Federal Court of Australia

Sijabat (Liquidator) v Avance Urban Pty Limited, in the matter of Avance Urban Pty Limited (In Liquidation) [2026] FCA 1590

ORDERS

THE COURT ORDERS THAT:

1.    The Interlocutory Process dated 7 October 2026 be dismissed.

2.    The first to fourth interested persons (Applicants), being the applicants to the Interlocutory Process dated 7 October 2026, pay the costs of the Interlocutory Process of Ms Louisa Sijabat as liquidator of Avance Urban Pty Ltd (in liq) (Liquidator) by way of lump sum.

3.    In relation to the quantification of the lump sum costs order:

(a)    the Liquidator file and serve any affidavits and written submissions by 6 November 2026;

(b)    the Applicants file and serve any affidavits and written submissions by 20 November 2026;

(c)    the Liquidator file and serve any affidavits and written submissions in reply by 27 November 2026; and

(d)    the matter be decided on the papers.

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:

Introduction

1    By interlocutory application dated 7 October 2026, Mrs Natalie King, Mr Andrew King, 406 LBRD Pty Ltd, MMP Industrial Pty Ltd and MMP (NZ) Holdings Pty Ltd (the Applicants) seek certain orders pursuant to r 11.5 of the Federal Court (Corporations) Rules 2000 (Cth) (Corporations Rules), s 35A(5) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and s 596F of the Corporations Act 2001 (Cth) (Corporations Act).

2    The relief claimed relates to orders made by a Registrar of the Court on the application of Ms Louisa Sijabat (Liquidator) in her capacity as liquidator of Avance Urban Pty Ltd (Avance). In the proceedings before the Registrar, the Liquidator was named as the plaintiff and Avance was named as the only defendant.

3    The Applicants’ interlocutory process seeks orders that:

(a)    the examination summonses issued pursuant to s 596B of the Corporations Act addressed to each of the following (Summonses) be set aside or stayed pending final determination of NSD1793/2026 (Substantive Proceedings):

(i)    Natalie Jia King;

(ii)    Andrew James King;

(iii)    Yuanling Jiang;

(iv)    Zhinan Wu;

(v)    Cheng Li;

(vi)    Adam Scott Phillips; and

(vii)    Manjula Koralge;

(b)    the orders for production issued pursuant to s 597(9) of the Corporations Act addressed to the following (Production Orders) be set aside or stayed pending final determination of the Substantive Proceedings:

(i)    ACN 631 629 966 Pty Ltd;

(ii)    406 LBRD Pty Ltd;

(iii)    MMP Industrial Pty Ltd;

(iv)    MMP (NZ) Holdings Pty Ltd;

(v)    WKJ Pty Ltd;

(vi)    Signum Business Advisers Pty Ltd;

(vii)    Prime Partners Pty Ltd;

(viii)    Westpac Banking Corporation;

(ix)    BNY Trust Company Australia Ltd; and

(x)    Perpetual Ltd;

(c)    any access orders made in respect of the documents produced to the Court in relation to the Production Orders be set aside or stayed pending final determination of the Substantive Proceedings; and

(d)    to the extent necessary, the time to seek the relief sought in the interlocutory process be extended.

4    The Substantive Proceedings were commenced by the Liquidator and Avance against Mr and Mrs King and 406 LBRD Pty Ltd on 25 September 2026. An application for an asset preservation order was resolved by agreement on an undertaking by Mrs King on 2 October 2026. The Substantive Proceedings were foreshadowed by a letter dated 18 September 2026, in which the Liquidator’s solicitor described the Liquidator’s claims as “indefensible”.

5    At the first case management hearing on 20 October 2026, I raised a question in relation to the standing of the Applicants to rely on s 35A(5) of the FCA Act, given that the Applicants were not parties to the proceedings before the Registrar. I also raised a question as to whether r 39.05(c) of the Federal Court Rules 2011 (Cth) (FCR) might provide a jurisdictional basis for the Applicants’ challenge to the Production Orders. I set the application down for hearing today in light of the fact that some of the examinations are due to take place on Monday, 26 October 2026.

6    At the hearing today, the Applicants expanded the jurisdictional basis of their interlocutory process to include r 39.05(c) of the FCR, but maintained their reliance of s 35A(5) of the FCA Act.

Lack of standing under s 35A(5)

7    Section 35A(1) confers certain powers on Registrars, which include the power to summon a person for examination under s 596B of the Corporations Act and to direct a person to produce books under s 597(9) of the Corporations Act. Sections 35A(5) and (6) provide as follows:

(5)    A party to proceedings in which a Registrar has exercised any of the powers of the Court under subsection (1) may, within the time prescribed by the Rules of Court, or within any further time allowed in accordance with the Rules of Court, apply to the Court to review that exercise of power.

(6)    The Court may, on application under subsection (5) or of its own motion, review an exercise of power by a Registrar pursuant to this section and may make such order or orders as it thinks fit with respect to the matter with respect which the power was exercised.

8    The standing requirement in s 35A(5) means what it says. It is only a person or entity who was “a party” in the proceedings before the Registrar who is entitled to seek review of a Registrar’s decision under s 35A (and, for that matter, under r 3.11 of the FCR): Complete Constructions (Aust) Pty Ltd v Jeff Manny Pty Ltd (in liq) [2014] FCA 293 at [26] (Foster J); Deputy Commissioner of Taxation v Apollo Kitchens (NSW) Pty Ltd, in the matter of Apollo Kitchens (NSW) Pty Ltd [2024] FCA 282 at [6] and [12]–[13] (Lee J); Metledge v Woori International Pty Ltd, in the matter of TJM Holdings Group Pty Ltd [2025] FCA 1130 at [11]–[14] (Halley J). Rule 3.11 of the FCR imposes a 21-day time limit on the application for a review under s 35A(5), and re-iterates that the application can only be made by a party.

9    The only parties to the proceedings before the Registrar were the Liquidator as the plaintiff and Avance as the defendant. Accordingly, it is only those parties who can apply for a review under s 35A(5), which may well have taken place if the Liquidator had not obtained the orders which she sought from the Registrar. As is typical in such applications, none of the persons or entities the subject of the Summonses or Production Orders were made parties to those proceedings.

10    Surprisingly, a practice has developed over a number of years of challenges to liquidators’ examination orders and orders for production being brought pursuant to s 35A(5), despite the fact that the persons or entities subject to those orders were not parties to the proceedings before the Registrar, and without the liquidator taking any objection based on lack of standing. Some of the cases (such as the second case in the list below) invoke s 35A because of a perception that there was no other express ground of jurisdiction for challenging orders for production made by a Registrar (given that r 11.5 of the Corporations Rules refers only to examination summonses), but no reference was made to r 39.05(c) of the FCR concerning the variation or setting aside of interlocutory orders generally, which fills the perceived gap. Some examples of the erroneous use of s 35A(5) to challenge orders by Registrars despite the applicant not having been a party to the proceedings before the Registrar may be found in:

(a)    Trevor, in the matter of Bell Group NV (in liq) (No 2) [2017] FCA 927; (2017) 122 ACSR 418 at [19] (liquidator’s examination summonses and orders to produce documents);

(b)    Cathro (in his capacity as liquidator of Lidcombe Plastering Services Pty Ltd (in liq) v Golman [2018] FCA 1138 at [26]–[30] (liquidator’s orders to produce documents);

(c)    Giraud v Albarran (Liquidator), in the matter of Digital Infrastructure Pty Ltd (in liq) [2021] FCA 1274; (2021) 156 ACSR 236 at [30] (liquidator’s orders to produce documents);

(d)    Lombe, in the matter of Babcock & Brown Ltd (in liq) [2022] FCA 957 at [74]–[79] (liquidator’s examination summonses and orders to produce documents);

(e)    Kirk, in the matter of Westlink Pty Ltd (Receivers Appointed) [2023] FCA 893; (2023) 170 ACSR 549 at [33]–[35] (receivers’ examination summonses and orders to produce documents);

(f)    Arab v Pan, in the matter of Pan (No 3) [2024] FCA 563 at [17] (bankruptcy trustee’s orders to produce documents);

(g)    Ghedia (Liquidator), in the matter of SK Homes Aus Pty Ltd (in liq) [2024] FCA 859 (liquidators’ examination summonses and orders to produce documents);

(h)    Gidley, in the matter of Steel City Formwork Pty Ltd (in liq) [2025] FCA 739 at [1]–[3] (liquidator’s examination summonses and orders to produce documents); and

(i)    Elks, in the matter of Moreton Resources Ltd (Receivers Appointed) [2025] FCA 1670; (2025) 176 ACSR 139 at [76]–[79] (receiver’s examination summonses and orders to produce documents).

11    One case in which the question of standing did arise was Deputy Commissioner of Taxation v AGJ Businesses Pty Ltd [2024] FCA 400 at [19], in which Cheeseman J said that in so far as the applicant purported to bring an application for review of the Registrar’s decision (to wind up a company in insolvency) under s 35A(5) of the FCA Act and r 3.11 of the FCR, it was necessary for her to bring that application in the company’s name because an application for review can only be brought by a party. However, Cheeseman J said that there would be no utility in granting leave to the applicant to bring a review application in the company’s name (which I understand to be a reference to an application for leave to bring derivative proceedings under ss 236–7 of the Corporations Act).

12    There are important practical consequences in the Federal Court which turn on whether a review under s 35A(6) is an available avenue in cases of this kind. A review under s 35A(6) does not focus on error in the Registrar’s decision, but is a hearing de novo in which the matter is considered afresh on the evidence and on the law at the time of the review, so as to satisfy the supervisory condition under the Constitution that enables judicial power to be delegated to a Registrar: Bechara v Bates [2021] FCAFC 34; (2021) 286 FCR 166 at [17] (Allsop CJ, Markovic and Colvin JJ). The onus remains on the liquidator on a review under s 35A(6) to satisfy the Court that the orders originally granted by the Registrar were justified: Robson v Body Corporate for Sanderling at Kings Beach CTS 2942 [2021] FCAFC 143; (2021) 286 FCR 494 at [63] (Colvin J, with whom Allsop CJ, Markovic, Derrington and Anastassiou JJ agreed on this point). By contrast, under r 11.5 of the Corporations Rules and r 39.05(c) of the FCR, the person challenging the Registrar’s orders must demonstrate a positive case for intervention.

13    Most significantly, on a review under s 35A(6), the liquidator would have to prove the purpose of the examination and demonstrate the connection between the documents sought by way of orders for production and the examinable affairs of the company. They are matters dealt with by way of the affidavit required under s 596C of the Corporations Act, which under subs 596C(2) is not available for inspection except so far as the Court orders. While the liquidator could in theory prepare a wholly new affidavit for use in the review under s 35A(6), in practice the liquidator may feel compelled for reasons of cost and efficiency to make public the otherwise confidential affidavit relied on before the Registrar. In any event, whether or not a new affidavit is made by the liquidator, the liquidator must still disclose the purpose of the examination and orders for production on a s 35A(6) review, being the very matter which the legislature prudently decided should be kept confidential unless the Court is persuaded otherwise in the particular circumstances. Enforcing the standing requirement in s 35A(5) is fundamental to ensuring the integrity of the procedure for which Parliament has provided under s 596C, noting the means which are properly available under r 11.5 of the Corporations Rules and r 39.05(c) of the FCR for challenges to Registrars’ decisions of this nature.

14    The problem is starkly illustrated by the recent challenge to orders obtained by the liquidator of Steel City Formwork Pty Ltd. In Crane v Gidley (in his capacity as liquidator of Steel City Formwork Pty Ltd (in liq)) [2025] FCA 739, the challenge to the orders obtained by the liquidator from the Registrar was argued on the basis that the liquidator had not, on the review under s 35A(6), provided any evidence as to the purpose of the production of documents and their relevance to the examinable affairs of the companies in liquidation (see [17]). It was not evident to Younan J how the liquidator was to demonstrate his purpose without revealing the contents of the confidential affidavit under s 596C (at [18]). Justice Younan dismissed the application challenging the orders. However, Meagher J granted leave to appeal, finding that it was arguable that Younan J had not proceeded on the basis that a review under s 35A(6) is in the nature of a hearing de novo where the onus lies on the liquidator to justify the orders originally sought: Crane v Gidley (in his capacity as liquidator of Steel City Formwork Pty Ltd (in liq)) [2026] FCA 770 at [71]. The liquidator then appears to have capitulated: Crane v Gidley (in his capacity as liquidator of Steel City Formwork Pty Ltd (in liq)) (No 2) [2026] FCA 1368.

15    However, once it is appreciated that the person seeking a review under s 35A(5) lacks standing to do so in circumstances where the person was not a party to the proceedings before the Registrar, the problem in relation to onus and the need for the liquidator to give evidence in open court as to the purpose and relevance of the orders sought falls away. As I have said, under r 11.5 of the Corporations Rules and r 39.05(c) of the FCR, the party challenging the orders will bear the onus of establishing a sufficient ground for interference with the orders. The party challenging the Registrar’s orders will not obtain access to the confidential affidavit under s 596C merely by reason of making that challenge, and will need to persuade the Court under s 596C that inspection is appropriate.

16    In the present case, the Applicants were not parties to the proceedings before the Registrar and therefore lack standing to apply for a review under s 35A. As explained below, the Applicants have standing under r 11.5(2) to challenge the Summonses which are directed to them, noting that that provision refers expressly to the person who is served with an examination summons applying to the Court for an order discharging the summons. The Applicants also have standing to seek to set aside the Production Orders under r 39.05(c) of the FCR.

17    I should emphasise that I am concerned only with the procedural position in the Federal Court. In the Supreme Court of New South Wales, there is a similar practice of challenges to registrars’ orders for examination and production being made by way of review of the registrars’ orders (specifically, under r 49.19 of the Uniform Civil Procedure Rules 2005 (NSW), despite r 49.19(1) stating that it is only available “on application by any party”). While it has been held that that is the applicable process for an application for the discharge of a liquidator’s examination summons issued by a registrar, the nature of such a review in the Supreme Court differs from its counterpart under s 35A(6) of the FCA Act, in that the Supreme Court of New South Wales is not restricted by the Constitutional imperative of a hearing de novo in which the liquidator bears the onus; thus the Supreme Court has a discretion in relation to the process of review, and the person seeking a review must make out a positive case for interference with the registrar’s orders: Wily re LED (South Coast) Pty Ltd [2009] NSWSC 946; (2009) 76 NSWLR 428 (Wily) at [23]–[29] (Barrett J). It is a matter for the Supreme Court of New South Wales to construe its own rules and to determine its own procedures, as to which I express no view.

Should the Summonses and Production Orders be set aside or stayed?

18    In relation to r 11.5 of the Corporations Rules, the 3-day time limit from service of the examination summons expired on 25 September 2026, and the Applicants filed their Interlocutory Process on 8 October 2026. They therefore need an extension of time to proceed under r 11.5. Another limitation of r 11.5 is that its language suggests that the application may be made only in relation to the examination summons directed to the applicant for discharge of the summons, rather than examination summonses directed to other persons: Secatore, in the matter of Last Lap Pty Ltd (in liq) (No 3) [2020] FCA 1289 at [23] (Anderson J). Further, r 11.5 is concerned with discharge of the examination summons rather than with orders to produce documents under s 597(9) of the Corporations Act. However, r 39.05(c) is not limited in any of those ways. Nor does it contain an express standing requirement, and in my view an order may be varied or set aside under that sub-rule on the application of any person whose interests are sufficiently affected by the order and not only by the person against whom the order operates. I will therefore deal with the Interlocutory Process on its merits as an application made under r 39.05(c).

19    The Applicants contend that, in light of the fact that the Liquidator has already commenced the Substantive Proceedings which she regards as indefensible (and in addition sought and obtained asset-preservation orders), the relevant question is whether the Liquidator may compel existing defendants to disclose matters relevant to their defences in response to those existing claims outside of, and indeed before, the compulsory processes in the litigation, in particular as to pleadings, discovery and evidence. The Applicants contend that this is not permissible, and as such is an abuse of process and is oppressive to the Applicants.

20    The contention fails at the outset for want of any evidence that that is in fact the Liquidator’s purpose, let alone the Liquidator’s predominant purpose in seeking the Summonses and Production Orders. The relevant principle is that, if the predominant purpose of an examination (and associated orders for the production of documents) is collateral or foreign to the statutory purpose of such an examination, the application will amount to an abuse of process: Walton v ACN 004 410 833 Ltd [2022] HCA 3; (2022) 275 CLR 508 (Walton) at [19] (Kiefel CJ and Keane J), [131] (Edelman and Steward J). The only evidence before me is the affidavit of Mr Andrew King of 9 October 2026 (in which he expresses concerns to the effect that the Liquidator may question him and his wife about the subject matter of the Substantive Proceedings), and the affidavit of the Liquidator’s solicitor, Mr Blake O’Neill, of 21 October 2026. Mr O’Neill’s affidavit refers to the Substantive Proceedings but does not say that the purpose of the Summonses and Production Orders is to gain some advantage in that litigation. Rather, Mr O’Neill gives evidence of his instructions that the Liquidator seeks to investigate (a) a loan account labelled “LBRD Capital” under which Avance appears to owe a substantial sum of money, (b) a mortgage over Mrs King’s property which was registered on 24 September 2026 in favour of Chaorin Jiang (who is not a party to the Substantive Proceedings), and (c) the financial position of Mr and Mrs King. Mr O’Neill says that those matters are in addition to the matters and topics the Liquidator seeks to investigate as set out in the confidential affidavit (at [38]). However, the Liquidator has kept confidential her affidavit of 17 July 2026 in support of her application for the Summonses and Production Orders, and it has not been read at the hearing of this application. Accordingly, I am not aware of its contents.

21    The Applicants take particular issue with the proposed investigation of the mortgage registered over Mrs King’s property on 24 September 2026. However, I regard that as plainly relevant to whether Mrs King is likely to have the wherewithal to be able to satisfy any judgment against her in the Substantive Proceedings. That is an aspect of the examinable affairs of Avance as a claimant in the Substantive Proceedings, and investigating that matter is a proper purpose. That topic may overlap with the question whether Mrs King has complied with her undertaking given to resolve the application for asset preservation orders, but I do not regard it as appropriate for me at this stage to prevent the Liquidator from asking questions about that matter.

22    Even if one assumes that the examinations may overlap with the subject-matter of the Substantive Proceedings, that would not be sufficient in itself to establish an improper purpose. It is well-established that the fact that there is other litigation to which an applicant for an order for examination and the proposed examinee are parties, and the examination will touch on the matters the subject of that proceeding, does not mean that the examination is an abuse of process: Re Narda Holdings Pty Ltd [2026] FCA 1043 at [76] (McDonald J). It is proper for an examination to deal with the strengths of any claims and likely defences in those other proceedings, and whether a potential defendant has the ability to meet a judgment: Ford (in their capacity as joint and several liquidators of Careers Australia Group Ltd) (in liq) v McKendry [2021] FCA 613 at [39] (Cheeseman J); Wily at [37]–[38]. However, the examination procedure may not be used as a dress rehearsal for the cross-examination of a person in a pending or subsequent action, at least if the offensive purpose is the predominant purpose: Evans v Wainter Pty Ltd [2005] FCAFC 114; (2005) 145 FCR 176 at [252(6) and (8)] (Lander J, with whom Ryan and Crennan JJ agreed); Hong Kong Bank of Australia Ltd v Murphy (1992) 28 NSWLR 512 at 518–9 (Gleeson CJ, with whom Mahoney and Priestley JJA agreed). There is no indication in the evidence that the Liquidator intends to embark on such a dress rehearsal.

23    The Applicants rely on the reasoning of Gageler J in Walton at [110] and [117], to the effect that it is an abuse of process to pursue an unfair forensic advantage which the examination would give to the examiner over the examinee in existing litigation. However, there is no evidence that the Liquidator has any such purpose, let alone a predominant purpose to that effect.

24    The Applicants make a particular challenge to certain aspects of the Production Orders to Mr King, Mrs King, 406 LBRD Pty Ltd, MMP Industrial Pty Ltd and MMP (NZ) Holdings Pty Ltd in relation to bank accounts and company financial statements since 1 July 2024 and tax returns of Mr and Mrs King since 1 March 2024. Mr and Mrs King and 406 LBRD Pty Ltd are the defendants in the Substantive Proceedings, and those documents bear upon their ability or otherwise to meet a judgment debt in those proceedings. The other two companies were part of what appears to have been a closely integrated corporate group, and transactions involving them may well become the subject of claims by the Liquidator beyond those raised currently in the Substantive Proceedings.

25    In their written submissions, but not in their Interlocutory Process, the Applicants seek access to the Liquidator’s confidential affidavit pursuant to s 596C(2) of the Corporations Act. The Applicants accept that they will not be permitted access to such material to enable them to “fish” for a case, and there must be material before the Court from which it appears that they have an arguable case to which the material is relevant before the discretion should be exercised in their favour: Re Excel Finance Corporation Ltd (Receiver and Manager Appointed); Worthley v England (1994) 52 FCR 69 at 94C (Gummow, Hill and Cooper JJ). I do not regard the Applicants as having established an arguable case, and I regard the application to inspect the confidential affidavit as a fishing expedition in search of an arguable case.

26    The Applicants also raise an alternative set of orders staying or adjourning the Summonses and Production Orders pending the final determination of the Substantive Proceedings. The evidence of Mr O’Neill gives rise to an inference that one of the purposes of the examinations is to assess the wherewithal of the defendants in the Substantive Proceedings to meet a judgment against one or more of them in those proceedings. That is a matter which may well have a bearing on the Liquidator’s decision to continue those proceedings or to compromise them. That is an entirely proper purpose, which would be defeated if the Summonses and Production Orders were stayed pending the determination of the Substantive Proceedings. Accordingly, I reject the application for a stay or adjournment.

27    I also refuse the application for an extension of the time stipulated in r 11.5, as such an extension would be pointless in circumstances where the application fails on its merits.

28    The Applicants also seek directions pursuant to s 596F of the Corporations Act limiting the area of questioning that may be pursued in the examinations in view of the fact that the Substantive Proceedings will not have been heard at that time. I do not regard it as appropriate to make any such directions at this stage. Any concerns about particular lines of questioning can be addressed by the Registrar conducting the examination, who will be able to determine in light of particular questions whether the process is being abused: see Re Mustang Marine Australia Services Pty Ltd [2014] NSWSC 136 at [47] (Brereton J); Re Narda Holdings Pty Ltd at [87].

29    Accordingly, the Interlocutory Process should be dismissed with costs. The Liquidator seeks a lump sum costs order, and I regard it as appropriate and practicable to make such an order. I will therefore set a timetable for affidavits and written submissions on the quantification of the lump sum costs order, which I will decide on the papers.

Associate:

Dated:    23 October2026

SCHEDULE OF PARTIES