Accord Pacific Holdings Pty Ltd v Accord Pacific Land Pty Ltd

THE COURT ORDERS THAT:

The application for an adjournment be dismissed.
The parties are to provide short minutes of order to the chambers of Shariff J as to the balance of the orders to be made in light of Order 1. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT SHARIFF J:
At approximately 12.35 pm on 4 December 2024, I heard an urgent application made by a number of individuals and entities (the applicants), including Mr Sam Cassaniti, seeking an adjournment of the hearing of examinations which were scheduled to commence the next day. The background to the application was that each of the applicants had been served with examination summonses requiring them to attend public examinations into the examinable affairs of the three defendant corporations that are presently in liquidation, namely Sydney Exotic Aquariums Casula Pty Ltd, Richmond Lifts Pty Ltd and United Lifts Technologies Pty Ltd (the Companies). The purpose of the adjournment was to enable the applicants to be heard on their application for an extension of time to bring an application to discharge summonses that had been served on each of them. Other interlocutory relief was also sought in the interlocutory process dated 3 December 2024, but it was the adjournment application that was of pressing urgency given the examinations were due to commence in less than 24 hours. It was this application I heard.
In support of their application, the applicants read an affidavit of Quyen Thuy Tuong Nguyen affirmed 3 December 2024. The applicants sought to tender an exhibit, which was said to contain over 5,000 pages. Instead of admitting the entirety of the exhibit, I considered it more appropriate that the parties should tender only the specific documents to which my attention was to be drawn. At hearing before me, Mr Assaf SC appeared with Mr Rodgers of Counsel for the applicants. I was assisted by their careful written and oral submissions.
The relief sought by the applicants was opposed by the plaintiff in the proceedings, who is the liquidator appointed to each of the three companies (the Liquidator). Mr Rose of Counsel appeared for the Liquidator, and I was assisted by his oral submissions.
The applicants (ultimately) submitted that in order to be satisfied that I should exercise my discretion to grant an adjournment, I needed to be satisfied of the following matters:
whether there was an arguable case that the applicants would be successful in seeking to set aside the examination summonses and, in turn, this depended on it being shown that the applicants had an arguable case that they would be successful in setting aside those summonses on the basis that the examinations were being undertaken by the Liquidator for an improper purpose, as explained below: relying, inter alia, upon O'Brien v Wily re LED (South Coast) Pty Ltd [2009] NSWSC 946; (2009) 76 NSWLR 428 at [27] (Barrett J); Accord Pacific Holdings Pty Ltd v Accord Pacific Land Pty Ltd (in liq) [2011] NSWSC 707 at [43]-[47] (Ward J, as her Honour then was);
whether there was an adequate explanation for the delay in applying to set aside the examination summonses, and that any such delay had not occasioned relative prejudice: relying upon Trevor; Bell Group NV (In Liq), Re [2016] FCA 851; (2016) 116 ACSR 294 at [21]-[24] (Yates J); Ri Ji Woo International Education Centre Pty Ltd [2019] NSWSC 93; (2019) 134 ACSR 448 at [28] (Black J); and Ford, Careers Australia Group Ltd (in Liq) [2021] FCA 613 at [27] (Cheeseman J); and
whether the interests of the administration of justice lay in favour of the grant of the adjournment: relying upon AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175.
The applicants submitted that there was sufficient evidence to conclude that it was arguable that the dominant purpose of the proposed examinations was to conduct an inquiry into the taxation affairs of Mr Cassaniti and persons or companies related to him. This submission was supported by the following contentions.
First, it was pointed out that the Liquidator was being funded by a single creditor, the Commissioner of Taxation. This fact, together with the other facts below, was said to be supportive of an inference that the true purpose of the proposed examinations was the improper purpose of inquiring into the tax affairs of Mr Cassaniti.
Second, the applicants pointed to the breadth of the categories of documents required to be produced and the extraordinary range of persons to whom the orders are addressed. In this regard, emphasis was placed on the following facts:
each order for production has a definition "Related Entities of Mr Cassaniti", and seeks documents recording, referring to or otherwise concerning any payments from any of the Companies to Related Entities of Mr Cassaniti or to Mr Cassaniti;
the orders for production define "Grantors of the Global Security Deed" as 55 separate companies, most of which were claimed to have no apparent link to the Companies. They also contain a definition of the "Secured Parties of the Global Security Deed" as three entities related to Mr Cassaniti. The orders for production require production of any document referring to an amount owing, now or previously, to the Secured Parties of the Global Security Deed by any one or more of the Grantors of the Global Security Deed. It was submitted that it "is difficult to discern a link between money owing by any of the 55 companies to three companies associated with [Mr Cassaniti] and the 'examinable affairs' of the Companies".
It was submitted that the breadth and subject matter of these orders for production gave rise to an arguable inference that the purpose of these orders and the examinations was to focus on Mr Cassaniti and not the Companies.
Third, it was submitted that the common link between the persons to whom the examination orders are addressed is a link with Mr Cassaniti, rather than a link with any of the Companies. It was observed that the examination summonses and orders for production were issued to Mr Cassaniti's wife, Ms Thi Linh Trinh; his cousin, Mr David Salvatore Cassaniti; Mr Salvatore Cassaniti's wife, Ms Marolina Cassaniti; and Mr Cassaniti's sister's son, Mr Stefan Morvillo. It was claimed that none of them have an apparent link with the Companies but all have an apparent link with Sam Cassaniti. It was said that this was supportive of the inference that there is an arguable case that the true purpose of the examinations was to inquire into Mr Cassaniti's tax affairs.
Fourth, it was pointed out that the Australian Taxation Office (ATO) had been investigating the affairs of the persons and entities named in the various examination summonses and orders for production. It was said that this indicated that it was arguable that the examination summonses were being pursued in furtherance of these tax investigations and not the examinable affairs of the Companies.
Fifth, it was submitted that a review of the various reports of the Liquidator, together with other objective evidence, established that there was an absence of any commercially plausible purpose of recovering assets on behalf of the Companies. It was said that this gave rise to an inference of an arguable case that the Liquidator's purpose was not to recover money for the benefit of creditors, but to pursue a collateral purpose.
The applicants submitted that in an application such as this the Court should consider the matter in stages: first, make a decision whether to grant the applicants access to confidential material; second, determine whether the applicants have an arguable case to seek an extension of time to set aside the examination summonses; third, determine whether there is an adequate explanation for the delay in making an application to set aside the examination summonses; fourth, determine whether the applicants have an arguable case that the examination summonses should be set aside because they are being pursued for an improper purpose; and finally, weigh these matters in the balance as against the relative prejudice to the affected parties. In support of this staged approach, reliance was placed, in part, on the decisions in Simionato v Macks (1996) 19 ACSR 34 at 45-46 (Lander J); Re Leisure Developments (2002) 41 ACSR 276 at 286 [50] (Black J); and Re Pleash; Equititrust Ltd (In Liq) (Recs and Mgrs Apptd) (No 2) (2017) 122 ACSR 299 at [10] (Reeves J). However, each of these authorities concerned applications where, in the course of seeking to set aside examination summonses, one or more applicants sought production of the confidential and other material relied upon by the Liquidator to successfully seek orders for the examination summonses to issue in the first place.
Here, in the first instance, the most urgent relief being sought was not the application to set aside the examination summonses or an application for access to the documents upon which the Liquidator relied. Rather, the immediate issue before me was whether I was satisfied that the hearing of the examination summonses to occur in less than 24 hours' time should be vacated and adjourned. Ultimately, during the course of oral argument before me, the parties in substance agreed that I should deal with the application for the adjournment by assessing the matters set out at [4] above.
Rule 11.5(2) of the Federal Court (Corporations) Rules 2000 (Cth) (Corporations Rules) provides: Within 3 days after the person is served with the examination summons, the person may apply to the Court for an order discharging the summons by filing: (a) an interlocutory process seeking an order discharging the summons; and (b) an affidavit stating the facts in support of the interlocutory process.
Rule 1.10 of the Corporations Rules provides: Unless the Corporations Act, the ASIC Act, or these Rules otherwise provide, the rules of this Court that provide for the extension or abridgment of a period of time fixed for the doing of any act or thing in relation to a proceeding apply to a proceeding to which these Rules apply.
Rule 1.39 of the Federal Court Rules 2011 (Cth) provides: The Court may extend or shorten a time fixed by these Rules or by order of the Court: (a) before or after the time expires; and (b) whether or not an application for extension is made before the time expires.
In considering whether an extension of time should be granted to move to set aside an examination summons, it is relevant to take into account the reasons for the delay, whether any prejudice will be suffered if the extension of time is granted and the merits of the application for which an extension of time is sought: Careers Australia Group at [27]. Senior Counsel for the applicants contended that as I was not determining whether to grant the extension of time in the present application, it was not necessary to assess the merits of the application to set aside the examination summonses, and that I need only be satisfied that there was an arguable case that they would be set aside. I did not understand Counsel for the Liquidator to resist that approach.
Before turning to address the relevant issues, it is convenient to refer to some matters of principle.
It is well established that if an examination summons has been sought, or is being conducted for one or more of a number of improper purposes and is therefore an abuse of process, the examination order made under Pt 5.9 of the Corporations Act 2001 (Cth) (Corporations Act) may be set aside: Ayers (in their capacities as liquidators of Queensland Nickel Pty Ltd (in liq)) [2017] HCA 5; (2017) 118 ACSR 380 at [35] (Kiefel, Keane, Nettle and Gordon JJ) and at [98] (Gageler J).
Often, whether an examination is being pursued for an improper purpose can be assessed by reference to the legitimate purposes for which they are to be pursued. In Newheadspace Pty Ltd (In Liq), Re (2020) 144 ACSR 224 at [98], Rees J referred to the oft-cited statement of the legitimate purposes for which the coercive power to summons a person for examination by Lander J (with whom Ryan and Crennan JJ agreed) in Re New Tel (in liq); Evans v Wainter Pty Ltd (2005) [2005] FCAFC 114; 145 FCR 176 at [252]: …
The following legitimate purposes emerge: 3.1 First, an examination is designed to serve the purpose of enabling an eligible applicant to gather information to assist the eligible applicant in the administration of the corporation. 3.2 Secondly, it assists the corporation's administrators to identify the corporation's assets, both tangible and intangible. It also allows the corporations liabilities to be identified. 3.3 Thirdly, the purpose is to protect the interests of the corporation's creditors. 3.4 Fourthly, it serves the purpose of enabling evidence and information to be obtained to support the bringing of proceedings against examinable officers and other persons in connection with the examinable affairs of the corporation. 3.5 Fifthly, it assists in the regulation of corporations by providing a public forum for the examination of examinable officers of corporations.
Lander J then identified the circumstances in which there would be improper purposes, as follows:
If an eligible applicant applies for an order for the examination of a person for a purpose unconnected with the purposes authorised by the legislation that will be an abuse of process and the order, if obtained, will be set aside.
The procedure may not be used to allow a party to obtain a forensic advantage and, if it is, any order obtained will be set aside.
The procedure may not be used as a dress rehearsal for the cross-examination of a person in a pending or subsequent action. However, it is not improper to seek an order of the court to summon a person for examination whilst litigation is pending against that person or entities connected with that person.
The question whether in any particular case the applicant has used the procedure abusively will depend upon the applicant's purpose in seeking the order and all of the surrounding circumstances. It will not be an abuse unless an offensive purpose is at least the predominant purpose.
It will be an offensive purpose if the application cannot be characterised as being for the benefit of the corporation, its contributories or creditors.
A creditor may, if first authorised by ASIC, apply to the court for an order to summon for examination a person for the purpose of obtaining information in relation to a debt owed to the creditor if such an examination would be in the interests of the corporation or its creditors as a whole.
A creditor may not use the procedure for the purpose of obtaining a forensic advantage which would not have been available to the creditor if the corporation had not gone into administration.
The principles are to be viewed in the context that ss 9 and 53 of the Corporations Act give a very wide definition of "examinable affairs", which includes the business, trading, transactions, dealings and property of the company: s 53(a). The pursuit of examinable affairs may also have the consequential effect of giving rise to a forensic advantage to one or more persons. In Re New Tel, Lander J at [220] referred to the apposite statement by Doyle CJ in Sandhurst Trustees Ltd v Harvey (2004) [2004] SASC 157; 88 SASR 519 at [51] that: The fact that a consequence of an examination order may be a forensic advantage to a particular class of creditors, or to a particular creditor, of the corporation, or to a particular person, does not of itself lead to the conclusion that the order was not made for a proper purpose. Nor does the fact that the order was made at the instance of that person or creditor. On the other hand, the power is not conferred with a view to its exercise solely to benefit an individual with a claim of some kind against the corporation in question, or with a claim arising out of its affairs. Nor, I consider, is it conferred to enable an applicant for an order to pursue an enquiry into a matter in relation to which the applicant has no legitimate interest.
To a similar effect, Cheeseman J stated in Careers Australia Group at [39] that it is clear from the decided cases that "the possibility that a forensic advantage will be gained does not mean that the making of an order will not advance a purpose intended to be secured by legislation": citing Hong Kong Bank of Australia Ltd v Murphy (1992) 28 NSWLR 512 at 519.
The purpose to be assessed is the predominant purpose of the Liquidator: Newheadspace at [110]. That purpose may be divined from the Liquidator's communications and dealings with others, and may be established by direct evidence or available inference.
In the present case, on the application of the above principles, I was not satisfied that the applicants established an arguable case that the examination summonses were being pursued for an improper purpose and, therefore, I was not satisfied that it was arguable that an extension of time would be granted to set aside the examination summonses. My reasons for coming to these conclusions were as follows.
First, the evidence established that Mr Cassaniti through an operating entity referred to as "Accolade Advisory" was the accountant for each of the three Companies.
Second, an examination of the Liquidator's Report for just one of the Companies, Richmond Lifts Pty Ltd, disclosed significant issues in relation to the operation and management of this company that pointed in the direction of likely contraventions of the Corporations Act by the current and former directors, as well as serious concerns in relation to the involvement of Accolade Advisory. The report recorded the following:
it appeared to the Liquidator that this company was party to a potential scheme to avoid the payment of tax;
it appeared that the company had been insolvent almost since it had been incorporated;
the company's current and former directors held directorships in a number of other companies, with one director having been a director of 120 other corporations over time, and the most recently appointed (and sole remaining) director, Mr Teddy Panella, held 67 current directorships;
these persons had been directors of many corporations that had in the past been deregistered or struck off;
the company had transferred significant sums of money to 21 persons who were formerly employed by the company, and these persons had received a pay increase of roughly 89% when they came to be employed by a new entity;
the books of the company recorded high cash use;
the company appeared to provide labour to another entity pursuant to an arrangement that was at undervalue and therefore uncommercial because the company only received revenue by way of the net wages and superannuation payable to its employees, leaving it with no ability to account for its taxation obligations;
the company held no assets;
the company's outstanding liabilities were owed to three secured creditors, each of whom held Personal Property Security Registrations;
there were no records of deposits from the secured creditors for the secured loans;
the Liquidator had written to each of the secured parties seeking information regarding their purported security interests and had not received a response;
information received by the Liquidator indicated that the purported security interests relate to a "global security deed" involving many the directors of related entities to which the company may have acted as the guarantor;
the balance sheet recognised amounts outstanding for GST and PAYG and the Commissioner of Taxation had lodged a proof of debt of approximately $1.45 million;
the Commissioner of Taxation was the largest unsecured creditor;
it appeared that not all the revenue for the company had been properly recorded;
the company appeared to receive significant deposits from related entities as the means for it to pay its expenses;
the Liquidator had sought information from Accolade Advisory including the books and records of the company and no response had been received, and the Liquidator intended to query the alleged services that had been provided that resulted in accounting fees of $150,000 being incurred in FY 2022 and $165,000 in FY 2023;
an agreement between the company and Accolade Advisory made provision for fixed fees and for those fees to be payable in advance;
neither the current or former director of the company had attended the Liquidator's office per notices issued to them to provide a history of the company's affairs;
the Liquidator considered that there was evidence consistent with insolvent trading valued at approximately $731,000. There was evidence consistent with the current and one former director owning real property which might provide a basis for recovery;
as the director and accountant for the company had failed to provide sufficient books and records, the Liquidator had been unable to conduct any comprehensive investigations into potential voidable transactions but available bank statements identified there to be potential voidable recovery claims against the directors;
the Liquidator had identified significant transactions with related entities that appeared to be preferential in nature towards related parties;
there was evidence of significant transactions with related entities that potentially appeared to be preferential including the labour hire arrangement with a related entity;
there was evidence of unreasonable director related transactions;
the Liquidator considered that there were various potential contraventions of the Corporations Act and listed these within the report;
the Liquidator stated that he intended to gather evidence, likely via public examination, to identify potential recovery action, if any, against parties directly involved in the scheme and all those parties that facilitated that scheme, should it be commercial to do so.
In my view, each of these matters warranted further examination, and were well within the purview of "examinable matters".
Third, in my view, the above matters established that there were sound grounds upon which it was reasonable for the Liquidator to consider that Mr Cassaniti and Mr Panella were critical protagonists in the conduct of the affairs of Richmond Lifts Pty Ltd and the other Companies.
Fourth, further, in my view, the evidence also established that there were sound grounds upon which it was reasonable for the Liquidator to consider that there were a number of interconnected entities and persons operating together in relation to the conduct of the affairs of Richmond Lifts Pty Ltd and the other Companies. From the matters that were submitted to me and the evidence to which my attention was drawn, Mr Cassaniti and Accolade Advisory were a common link between the Companies.
Fifth, I do not accept that there was an arguable case as to an improper purpose based on the various inferences that the applicants invited me to draw. These inference were said to arise from the combined effect of: (a) the breadth and extent of the orders for production; (b) the fact that the Commissioner of Taxation was funding the Liquidator; (c) the fact that the Commissioner was separately investigating Mr Cassaniti and other of the applicants in respect of their tax affairs; and (d) the absence of any plausible or other cogent evidence as to the prospect of genuine recovery.
In advancing these contentions, the applicants placed considerable reliance upon the decision of Austin J in Leisure Developments. In particular, reliance was placed upon his Honour's reasons at [45]-[46], where it was observed that: In the present case there is, in my view, an arguable case to support the applicants' challenge to the examination summonses and orders for production. This is not a case where the liquidator is engaging in or planning a proceeding for recovery of unfair preferences for distribution to the creditors of the company in liquidation. Here it is undoubtedly arguable that the notices to produce and the orders for production extend beyond what might be investigated with respect to the affairs of LDQ, and in their terms extend to documents relevant to the taxation position of Leda and other companies in the Leda group but not to the position of LDQ. It is arguable that production of such documents has no plausible link to recoveries for the ATO in its capacity as a creditor of LDQ. When one takes into account that the liquidator's investigations are being funded by the ATO, that the ATO claims an enormous amount of tax from Leda, and that one of the case officers of the ATO when the position paper was prepared is now the solicitor for the liquidator actively instructing counsel in the examination process and the present proceeding, the arguable case of abuse of process is strengthened. If an offensive purpose is found to be present, it is not to the point that the ATO might have acquired information relevant to Leda's alleged tax liability by using its own coercive powers. It is true that in this case the application has been brought well after the examination summonses were issued. No doubt the liquidator will seek to make something of that on the resumption of the hearing of the principal application. The delay does not prevent me from concluding, however, that there is an arguable case sufficient to justify an order granting access.
Aside from the fact that the facts here are different, I do not regard Austin J to have been establishing any a priori rule in respect of an improper purpose being divined where the ATO in its capacity as a creditor funds a liquidator, including where that involves the pursuit of examination summonses in circumstances where the persons to be examined are also subject to separate statutory investigations as to potential non-compliance with their taxation obligations. Rather, his Honour was emphasising that the particular facts in that case were ones where that was an arguable position. The facts here are different.
As to the orders for production, I accept the applicants' contention that the orders sought and served by the Liquidator were broad. However, it was unnecessary for me to decide whether these orders should be set aside as I was informed by Counsel for the Liquidator that he did not intend to press those orders.
The applicants' submitted that, notwithstanding that the orders for production were not being pressed, their wide-ranging categories were consistent with the fact that the Liquidator was pursuing an improper purpose for and on behalf of the Commissioner of Taxation in connection with its separate statutory investigations into the tax affairs of various individuals and entities. In my view, despite the breadth and extent of the orders for production, a close examination of all the matters that I have set out above establishes that the purpose of the orders for production was in connection with the examinable affairs of the Companies. As noted above, Mr Cassaniti was considered to be a link between the various companies, and, additionally, there was evidence of a series of transactions, including as to security being provided, as between related entities and individuals. In view of Mr Cassaniti and the current and former directors providing little, if any, assistance to the Liquidator I am not prepared to infer that there was an improper purpose, or even that there was an arguable case that there was such a purpose.
As to the fact that the Commissioner of Taxation was, and is, funding the Liquidator, I do not regard that on the facts here as giving rise to an improper inference, or an arguable case of one. The Commissioner was the largest unsecured creditor. The Liquidator had reported that there was the prospect of recovery after further investigation.
As to the fact that there are separate statutory investigations being pursued by the ATO in respect of the conduct of Mr Cassaniti and others, again, I do not regard that on the facts here as giving rise to an improper inference, or an arguable case of one. In light of the Liquidator's assessment as to the likelihood of a scheme being in operation to evade payment of GST and PAYG, I am unsurprised that there are separate investigations. However, here, that purpose was separate to the Liquidator's purpose in seeking to examine relevant persons for the purpose of examining the affairs of the Companies and determining the prospects of recovery. I am not satisfied that there is an arguable case as to the Liquidator having an improper purpose in this respect.
As to the contention that there was an absence of any plausible or other cogent evidence as to the prospect of genuine recovery, I do not agree. The evidence did not establish this to be the case. Rather, it was evident that the Liquidator considered that there could be prospects of recovery, but further examinations would need to be conducted as to the affairs of the Companies to determine the extent, if any, of recovery. It is the Liquidator's purpose that is of relevance. I am not satisfied that there is an arguable case as to the Liquidator having an improper purpose in this respect.
Senior Counsel for the applicants contended that it was the combination of each of the above matters that gave rise to an arguable case as to improper purpose. I disagree. For each of the reasons mentioned, I do not accept there is such an arguable case. Rather, I am comfortably satisfied that the Liquidator has a proper purpose in pursuing the examinations.
Senior Counsel for the applicants further submitted that the question as to the grant of the adjournment was not to be determined by reference to whether there was or was not an improper purpose, but whether there was an arguable case that there was such an improper purpose. However, as I have stated, I am satisfied that there was a proper purpose, which necessarily means that I am not satisfied that there was an arguable case of improper purpose.
Finally, as to the delay and prejudice, it is to be remembered that for the purpose of determining whether to grant an adjournment, the question before me is whether is an arguable case that the applicants would have a good explanation for delay and absence of prejudice in seeking an extension of time to move on seeking to set aside the examination summonses. As I do not consider that there is an arguable case that those summonses would be set aside, it is not necessary to express any view about these questions.
However, more critically, there is a question of delay in bringing the application to adjourn the hearing of the examination summonses, and the relative prejudice arising from that. The examination summonses were due to commence less than 24 hours before the application was notified to my chambers as the Commercial and Corporations List Duty Judge. The bringing of such an application less than 24 hours before the examinations are to occur signals delay that is productive of prejudice and, in my view, on the facts before me, not in the interests of the administration of justice. Not only have the Liquidator and his legal representatives made advance preparations for those examinations, but the resources of the Court have been set aside for the hearing of those examinations.
Whilst I appreciate that the end of law term is nearing and it is a busy time of year for all practitioners, I do not consider that the time allocated to the hearing of the examination summonses should be cast aside by reason of the late application for an adjournment.
In coming to this conclusion, I am not suggesting that there was not an explanation for the delay. I am also conscious that in refusing the adjournment, the practical effect will be to render otiose the application to set aside the examination summonses. That is a prejudice to the applicants. However, that prejudice has to be weighed against the fact that I do not consider they have an arguable case to set aside those summonses.
For the above reasons, I refused to grant the adjournment. I invited the parties' Counsel to confer to provide my chambers with short minutes of order reflecting that I had refused to grant the application for an adjournment, together with orders dealing with or disposing of the balance of the interlocutory process. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Shariff.

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