Federal Court of Australia

Kokkinos (Liquidator), in the matter of JOD Purchasing and Supply Pty Ltd (in Liquidation) [2026] FCA 1533

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to section 588FF(3)(b) of the Corporations Act 2001 (Cth) (Act), the time for the making of any application in respect of JOD Purchasing and Supply Pty Ltd (ACN 614 363 496) (In Liquidation) (Company) under section 588FF(1) of the Act be extended to 20 July 2027.

2.    The costs of this proceeding be costs in the liquidation of the Company.

3.    Liberty to apply.

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

REASONS FOR JUDGMENT

ANDERSON J:

Introduction

1    By originating process dated 7 September 2026, the plaintiff, as liquidator of JOD Purchasing and Supply Pty Ltd (in liquidation) (JOD), applies under s 588FF(3)(b) of the Corporations Act 2001 (Cth) (Act) to extend the time within which the liquidator may make an application for orders pursuant to s 588FF(1) of the Act in respect of voidable transactions.

2    I listed this matter for hearing before me, as the Commercial and Corporations duty judge, on 17 September 2026. On the afternoon of 16 September 2026, the solicitors for two of the potential defendants to the application, Strongman & Crouch, wrote to my chambers seeking an adjournment of the matter, which the liquidator agreed to. Accordingly, I made various timetabling orders on 17 September and listed the matter for hearing on 14 October 2026.

3    I was informed on 13 October 2026 that Strongman & Crouch no longer acted for one of the potential defendants, LSP Scaffolding Pty Ltd, and the other potential defendant, Collective Construction Group Pty Ltd, did not seek to put on any material or to be heard in respect to the application.

4    There being no other appearances, the application proceeded unopposed. The originating process initially sought an extension of 12 months but at the hearing counsel for the plaintiff, Vicki Bell, informed me that a period of only 10 months is now sought (as reflected in the liquidator’s written submissions dated 15 September 2026).

5    I granted the orders sought by the liquidator pursuant to s 588FF(3)(b) of the Act extending the time for the making of any application in respect of JOD under s 588FF(1) of the Act to 20 July 2027. These are my reasons for doing so.

6    The liquidator relies upon a principal affidavit sworn by him on 7 September 2026 (Kokkinos Affidavit) and a supplementary affidavit sworn by him on 15 September 2026. The liquidator also relies on the following affidavits of service:

(a)    affidavits affirmed by Jane Isabella Carmel on 15 September 2026, 16 September 2026 (which in turn annexed various affidavits of process servers) and 9 October 2026; and

(b)    an affidavit affirmed by Brent Gerald Reeks on 16 September 2026.

Background

7    JOD was incorporated on or about 22 August 2016 and ceased trading on or around 18 August 2023. JOD operated a business in the building and construction industry and formed part of a broader group of commonly controlled entities associated with the Steller Group.

8    Mr Kokkinos was appointed liquidator of JOD by its members on 20 September 2023.

No assets available to fund investigations into potential voidable transactions

9    At the time of Mr Kokkinos’ appointment, JOD had limited funds. Save for a $33,000 indemnity for the liquidator’s remuneration and expenses provided by the director, the liquidation was unfunded. JOD had outstanding employee entitlements of approximately $1 million and significant amounts owing to the Australian Taxation Office (ATO).

10    As at 7 September 2026, the liquidator had received proofs of debt from approximately 47 parties totalling approximately $7.5 million, of which 24 are in relation to unsecured creditors for claims of approximately $5.7 million. Two related parties of JOD have registered security interests over its assets on the Personal Property Securities Register, which the liquidator says are subject to further investigation.

11    On 15 July 2024, an unfair preference proceeding was issued against the ATO in the Supreme Court of Victoria. The alleged preference was in the amount of $300,391.21. That proceeding settled on 20 August 2024. The settlement amount was insufficient to fund further investigations into potential claims.

12    Various letters of demand have been sent by the liquidator.

13    Unless recovery actions are taken, there will be no return to ordinary unsecured creditors.

Funding agreement

14    On 22 January 2025, creditors approved JOD’s entry into a funding agreement with the Commonwealth, through the Department of Employment and Workplace Relations. The funding agreement was amended on 7 May 2026 to expand the scope of agreed work to include investigations, public examinations and obtaining legal advice. It was further amended on 24 August 2026 to include the filing and conduct of this application.

Books and records

15    Notices under s 530B of the Act were issued by the liquidator on 30 January 2024 to Netspan Pty Ltd and on 15 November 2024 to Mr Lee Allen, Mr Maurice Pitard, Mr Ryan McMahon and Mr Angelo Muraca. Although certain information and documents were produced in response to those notices, the records obtained remain incomplete. Netspan has continued to assert that it does not hold books or records of JOD. The liquidator says he will consider whether to pursue a warrant under s 530C of the Act following the public examinations.

Potential claims

16    The liquidator is currently investigating potential claims and the substance of each claim is outlined in detail at paragraph 26 of the Kokkinos Affidavit. In summary, they are:

(a)    creditor-defeating disposition, uncommercial transaction and unreasonable
director-related transaction claims against Collective Construction Group Pty Ltd in respect of the sale of plant and equipment worth over $2 million;

(b)    unreasonable director-related transaction and unfair preference against LSP Scaffolding Pty Ltd for $100,000;

(c)    creditor-defeating disposition and uncommercial transaction for $1,200,000 against Terence Wight, Lee Allen, Ryan McMahon and the Estate of Maurice Pitard;

(d)    a claim for recovery of insurance premiums paid by JOD for the benefit of entities in the Pitard Group for $133,500;

(e)    insolvent trading claims against related companies and Lee Allen, Ryan McMahon and the Estate of Maurice Pitard for an amount yet to be quantified; and

(f)    debt claims against Project 179, Lee Allen, Ryan McMahon and the Estate of Maurice Pitard for $921,358.05.

Principles

17    Section 588FF(3) of the Act provides:

An application under subsection (1) may only be made:

(a)    during the period beginning on the relation-back day and ending:

(i)    3 years after the relation-back day; or

(ii)    12 months after the first appointment of a liquidator in relation to the winding up of the company;

whichever is the later; or

(b)    within such longer period as the Court orders on an application under this paragraph made by the liquidator during the paragraph (a) period.

18    The power of the court to extend the time within which a liquidator could bring proceedings challenging voidable transactions under s 588FF(3) of the Act may only be exercised within the period set out in s 588FF(3)(a): Grant Samuel Corporate Finance Pty Ltd v Fletcher [2015] HCA 8; 254 CLR 477 at [17] and [22]–[23] (French CJ, Hayne, Kiefel, Bell, Gageler and Keane JJ); citing Gordon v Tolcher [2006] HCA 62; 231 CLR 334 at [37] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ).

19    Orders pursuant to s 588FF(3)(b) can be made in general terms where it is not possible to identify the relevant persons against whom proceedings might be issued or the specific proceedings that might be issued: see, eg, Tolcher v Capital Finance Australia Ltd [2005] FCA 108; 143 FCR 300 (Tamberlin J); Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher [2015] HCA 10; 254 CLR 489, in particular at [24]–[27] (French CJ, Hayne, Kiefel, Gageler and Keane JJ). Applications for orders in general terms are referred to as “shelf orders”.

20    The principles governing the Court’s exercise of discretion were summarised by reference to various authorities by McEvoy J in Bester, in the matter of Mirror Trading (Pty) Ltd (in liquidation) [2024] FCA 305 at [14]–[18] as follows:

The principles governing the exercise of discretion in an application for an extension generally were summarised by Sifris J in Re Cohalan & Mitchell Roofing (in liq) [2020] VSC 222 at [30]–[33]. The factors to be considered were said by his Honour to be as follows:

(a)    the adequacy of the liquidator’s explanation for the delay in commencing proceedings;

(b)    a preliminary view of the merits of the proposed proceedings; and

(c)    a balancing of the case for granting the extension against any actual prejudice to the respondents that is likely to arise from granting the extension.

It is submitted that these factors flow from a more general obligation of the court to consider what is fair and just in all the circumstances, as to which see BP Australia Ltd v Brown (2003) 58 NSWLR 322 at 357–358 [187] (Spigelman CJ, with Mason P and Handley JA agreeing).

The plaintiffs submit that relevant principles distilled from other cases in the application of these factors to the present case include:

(a)    the absence of funding to conduct examinations into voidable transactions is at least one factor to be taken into account in considering the explanation for delay in commencing proceedings: Clout v Andi-Co Australia Pty Ltd (2013) 96 ACSR 512 at 521 [62] (Mullins J);

(b)    a liquidator’s hesitancy to act in circumstances where he or she is without funds may be a relevant factor in considering any explanation for the delay in proceeding: Donnellon Childcare Holdings Pty Ltd (in liq) v Donnellon [2020] FCA 1003 at [31] (Reeves J); Re Half Price Enterprises Pty Ltd [2021] FCA 805 at [21] (Markovic J);

(c)    where the liquidator’s purpose in seeking the extension of time is simply to be put into a position where they can properly decide whether to bring proceedings, a preliminary inquiry into the merits of any consequent proceedings may not always be necessary. There is a risk that in some cases, requiring a preliminary inquiry into the merits may impose an unnecessary burden on both the liquidator and the court, especially in a case where the circumstances appear to give rise to complex or disputed questions of fact and law and the evidence before the court is manifestly incomplete: Green v Chiswell Furniture Pty Ltd (in liq) [1999] NSWSC 608 at [15]–[16] (Austin J); see also Walker v CBA Corporate Services (NSW) Pty Ltd (2012) 88 ACSR 153 at 161–162 [43]–[44] (Nicholas J);

(d)    prejudice caused by an extension may be actual prejudice the subject of evidence, or there may be what is termed “presumptive prejudice”. Presumptive prejudice is recognition that facts which were once known may now be forgotten, or their significance may not now be appreciated. The possibility of presumptive prejudice diminishes where related party transactions are involved, as there may be a confluence of knowledge about the transactions; and

(e)    a shelf order may not be made for a lengthy period simply because it is convenient for the plaintiffs to defer commencing prospective proceedings while they seek to determine whether it would be commercial to do so: Franklyn Scholar (Australia) Pty Ltd [2020] NSWSC 1902 at [15] (where Black J nonetheless granted a short extension of three months: see at [18]).

The plaintiffs submit that further principles governing the making of a shelf order, as opposed to an order extending time to bring a specific claim against an identified defendant, include:

(a)    in Fortress Credit at [23]–[27] the High Court accepted that shelf orders can be made in appropriate circumstances, resolving a previous controversy in the authorities regarding whether such orders were open;

(b)    a general or blanket extension may be apposite in a large and complex liquidation where potential defendants are unidentified: Re McGrath (2004) 48 ACSR 723 at 732 [17] (Barrett J);

(c)    a shelf order may be justified to enable a liquidator to complete investigations, and identify potentially voidable transactions and defendants: Horne v Retirement Guide Management Pty Ltd (2017) 54 VR 325 at 341–342 [55] (Warren CJ, Tate and Beach JJA); and

(d)    a liquidator must prove that he or she has not been sitting idle in a liquidation to obtain such an order: ASIC v Karl Suleman Enterprizes Pty Ltd (in liq) (2005) 52 ACSR 103 at 113 [22]–[23] (Barrett J).

The plaintiffs further submit that the principles relating to giving notice to potential targets of proceedings to be brought after the shelf order is made include:

…

(e)    as a matter of procedural fairness, the common law requires that if a particular creditor is targeted as a likely defendant in voidable preference proceedings, that creditor must be given notice of the application for extension of time, and may need to be joined as a party to the application for extension of time, especially if it responds to a notice by objecting to the proposed order on substantive grounds: BP Australia at 351–352 [154] (referring to the first instance decision of Austin J), Suleman at 105 [7], Horne at 350–351 [97]; and

(f)    if there is no targeted creditor and the application for extension is made to permit the liquidator to conduct investigations necessary to identify and explore potentially preferential transactions generally, the court may grant the extension of time in general terms without specifying any particular transactions or defendants, and in that event it will not be necessary at any stage to join any particular creditor as the defendant to the application for extension: BP Australia at 351–352 [154] (referring to the decision of Austin J at first instance); see also Octaviar at 248 [64] (Barrett JA).

(Emphasis added.)

21    The length of an extension pursuant to s 588FF(3)(b) is at the Court’s discretion. A period of 10 months is not unusual. By way of example: in Mirror Trading, a 12-month extension was granted; in Lucas, in the matter of Filestock Pty Ltd (in liq) [2017] FCA 1425 (Derrington J), a case where the liquidators had faced delays in obtaining litigation funding, a roughly
eight-month extension was granted and in Giasoumi and Deane, in the matter of SLKALT Pty Ltd (in liq) [2024] FCA 403, I granted an 18-month extension in circumstances where the liquidators’ investigations were delayed due to claims of privilege limiting access to documents.

Application

22    The liquidator’s affidavits explain that the delay in commencing proceedings in this case has been primarily by reason of the need to obtain funding for investigations and examinations. The process of obtaining funding has required ongoing negotiations with the Department to finalise a funding deed and two amending deeds.

23    This is not a situation where the liquidator has sat idle. He has undertaken a significant amount of work to obtain books and records and information from JOD’s director and other sources, he has engaged an external accountant to review JOD’s Xero files and sent numerous letters of demand to potential defendants. On 13 July 2026, he also issued public examination proceedings in the Supreme Court of Victoria in respect of six examinees. Orders have been made in that proceeding requiring parties to produce documents on or before 12 October 2026. The examinations are scheduled for 12 and 19 November 2026.

24    Although the liquidator is not presently in a position to fully articulate claims that may be brought by JOD, he has identified the matters and/or transactions that may give rise to voidable transaction claims and the likely nature of the claims. In any event, by reason of the fact that the liquidator seeks an extension to permit the completion of his investigations into potential claims, a preliminary inquiry into the merits of such claims is neither necessary nor appropriate.

25    I am satisfied on the evidence that the circumstances of this case warrant granting an extension under s 588FF(3)(b) of the Act to 20 July 2027, being a period of 10 months. There are also significant unrelated and unsecured creditor claims. It is in the interests of the creditors and the broader public for an extension to be granted to enable the liquidator to conduct public examinations and pursue any available recoveries. There is no evidence to suggest the granting of the orders will result in prejudice to any party.

26    Each of the potential corporate defendants has been served with the originating process and the Kokkinos Affidavit (shelf application documents) by express post. A copy of the shelf application documents has also been emailed to the following potentially affected individuals: Lee Allen, Ryan McMahon, Andrew Mursell, Toni Chinnery and Kristy Darke and sent by express post to Terence Wight (as the liquidator had no email address for him). Accordingly, I am satisfied that they have each had the opportunity to be heard in opposition to this application. If it transpires that is not the case, the authorities are clear that they have a right to seek to have any order made set aside ex debito justitiae: see, eg, Fletcher (as Liquidators of Octaviar Administration Pty Ltd) v Anderson [2014] NSWCA 450; 292 FLR 269, in particular at [97]–[102] (Barrett JA, Beazley P agreeing at [1] and McColl JA agreeing at [2]).

Disposition

27    I will make the orders sought by the liquidator.

Associate:

Dated:    15 October 2026