to continue.

The Registrar’s powers

8 The Court’s power to appoint a receiver is found in s 57 of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) and is reflected in r 14.21 of the Federal Court Rules 2011 (Cth) (Rules).

9 The powers of the Court which Registrars are permitted to exercise are enumerated in s 35A(1) of the Federal Court Act.  They do not include the power to appoint a receiver but do include any power of the Court prescribed by the Rules:  s 35A(1)(h).

10 Rule 3.01 and Sch 2 of the Rules set out the powers exercisable by Registrars for the purposes of s 35A(1)(h) of the Federal Court Act.  In particular, Pt 3.3 of Sch 2 sets out the powers under the Federal Court Act that are exercisable by a Registrar, and Pt 3.7 lists the powers under the Rules that a Registrar may exercise.  The power to appoint a receiver appears in neither.  However, it might be noted that until 5 June 2024, Pt 3.7 granted Registrars the power to “make an order in relation to the appointment of a receiver”.  That power has since been removed.

11 Otherwise, the Rules do not provide a Registrar with the power to appoint a receiver.

12 It should also be noted that the parties are unable to confer, by consent, power on the Court or a Registrar to make orders which they are not otherwise authorised to make:  Kovalev v Minister for Immigration & Multicultural Affairs (1999) 100 FCR 323.

13 Further, the power to appoint a receiver is not incidental to any other power of the Registrar.

14 It follows that the Registrar in this case did not have power to appoint the receivers.

Power to set aside the Registrar’s orders

The “slip rule”

15 The parties rely upon r 39.05 of the Rules, referred to as the “slip rule”, as the relevant basis upon which the Registrar’s orders may be set aside.  It empowers the Court to set aside a judgment or order after it is entered in the following circumstances:

39.05 Varying or setting aside judgment or order after it has been entered

The Court may vary or set aside a judgment or order after it has been entered if:

…

(d)    it is an injunction or for the appointment of a receiver; or

…

(f)     the party in whose favour it was made consents; or

…

16 Although the Rules do not expressly limit the Court’s power under r 39.05:  Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 18) (1995) 133 ALR 667, 675:  it must be exercised with caution and will ordinarily only be exercised in exceptional circumstances:  Australian Securities and Investments Commission v ActiveSuper Pty Ltd (No 4) [2013] FCA 318 [6] (ActiveSuper).  The limited use of the power is important in advancing the public interest in the finality of litigation:  Perre v Apand Pty Ltd [2004] FCA 1220 [11(b)] (Perre).  Moreover, an application under r 39.05 is neither an appeal nor an alternative to the appellate process:  Dudzinski v Centrelink [2003] FCA 308 [11]; ActiveSuper [15].

17 In this case, the receivers submit that there are compelling reasons to set aside the Registrar’s orders because:

(a) the orders were made without power;

(b) all parties who might be affected by the setting aside of the orders consent;

(c) setting aside the orders will facilitate the quick, inexpensive and efficient resolution of the dispute.  In this regard, the parties submit that if the Court were not to make the orders sought, they would be required to bring a new application or appeal seeking to set aside the orders (this factor was also relied on in Perre at [11(b)]), or would be required to find another way to resolve any difficulties that arise from the receivers’ appointment being ordered in excess of power.

18 In ActiveSuper at [15], Gordon J observed that an application under r 39.05 “is not the appropriate means by which to contend that orders of this court were made in excess of statutory jurisdiction”.  Whilst her Honour’s observations were undoubtedly correct in the context of the case before her, they are distinguishable from the circumstances of this case.  In the first instance, the parties in ActiveSuper were in dispute about whether the relevant orders were made in excess of jurisdiction.  That being so, the application to set aside the order could easily have been seen as an attempt to circumvent the appellate procedure.  Further, the observations of Gordon J were obiter, as the issue of whether the orders should be set aside was determined on other grounds.  In addition, if her Honour’s observations were taken to be an absolute rule applicable in every case, they would be inconsistent with other decisions of this Court where orders made by a Registrar in excess of power have been set aside:  see, for example, Re Bendeich; Ex parte Bendeich (1993) 41 FCR 237.

19 Therefore, it is appropriate, in the circumstances of this case, to set aside the orders 5, 6 and 8 of the Registrar’s orders of 23 February 2026 pursuant to r 39.05 of the Rules.  Those circumstances include the fact that the parties agree that the orders were made without power, that the order was in fact made without power, that any appeal would be an unnecessary burden on the parties and the Court, and that the setting aside of the orders by the current method provides a cheap and efficient method of doing so.

Application for review of Registrar’s exercise of power

20 Alternatively, the Court could set aside the Registrar’s orders pursuant to s 35A(5) of the Federal Court Act and r 3.11 of the Rules.  The latter provides:

3.11  Application for review of a Registrar’s exercise of power

(1)     A party may apply to the Court under section 35A(5) of the Act for review of the exercise of a power of the Court by a Registrar.

(2)     The application must be made within 21 days after the day on which the power was exercised.

21 Whilst it may be that the time for making such an application has well passed, the Court is able to extend time in appropriate circumstances:  Skinner v Commonwealth [2012] FCA 1194 [9] – [14].  In this case, there are ample reasons for doing so.  Of those, the most important is that the orders in question were made without power, and the parties’ respective positions require regularisation as soon as possible.  There has been no unwarranted delay in making the application, which was brought swiftly upon the applicants becoming aware of the doubtful validity of the original orders.  It is also not possible to attribute fault to the parties in the  circumstances where the orders were made by the Court; they were entitled to assume that the Court’s powers had been validly exercised.

22 Therefore, were the power under r 39.05 of the Rules not available, it would be appropriate to extend time for the making of an application under r 3.11 of the Rules and treat the application as such.  That would provide an alternative basis upon which to set aside orders 5, 6 and 8 of the Registrar’s orders.

Appointment of receivers

23 It is now necessary to consider whether orders should be made appointing the receivers to the Trusts.

24 As mentioned, the Court has broad power to appoint receivers pursuant to s 57 of the Federal Court Act.  The power arises if the Court considers it just and convenient to make the appointment.  As a general rule, the important considerations for enlivening the Court’s discretion include the protection or preservation of property:  Bond Brewing Holdings Ltd v National Australia Bank Ltd (1990) 1 ACSR 445: or where a corporate trustee loses office upon liquidation:  Re Stansfield DIY Wealth Pty Ltd (in liq) (2014) 291 FLR 17.  Though the present case does not fall neatly within the scope of those general categories, the circumstances warrant the making of the orders.

25 There is no dispute in this case as to the circumstances in which the winding up of the Trusts and the purported appointment of receivers occurred.

26 The first and second respondents to the proceedings, Mr Matthew Hunter (Matthew) and Ms Anastasia Hunter (Anastasia), are the brother and sister-in-law of the second applicant, Ms Rachel Hunter (Rachel).  Rachel and Mr Nicolas Chambers (Nicolas), the first applicant, are de facto partners.

27 The parties were joint members of the Super Fund, of which HVTG (the third respondent) was trustee.  Through LPH (the fourth respondent), acting as custodian pursuant to the Bare Trust, the Super Fund owned the Property, from which a campground business was operated.  Nicolas, Rachel, Matthew and Anastasia were the directors and shareholders of HVTG and LPH.  Bean Face (the fifth respondent) was incorporated for the purpose of operating and managing the campground business.  Rachel and Matthew were the directors and shareholders of that company.

28 Unfortunately, breakdowns in the relationships between the parties have made it untenable for them to have a continued joint interest in the management of the fund.  After the originating application was filed in this matter, they consented to the winding up of the relevant companies and Trusts and the dissolution of their joint dealings and interests therein.

29 Upon the appointment of the liquidators to HVTG and LPH, they ceased their respective formal trusteeships and became bare trustees of the Super Fund and Bare Trust.

30 HVTG and LPH were, at all relevant times, the corporate trustees of their respective trusts and operated and conducted their affairs solely in that capacity.  Therefore, for their winding up to occur, it is necessary that they exercise their respective rights of indemnity against the property of the Trusts and otherwise wind them up.  In those circumstances, it is preferable that the liquidators of the companies be appointed as receivers of the Trusts to facilitate their orderly, efficient and effective winding up and, thereafter, the liquidation of the companies.

31 It is well-established that this Court has power to appoint a receiver and manager to secure the corporate trustee’s right of indemnity out of trust assets: Hosking, Re Business Aptitude Pty Ltd (in liq) [2016] FCA 1438 [21].  That is particularly so in circumstances where the corporate trustee, now insolvent, no longer has the power to sell the trust assets to enforce its right of indemnity:  Apostolou v VA Corporation of Aust Pty Ltd [2011] FCAFC 103 [45].

32 It is also relevant that HVTG is the trustee of the Super Fund.  As it is being wound up, it is a “disqualified person” for the purposes of Pt 15 of the Superannuation Industry (Supervision) Act 1993 (Cth) (SIS Act) and cannot lawfully exercise powers in relation to the Super Fund.  Under s 126K of the SIS Act, it is an offence for a disqualified person to be, or act as, the trustee of a superannuation entity.   Despite that, neither the Super Fund trust deed nor the SIS Act automatically effects the removal of the trustee or requires its resignation upon entering liquidation.

33 In these circumstances, because any action taken by HVTG might be an offence against s 126K of the SIS Act, it is appropriate to take steps to protect the parties who have acted in good faith and appoint receivers to exercise the right of exoneration and to wind up the Super Fund.

34 As for LPH, it is a bare trustee.  By cl 5 of the trust deed of the Bare Trust, by which it was appointed trustee, it merely maintains legal title to the Property until otherwise directed by the trustee of the Super Fund, being HVTG.  By itself, it is not empowered to deal with the Property.  Accordingly, in the present circumstances, there is a risk that any direction by HVTG to LPH in respect of the Property might constitute an offence under s 126K of the SIS Act.  Therefore, if receivers are not appointed, difficulties may arise in the enforcement of the trustees’ right of exoneration, and the winding up of the Trusts could be impeded.

35 Other factors also support the appointment of the receivers. Firstly, all interested parties have consented to the making of the orders.  Second, the receivers have relied upon the Registrar’s orders of 23 February 2026 and have been acting in that capacity since then.  Notably, they have taken steps to facilitate the sale of the Property, which are ongoing.  It is important to allow those steps to continue to ensure the beneficiaries’ desired outcome.

36 All the foregoing difficulties could be overcome by the appointment of receivers to the Super Fund and the Bare Trust.  It is, therefore, appropriate that new orders be made to that effect.

Making the orders nunc pro tunc

37 The parties seek orders appointing the receivers nunc pro tunc.  The Court has power to appoint a receiver nunc pro tunc:  see, for example, Re Pracilio (in his capacity as liquidator of RFK Enterprises Pty Ltd (in liq) [2026] FCA 1087 [20].  There is particularly good reason to do that in this case, where the receivers acted pursuant to orders which, unbeknownst to all concerned, were made without power.  Moreover, there is no suggestion of any lack of good faith or honesty by any party, and all parties have consented to the orders being made nunc pro tunc.

38 Therefore, the appointment of receivers should be ordered to have effect nunc pro tunc.

Receivers’ remuneration

39 The receivers have also filed an affidavit which addresses their appointment, work completed, remuneration and legal fees.  There is no dispute amongst any of the parties that an order should be made entitling the receivers to be indemnified out of the assets of the Trusts for liabilities incurred by them in their capacity as receivers, including their costs of and incidental to this application.

40 There is also no dispute as to the receivers’ entitlement to remuneration in respect of the work which they have done and will do in the future.  However, in this case, the parties have agreed that the receivers should apply to the Court for approval of their remuneration once the relevant amounts are known.  Such an order is appropriate in the circumstances of this case.  Therefore, an order should be made giving the receivers liberty to apply for the approval of their remuneration.

Other orders

41 The parties also sought other ancillary orders supporting the appointment of the receivers.  They are appropriate in the circumstances, and there is no need to consider them in detail.

Note

42 These are the amended and revised reasons for judgment given on 30 September 2026. Whilst the reasons given above refine and develop those that were delivered ex tempore, the substance of what was said that day has not been changed nor has any other material change been made.

Associate:

Dated:    9 October 2026

SCHEDULE OF PARTIES