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DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 September 2011

• May 2011 - August 2011 85As to the third period, focus is placed on the response by Mr Gleeson on 31 May 2011 (p 217 CB) to Mr McDonald's complaint by letter dated 27 May 2011 (p 215 CB) as to Mr Gleeson's independence, insofar as it says (in answer to questions as to whether he had ever taken an appointment from the accountancy firm associated with Hyperion and as to any correspondence with Hyperion in relation to the matter) and expressed to be in response to comments regarding his independence that "other than being initially asked to provide a Consent to Act as Liquidator" he had not received "any instruction from Hyperion's representatives concerning the conduct of the external administration of the Company" and would not accept any such future instructions (without answering the question as to what other appointments he may have had with Hyperion or what correspondence he had entered into with Hyperion and, in particular, without disclosing that there was regular correspondence between he, Mr Hayter and Hyperion in relation to the investigations). 86Mr Aldridge concedes that it is not inappropriate for a liquidator to talk to creditors (such as Hyperion) and that it may be an appropriate source of information, but submits that it is the "way" he did so that compounds the problem of apprehended bias. 87The exchange between Mr McDonald and Mr Gleeson seems to have been prompted by a conversation alleged to have taken place between Mr Greenwood (not Mr Gleeson) and Mr McDonald during the course of the first round of examinations in May 2011, to which reference was made in the earlier proceedings before me (in which Mr McDonald says that Mr Greenwood made it clear that the liquidator's investigations and examinations were directed towards returning Hyperion to the position it was in prior to the sale and lease of the property). 88As noted above, Mr McDonald then wrote to Mr Gleeson on 27 May 2011 asking him to confirm whether Mr Gleeson had accepted appointments from Hyperion and whether the examinations which had taken place in May 2011 were directed towards assisting Hyperion in its unspecified claims. 89Mr Gleeson's letter of 31 May 2011 in response is criticised for not addressing the nature of his relationship with R&G Consulting (though the question put to him related to appointments from Hyperion representatives and for making the statement (described as disingenuous) that "Other than being initially asked to provide Consent to Act as Liquidator, I confirm that I have not received any instructions from Hyperion representatives concerning the conduct of the external administration of the Company and nor will I be accepting any such future instructions from the Hyperion representatives." 90Mr Aldridge places weight on the fact that Mr Gleeson did not disclose (in response to Mr McDonald's complaint) that he had initially advised Hyperion (although, as I noted in my earlier judgment, that must have been apparent to APH's representatives at the initial creditors' meeting when Mr Gleeson attended with and raised queries on behalf of Hyperion - all that would not have been known was the extent or content of the advice and, frankly, that does not seem to have gone beyond an identification of the kinds of claims or avenues for recovery that Hyperion might have and what would be necessary to establish them). He also submits that the correspondence reveals an attempt to put pressure on Accord for the benefit of Hyperion (a matter I addressed, by reference to the relevant correspondence, in my earlier judgment). 91Reliance is then placed on what was said to be a 'change of tack' in the letter of 6 July 2011 from the liquidator's solicitors (at p 250 CB), insofar as, there, reference is made to investigation as to potential matters in contrast with the 'dogmatic statements' in the correspondence not sent to APH to the effect of 'this is what we have to got prove". Mr Golledge, for his part, relies on that letter as setting out logically the basis on which the liquidator was deferring consideration of the allegations made against Hyperion of an unfair preference claim until after the insolvency issue had been explored (something for which the liquidator was previously criticised as showing partiality to Hyperion.) 92It is said by Mr Aldridge that it was not until 22 June 2011, on receipt and review of the documents answering the Notice to Produce of 17 June 2011 and the eve of the application before me to set aside the examination summonses, that APH realised the position and its solicitors then wrote to Mr Gleeson's solicitors to point out that the liquidator was in an untenable position on the basis of a perceived lack of independence. In the witness box, Mr Harkin was cross-examined as to the circumstances in which that view was formed and I will consider this in more detail when addressing the Anshun estoppel issue. 93APH's solicitors then wrote (at a point which is said to have been mid-way through the abuse of process hearing but is in fact the day after the first day of the hearing and three days before it resumed, thus not halfway from a strict timing viewpoint) to Gillis Delaney on 24 June 2011 inviting their client to resign. 94After a further exchange of correspondence, Mr Gleeson's solicitors wrote to APH's solicitors on 7 July 2011 (CB pp 249-253), in which they noted that R&G Consulting had provided referral work over the years and that he had accepted a small insolvency assignment from that firm in the 12 month period preceding his appointment (described by Mr Aldridge as "disclosures omitted from the Declarations of Independence of 8 December 2010 and 25 January 2011"). In this letter it is said that they "half heartedly" asserted that it was Messrs Hancock and Hird who had invited Mr Gleeson to accept the appointment (a statement said to be disingenuous "when regard is had to Mr Gleeson's instructions since 2 December 2010 and his efforts to secure the office prior to the meeting of 9 December 2010"). 95I consider the effect of this correspondence on the perception of a reasonable and fair-minded observer below.
• August 2011 96Finally, it is submitted that the offer to retire (on the terms set out in the letter of 22 August 2011) is a "belated acceptance" by Mr Gleeson that his position is untenable and that he must resign (or that resignation is an appropriate course of conduct) but that the imposition of terms on that offer reinforces the apprehension of bias. Mr Harkin, in the witness box, confirmed his belief that this letter was an acknowledgment of bias. 97I do not accept that this letter can or should be so construed as any kind of admission that it is incumbent on Mr Gleeson to resign or as to any lack of independence on his part. It is clearly written on a without admissions basis. It would be open to infer that the offer was made in order to save the company the continuing costs of the ongoing dispute as to the liquidator's in office but with a desire in the interests of creditors not to waste the investment of funds made in relation to the preparation for the examinations to date. 98Mr Aldridge submits that the making of the resignation offer on terms is an untenable position but it is by no means clear why that is so. What Mr Gleeson has said, in effect, as clarified during the course of the hearing, is that once the examinations on 6 September 2010 have been completed then if he forms the view that there is a cause of action open to be pursued against APH's directors, then he will retire and an incoming liquidator can make the decision to pursue that course or not with the benefit of whatever advice he or she receives and with the benefit of the information emerging from the examinations; but that if with the benefit of the examinations and the advice he forms the view that there is no cause of action that should be pursued, then all that will remain (and Mr Harkin appears to concede that this is the case) is for the formalities of the winding up to be completed and he considers it to be in the interests of the company for those to be completed without the added cost of an incoming liquidator. 99Mr Aldridge maintains that this is untenable because if the liquidator is tainted by bias then any step he now takes is tainted (and it is not to the point that another liquidator might take the same step or that it might be a reasonable step to take) - but it is not suggested how it would prejudice the company or his client for formal matters such as the lodgement of ASIC forms to be completed in those circumstances. In that regard, the propositions outlined by Mr Aldridge in submissions at the outset acknowledge that what must be considered is the stage of the winding up at which an application for removal is made and the general interests of the creditors. If all that relevantly remains (assuming a view that there is no cause of action is formed after the examinations are completed) is the completion and lodgement of ASIC forms, I cannot see how it could possibly be said that it is in the general interests of creditors to appoint another liquidator for that purpose. APH's insistence (through its legal representatives) on this point, highlights the level of suspicion (and apparent lack of objectivity on its part) that in my view has characterised the present (and previous) application. General matters 100Mr Aldridge seeks to draw significance from the fact that Mr Gleeson did not put on any evidence to explain his actions both before and after his appointment and seeks to draw a Jones v Dunkel (1959) 101 CLR 298 inference that such evidence as he could give would not assist Mr Gleeson. In that regard, Mr Golledge points to the fact that when the hearing of this application was listed (as a matter of urgency on 25 August 2011), it was expressly done by reference to Mr Gleeson's availability. It is submitted, however, that where the allegation of actual bias was expressly disavowed on that occasion, the need for Mr Gleeson to give evidence as to his motivations in effect fell away as that is irrelevant to the issues to be determined in relation to apprehended bias (and hence no adverse inference can be drawn from the fact that he did not give evidence on this application). 101A somewhat similar submission was made in the earlier proceedings as to the failure of the liquidator to put on evidence articulating his purpose for the examinations and I noted at [46] of my reasons the view that had been taken by White J, in Re Mendarma Pty Ltd (in liq) [2006] NSWSC 1306; (2006) 24 ACLC 1611, expressly disagreeing with a submission there made that improper purpose could be inferred from the fact that the liquidator had not responded to certain correspondence and had not sworn a further affidavit responding to matters raised with him, saying: .... In my view, there was no occasion for [the liquidator] to do so. The applicants cannot establish he had an improper purpose merely by making a wide range of allegations which were patently without substance, and then relying on his not responding to those allegations as a basis for inferring that he had an improper purpose. 102Relevantly, in Ebner , the High Court made it clear (in the passage cited earlier) that, where the question is as to a decision yet to be made there is no need to predict how the decision would in fact be approached, saying that : ,,, The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror. 103In those circumstances, no adverse inference can be drawn from the fact that Mr Gleeson did not give evidence on the applications before me. 104Mr Aldridge submits that it is significant that Mr McDonald, as APH's proxy at the relevant meeting, has given evidence that had be been aware of the nature and extent of the association between the Hyperion interests and Mr Gleeson, he would not have voted for the appointment of Mr Gleeson to the office of liquidator. (Of course, this evidence is given with the benefit of hindsight as to what the liquidator has done in the context of the liquidation - steps that have clearly not endeared himself to APH or its directors and officers.) 105This seems to me to be based on the assumption (not proven) that there was a substantial association in fact. That is what was asserted by Mr Harkin in his letter of 24 August 2011 - namely, that a significant portion of Mr Gleeson's work derived from R&G Consulting - however, as Mr Harkin ultimately conceded in the witness box, the only basis on which that assertion was made in the correspondence was the simple statement that R&G Consulting referred work to Mr Gleeson from time to time. That is hardly a basis for an assertion that a substantial portion of work was derived from that firm, yet Mr Harkin was unable to point to any other document on the basis of which that assertion (made as the foundation for an apprehension of bias claim that he concedes he would not lightly make) was made. (Indeed the material produced on the various subpoenas and notices to produce on the present application did not seem to reveal more than a couple of seemingly minor matters in which there was a referral from R&G Consulting was involved with Mr Gleeson - at least by reference to Exhibit D.) 106What it is that Mr Gleeson should have disclosed at the second creditors' meeting, according to Mr Aldridge's submissions was something to the effect that "I have been giving advice to the creditor and I propose to charge a fee for that advice". Yet APH must have been aware that Mr Gleeson attended the second creditors' meeting and did so in some capacity on behalf of Hyperion. 107Mr Aldridge asserts that, as unpalatable as the prospect of investigations of, and claims against, APH and its directors may be, this is not the reason for this application. He submits that APH accepts that the liquidators have a duty to investigate and inquire; and that in due course this may result in claims against it. (The acceptance of that proposition by APH has seemingly not extended to its overseas directors assisting in the course of those investigations.) Nevertheless, what Mr Aldridge focuses on is the "manner in which this has been engineered by Mr Gleeson and the Hyperion interests". It is submitted that the "manoeuvreing behind scenes between Messrs Gleeson, Hayter, Greenwood and Higgins prior to the appointment of Mr Gleeson as liquidator" makes Mr Gleeson's position as liquidator difficult to sustain. Having considered in some detail (now twice) the material on which Mr Aldridge relies for the proposition that there has been some form of 'covert' or sinister 'manouevring', I reject the proposition that a reasonable fair-minded observer would see what has transpired as indicative of bias on the part of the liquidator. 108Mr Aldridge submits that the documents produced by Mr Gleeson on 22 June 2011 (in response to APH's Notice to Produce of 17 June 2011) on the eve of the abuse of process application heard by me on 23 and 27 June 2011, show "a covert relationship between Mr Gleeson (the liquidator in waiting), Messrs Greenwood and Higgins (the principals of R&G and the governing mind of Hyperion) and Mr Hayter (Mr Gleeson's tool) which would be perceived by any reasonable observer as demonstrating a lack of impartiality and independence in Mr Gleeson, as an officer of the Court, in the discharge the office of liquidator of APL". (Mr Golledge, apart from noting that Mr Gleeson is not an officer of the Court as such in his present role, notes that as at December 2011 Mr Hayter was the solicitor who had been retained by the former liquidators. Further, it is a serious allegation to make against a solicitor who is the officer of the Court when that solicitor has given evidence by affidavit on both applications and not been required for cross-examination such that no such suggestion has been put to him.) 109I should also note that when the matter was last before me, reliance for the submission that there was an improper purpose was placed on the fact that steps had not been taken, it was said, to pursue claims against Hyperion for an unfair preference in the receipt of payment following a statutory demand. That now seems to have been abandoned. Similarly, the assertion made in Mr Harkin's July correspondence that any suggestion of a breach of fiduciary duty claim had only recently been raised by the liquidator is inconsistent with the earlier correspondence to which Mr Harkin was taken in the witness box. 110Mr Harkin gave his evidence in the witness box in general in a measured and considered way. I accept that he has considerable experience in the area of insolvency law and that he firmly believes that it is inappropriate for the liquidator to continue in office. He had a tendency to seek to argue his or his client's point of view on certain matters (such as when responding to a question as to the association between his firm and the nominated liquidator, when he was quick to refer back to the position with Mr Gleeson, and when he was at pains to point out that Mr Gleeson had not given evidence on the this occasion either when being asked about the evidence on the previous application) and seemingly sought 'to score points' in cross-examination on at least one occasion (when adding that Counsel for the liquidator had previously been retained on occasion by matters in which Mr Krejci was involved - an answer unresponsive to the question he had been asked). It might be thought that this betrayed a (perhaps understandable) desire to justify the position he had adopted in relation to the apprehension of bias (that being a matter that he seems to have been hopeful would be resolved by the liquidator's agreement to retire). 111I accept that Mr Harkin has approached the matter in what he considers to be a proper way. However, I am left with the impression that the position of APH has been strongly influenced by the conversation that apparently took place in May 2011 with Mr Greenwood and that, thereafter, considerable suspicion has attached to everything said or done by the liquidator. I cannot test the reasonable disinterested observer by reference to the APH position. 112Mr Golledge submits that, in a winding up with only 2 creditors, references to other cases where a liquidator's fraternisation with one creditor or a director has proven to be decisive are of little relevance to the present application. It is submitted that the putative lay observer would appreciate that, with only 2 creditors, any proper investigation of claims against either of them would necessarily place the liquidator, at least temporarily, apparently in the 'camp' of the other creditor but that no adverse inference would be drawn from that circumstance (particularly where the investigation has already been found not to be for an improper purpose). 113It is further submitted that where that other creditor was funding, in an entirely proper way, part of that investigation, the lay observer would find nothing improper or suspicious about contact between the liquidator and his lawyers with that other creditor provided it is connected, as the Court has already found to be the case, with the conduct of that investigation. Mr Harkin, himself, appeared to concede that communication of that kind would not be uncommon. 114In relation to Mr Harkin's evidence I accept that he has not lightly made the allegations of apprehended bias and (dogmatic as the assertions in some of his correspondence have been) they have in the main been in measured terms. Mr Harkin says that this is only the second time in 25 years that such an application has been made by him. 115Nevertheless, it is difficult not to form the impression that a view was taken by APH (even if not by its representatives) at the least from the time of the conversation between Mr McDonald and Mr Greenwood (whatever the actual terms of that conversation might turn out to have been, since Mr Greenwood's version has not been tested), evidenced by the correspondence both from Mr McDonald and Mr Patrick Kho and presumably reflected to some degree in the correspondence emanating from their legal representatives and the submissions put to the Court (both on the last occasion and this) that there was a conspiracy or scheme of some kind on foot, to which Mr Gleeson was a party, and that all communications and actions taken since then have been viewed with a jaundiced eye having regard to that view. Conclusion as to apprehended bias 116As Mr Golledge notes, the lay observer must be taken to be appraised of all of the facts relevant to the actions or conduct of the liquidator and the question of apprehended bias must be determined by reference to the connection between those matters and the relevant decision that might be affected by the perceived bias. 117He submits that those facts include the fact that APH has previously asserted that the liquidator is acting 'in the interests of Hyperion' and that both he and his solicitor have been overly deferential to Hyperion but that the Court has rejected those complaints and has found the liquidator has acted properly in securing the examination orders and proceeding with the examination hearings. Thus, Mr Golledge submits that APH faces the difficulty of establishing that a reasonable lay observer would reject the Court's previous finding that there was nothing improper in the conduct of the liquidator in the decision to proceed with the examinations nor the manner in which that was being done and would conclude, rather, that contrary to the Court's findings, the evidence gives rise to an apprehension of a real, and not merely theoretical, likelihood that the liquidator had failed and would continue to fail to act impartially in the winding up. In short, Mr Golledge submits that no reasonable lay observer would be concerned to second-guess the Court's earlier finding, which has not been the subject of appeal. 118In that regard, I note what I said in my earlier judgment when considering the import of the communications in which reference to pressure and leverage points was made. Having noted that, if the reference to leverage points in the 17 May 2011 email (written after the first round of examinations) were construed as a reference to leverage in negotiations to compromise a claim by Hyperion, then this would be an improper purpose, I said at [126]: It seems to me (as I indicated in the course of submissions) that this email is the high point of the case raised by APH of improper purpose. It requires enormous weight to be placed on the choice of language in that short expression for a conclusion to be drawn that the predominant purpose of the liquidator in later seeking the issue of the second set of examination summonses and orders was an improper purpose. The wording of the communications in general does not suggest a carefully considered choice of words in this regard. After considerable thought, I am unable to conclude that this email, read in the context of what had by then become increasingly contentious correspondence between the parties (and where it is clear that there is suspicion and distrust on both sides and references to 'hectoring emails' which suggest that emotions were running high even between the legal representatives), can bear such weight. Infelicitous as the language of the email seems to me to be, I do not consider that it warrants the inference that the liquidator is acting for the predominant and improper purpose of seeking to put pressure on APH to resolve a dispute with Hyperion or of seeking information to assist Hyperion in the conduct of a separate claim it may have against APP. 119I remain of that view. Further, I am of the view that a reasonable and fair-minded lay observer, when faced with the fact that APH's representative at the second creditors meeting on 9 December 2010 must be taken to have been aware that Mr Gleeson was assisting or advising Hyperion's representatives (presumably in a professional capacity) at least on that occasion in relation to the administration and hence that there was at least some association between the two and if aware that Declarations of Independence of the kind that both Mr Gleeson and Mr Krejci have signed ordinarily are in brief or summary terms, would not have formed the view as at the time of the appointment of Mr Gleeson as liquidator that he would be affected by bias. This may be tested by the fact that Mr McDonald was at least aware of the former and saw no difficulty at the time with Mr Gleeson's appointment as liquidator (notwithstanding that he must have been aware that Mr Gleeson had raised the issue of liquidators' examinations as directors as far back as the 9 December meeting since that was recorded in the minutes). 120Even though the issues being determined by me in July were as to actual improper purpose, a reasonable fair-minded and disinterested observer would surely not conclude that the liquidator was unlikely to be able to bring an impartial mind to decisions in relation to the liquidation when a judge had reviewed the relevant material and had come to the considered opinion that the conduct relied upon did not evidence an actual improper purpose in the investigations. 121What then of the correspondence since then? To my mind it does no more than confirm the position that emerged fairly clearly when the matter was last before me - that there is a great level of distrust on both sides in this matter. However, the degree of suspicion harboured by APH and its representatives is not the measure by which a disinterested observer's reaction to the events is to be tested. It is difficult not to conclude that whatever the liquidator were to do, a sinister motivation would be ascribed thereto by APH. That does not make such a view reasonable. 122It seems to me that the high point of the present apprehended bias claim is in the liquidator's response of 31 May 2011, which on one view might (I accept) be seen as presenting only part of the history of the association between Mr Gleeson and the individuals associated with both Hyperion and R&G Consulting and as perhaps glossing over the initial consultation with Hyperion on the basis that there was no formal appointment. That said, Mr Gleeson is not a lawyer and the letter seems to have been drafted not directly in response to particular questions but to issues. The fact that Mr Gleeson had had some previous role or association with Hyperion was already obvious from the fact that he attended the second creditors' meeting with Mr Greenwood. Further, the letter itself did not refer to R&G Consulting but to appointments by Hyperion representatives. 123I accept that if a reasonable and fair-minded lay observer were to form the view that a less than a complete response was given on behalf of the liquidator in this correspondence then that could affect the reliance on which such an observer might feel he or she could place on the liquidator's impartiality on other matters, and so I do not suggest that there could not be room for a finding of apprehended bias at that point. However, it is by no means clear that the letter was misleading in that regard. 124What was said by the solicitors for the liquidator in their subsequent 6 July 2011 letter was that Mr Gleeson had "received a small number of referrals over the years from the accounting firm" (ie R&G Consulting). It is by no means clear that what Mr McDonald was requesting back in May 2011 extended to such appointments. Reference was made in the 6 July letter to one small company insolvency matter referred to Mr Gleeson by a senior employee of that accounting practice throughout the previous 12 months. 125In any event, even if it could be said that a reasonable and fair-minded observer (knowing that Mr Gleeson had attended the second creditors' meeting with Mr Greenwood and had spoken at that meeting apparently in relation to Hyperion's interests) would form the view that the letter of 31 May 2011 was a less than complete response to an issue on which Mr Gleeson purported to offer a response (as it seems to me there is room for doubt), what in my view removes any reasonable apprehension of bias at the present time is the offer made by Mr Gleeson to retire after the conclusion of the examinations on 6 September and to leave the ultimate decision as to whether any claim should be pursued against APH to an incoming liquidator. I do not accept the proposition that he would reasonably be seen as so tainted (by the response given in the 31 May letter) as to be incapable, from the point of view of the proper administration of justice, in giving instructions to Mr Hayter in relation to the conduct of the examinations themselves. Indeed, I think it safe to assume that the bulk of the preparation for those examinations would be already done (although I was informed that Mr Hayter was proposing to work over the coming weekend on that matter - hence the need for the urgent delivery of my judgment on the application before me). It is not Mr Gleeson personally who will be conducting the examinations and, however biased APH may think he is, the result of the offer is that one way or the other he will shortly be retiring as liquidator. 126I have concluded that there is not a reasonable apprehension of bias. Insofar as Mr Aldridge submits that the test is a light one, I do not accept that findings of that kind can be lightly made. However, even if I had found that there was a reasonable apprehension of bias, in the exercise of my discretion I would not have ordered the removal of Mr Gleeson as liquidator until after completion of the 6 September examinations and a decision was made as to whether there was any claim that might properly be pursued for the benefit of the company. (Even if a decision of Mr Gleeson to that effect might be said to be tainted by bias, it would lead to his retirement as liquidator in accordance with his offer so little seems to be lost as a result.). This is because I do not believe it is in the interests of the company not to proceed with the examinations for which preparation has already been undertaken and which I have already determined have been sought to be conducted for a proper purpose. 127Further, notwithstanding Mr Aldridge's protestations, I am concerned that a reasonable inference to draw from the timing of the present application, the week delay in service of the originating process with no application for expedition, the request initially made for vacation or adjournment of the examinations in light of this application and the refusal to consider what seems to me to be a reasonable suggestion to resolve the issue (albeit one made not until after the proceedings were instituted) is that APH and some or more of its directors are seeking to thwart the examination process. I make no formal finding to that effect as it is not necessary in light of the finding I have made. However, as a matter of discretion had I found otherwise on the apprehended bias case, I would have considered that the removal of the liquidator should be deferred until after the examinations. Further, with no disrespect to Mr Krejci, in light of the contentious conduct of the liquidation to date and the diametrically opposed positions and views of the two creditors, I would have required that any incoming liquidator be one with no connection with either of the creditors (and no or as little association as possible with the firms of solicitors on both sides) so as to minimise the scope for ongoing disputes of this kind. 128It is noted that, in the exercise of the discretion to remove a liquidator, reference must be had to the stage at which the liquidation has reached and the effect that his or her removal may have both on the accumulated knowledge of the company in liquidation and matters relating to its financial affairs and its failure and on the investment in the costs of the liquidation represented by the work done to date. 129There is also authority to support the proposition that the Court should be mindful of the possibility that (whether or not this be the purpose of the application) the removal of the liquidator will avoid or delay the investigation of any potential claim which might be available to the liquidator or the company. As I noted in my earlier judgment and above, it has been said that the possibility of recoveries for insolvent trading or otherwise in a winding up should not be lightly overlooked ( Young (as representative for the Australian partnership known as Accenture) v Sherman [2002] NSWCA 281; (2002) 170 FLR 86 at [91]). (ii) Anshun estoppel/abuse of process 130Strictly speaking, in light of the above finding it is not necessary to consider this issue, but for completeness I do so. 131The principle articulated by Sir James Wigram VC in Henderson v Henderson (1843) 3 Hare 100 at [115] was as follows: [W]here a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. 132In Port of Melbourne Authority v Anshun Pty Ltd at [602] - [603] Gibbs CJ, Mason and Aickin JJ said: ... there will be no estoppel unless it appears that the matter relied upon ... was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking it would be unreasonable not plead a [matter] if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect we need to recall that there are a variety of circumstances, some referred to in the earlier cases, why any party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings eg expense, importance of a particular issue, motives extraneous to the actual litigation, to mention but a few. 133In Anshun (at [603]) it was further said that: It has generally been accepted that a party will be estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment ... The likelihood that the omission to plead a defence will contribute to the existence of conflicting judgments is obviously an important factor to be taken into account in deciding whether the omission to plead can found an estoppel against the assertion of the same matter as the foundation for a cause of action in a second proceeding. By "conflicting" judgments, we include judgments which are contradictory, though they may not be pronounced on the same cause of action. It is enough that they appear to declare rights which are inconsistent in respect of the same transaction. 134Allsop P i n Champerslife Pty Ltd v Manojlovski & anor [2010] NSWCA 33; (2010) 75 NSWLRR 245 at [4] emphasised that the mere fact that the matter could have been raised does not mean it should have been raised (for the operation of the Anshun principle), repeating the statement in Anshun itself that the matter " has to be so relevant as to make it unreasonable not to raise it " (my emphasis). Substantial similarity in the factual basis for the claims is said to be a necessary but not sufficient condition for application of the principle ( Gibbs v Kinna [1999] 2 VR 19 per Kenny JA). 135In Charben Haulage Pty Ltd (in liq) V Beilby (t/as Costello) [2010] NSWSC 510, it was noted that there are a variety of circumstances in which a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings (such as expense, the importance of the particular issues, and motives extraneous to the actual litigation). The test remains one of reasonableness having regard to the circumstances. 136In Champerslife at [107] - [109], Handley JA, having considered the test for issue estoppel, went on to consider the broadening of the enquiry to be undertaken where the question was one of Anshun estoppel and made it clear that the enquiry in such a case is not restricted to the pleadings and reasons for judgment (such that reference to submissions would be permissible). His Honour said: The principle in Henderson v Henderson (1843) 3 Hare 100 [67 ER 313] at p 115 [p 319] widens the scope of both forms of res judicata estoppel without introducing subjective factors. The test is whether the new point "properly belonged to the subject of litigation" in the earlier proceedings. The relevant evidence is restricted to the pleadings in both proceedings and the reasons for judgment in the earlier. Where the extended form of res judicata in Anshun or Johnson i s in issue the enquiry is extended to include the reasonableness of the litigant's conduct in the earlier proceedings, or the existence of an abuse of process in the later. 137Where a party seeks to re-agitate issues that were fundamental matters in earlier proceedings then such an estoppel will lie (see Blair v Curran (1939) 62 CLR 464 and Murphy & Ors v Abi-Saab & Ors (1995) 37 NSWLR 280 per Gleeson CJ at [287] -[288]). To do so would ordinarily be said to be against the administration of justice and would risk inconsistent findings from the same Court in respect of the same issues. Thus, in the absence of any or any proper explanation as to the fact that the issues were not raised in the earlier proceedings, a close connection between the facts in separate sets of proceedings may make it unreasonable not to have agitated the issue in the earlier proceedings (see Ling v Commonwealth of Australia (1996) 68 FCR 180 at [184]; Zavodnyik & Ors v Alex Constructions Pty Ltd [2005] NSWCA 438; (2005) 67 NSWLR 457 at [39]-[40]) and hence raise the estoppel. 138In the proceedings before me, the improper purpose suggested by Mr Aldridge for the issue of the examination summonses and orders for production was said to be that the procedure has been invoked in order to provide Hyperion with an advantage - either by placing pressure on APH to reach a commercial settlement with Hyperion (the latter wishing to be made good by APH for its losses of entering into the lease transaction) or to obtain information to assist in a claim by Hyperion against APP in relation to entry into the sale transaction or against the directors of APL (or APH) in relation to insolvent trading and voidable transactions (as set out in [49] of my reasons). 139This is clear from the outline of submissions served on behalf of APH on that occasion (a copy of which was tendered in evidence on this application) which included the following:

• Period from appointment as liquidator to May 2011 71As to the second period of time, during which Mr Aldridge has focused attention, much weight is placed on the fact that Mr Gleeson's Declaration of Independence does not disclose the advice which Mr Gleeson provided to the Hyperion interests since at least 2 December 2010; his remuneration for that advice since at least 9 December 2010 (though there is no evidence that he did in fact receive any, simply a letter suggesting that he would charge for his time from then, which may well have been overtaken by events); and the "referral relationship" between Mr Gleeson and R&G Consulting. 72What is said by Mr Aldridge is that when Mr Gleeson provided his Declaration of Independence in the context of his appointment as liquidator he should have gone further than he did and should have added words to the effect "I have been advising one of the creditors of the company and I do not think that this prevents me from taking the appointment as liquidator". In this regard, Mr Golledge points to the declaration of independence provided by Mr Krejci in the context of his now proposed appointment as nominated by APH (which, it must be said, goes into little detail as to what Mr Harkin in the witness box confirmed was a substantial history of dealings by Mr Krejci at least with the solicitors acting for the Accord group in these proceedings). 73Mr Aldridge points not only to the fact that there was no disclosure of an advisory relationship with Hyperion in the context of the APL administration or of the referral relationship with what are described as 'allied interests' (namely the accounting firm in which the principals of Hyperion were partners) but also to the content of the information and advice provided by Mr Gleeson to the Hyperion interests during this period. 74In this regard, it is submitted that "Mr Gleeson positioned and directed the investigations and examinations so as to progress the S.588V insolvent trading claim against APH" and "suppressed the flow of information about the liquidation to APH, whilst providing full information and advice to Hyperion". Again, Mr Aldridge calls in aid in this context the comments made by me in my earlier judgment (at [124], which I have extracted above, and at [125]: