Australian Executor Trustees Ltd v Provident Capital Ltd, in the matter of Provident Capital Ltd

In paragraph 22, second sentence, the words "the Prospective Applicants" have been replaced with "QB4 Capital's".

In paragraph 22 the phrase "above all other unitholders" have been replaced with "above that of all unitholders".

In paragraph 26, last sentence the word "other" has been deleted.

IN THE MATTER OF AN APPLICATION BY QB4 CAPITAL PTY LTD

1. The urgent application before the start of proceeding for the appointment of special purpose receivers be dismissed.
2. The prospective applicants pay the costs of Guardian Securities Limited and Mr Steven Maarbani on an indemnity basis.
3. The prospective applicants pay the costs of the receivers of Fundus Management Pty Ltd.
4. The receivers' costs in appearing on the application are costs properly incurred in the receivership.

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

1. This application came before me today as the Commercial and Corporations Duty Judge. I made orders dismissing the application at around 4pm. These are my reasons for doing so, a copy of which will be provided to the parties today.
2. The Prospective Applicants, QB4 Capital Pty Ltd (First Prospective Applicant), Alexander Migunov (Second Prospective Applicant), and Elena Migunova (Third Prospective Applicant) bring an urgent application before start of a proceeding for orders appointing Mr Bill Karageozis and Mr Antony Resnick of Macleod Partners as joint and several special purpose receivers to Fundus Management Pty Ltd ACN 619 573 456 (receivers and managers appointed). The Prospective Applicants rely on the power to appoint receivers under ss 23 and 57(1) of the Federal Court of Australia Act 1976 (Cth) (FCA Act). The application is brought under r 7.01(1)(d) of the Federal Court Rules 2011 (Cth) (the Rules).
3. The Prospective Applicants' purpose in seeking the appointment is to enable the special purpose receivers to investigate, preserve, and if appropriate commence or assign causes of action held by Fundus against Certane CT Pty Ltd and Guardian Securities Limited for breach of custodial duties arising from an unauthorised payment of $2.5 million made on 6 February 2020.
4. That stated purpose in so far as it relates to "investigate ... and if appropriate commence or assign" is to be understood in the context of the Prospective Applicants' apprehension that the relevant limitation period which applies to the prospective claims they wish to investigate and prosecute expires tomorrow, that is 6 February 2026. If relief is granted, the proposed proceedings would have to be commenced imminently before becoming statute barred. In this light the suggestion that there will be a period of investigation and consideration before commencing the proposed proceeding is somewhat euphemistic. The Prospective Applicants have provided a draft originating application in respect of their proposed claims against Certane and Guardian. In my determination of whether to grant the relief sought, I have focused on the way in which the claim has been framed in this draft originating application. The Prospective Applicants have not placed into evidence any legal opinion as to the prospects of the claim, as framed with or without modification.
5. Mr Maarbani is the sole director of Fundus and also of Guardian. The Prospective Applicants submit that Mr Maarbani has no incentive to cause Fundus to bring the claims it has identified.
6. The Prospective Applicants initiated a course of correspondence in mid-January 2026 which culminated in Mr Sean Wengel and Mr Michael Brereton of William Buck (the Existing Receivers) informing the Prospective Applicants that they did not intend to pursue the claims that had been identified by the Prospective Applicants. This was because they had not been provided with cogent evidence or analysis that any cause of action may be to the benefit of the unitholders as a whole, especially in circumstances where the $2.5 million had already been recovered, with interest, by the Existing Receivers, as well as the vast scope of the litigation that had already concluded. There was a brief negotiation between the Prospective Applicants and the Existing Receivers in relation to Fundus assigning the chose in action but that did not culminate in an agreement.
7. Although an application under r 7.01 may be brought without notice, today's application was brought on notice, albeit very short notice, which was given to the Existing Receivers and to Guardian and its director Mr Steve Maarbani (who shared representation). Notice was not given to Certane. Given the history of prolonged litigation between those involved in this application, it was appropriate that notice was given and the Court is grateful for the assistance received from those who appeared on this application.
8. Mr Douglas appeared for the Prospective Applicants. The Existing Receivers were represented by Mr Hedge, who helpfully assisted the Court in providing additional information and context. The Existing Receivers adopted a neutral stance on the application on the basis that it was a matter for the Court. Mr Rogers of Counsel appeared for Guardian and Mr Maarbani, who together opposed the application and effectively acted as a contradictor.
9. The Prospective Applicants rely on r 7.01 which relevantly provides that if a matter is urgent a person who intends to start a proceeding may apply to the Court without notice for an order appointing a receiver with the power of a receiver and manager.
10. I am satisfied that this application is urgent. I am also satisfied that this application has been brought in accordance with the procedural requirements imposed under r 7.01(2). I acknowledge that the Prospective Applicants have proffered to the Court an undertaking to commence proceedings as required by r 7.01(3). The issue to be determined is whether it is a proper exercise of discretion to grant the relief sought.
11. After careful consideration of the submissions made and after reviewing those parts of the materials to which I was taken in the limited time available, I concluded that this application should be dismissed. I made orders accordingly.
12. The power to appoint a receiver is now statutory under s 23 of the FCA Act but it is in the nature of an equitable remedy: The University of Western Australia v Gray (No 6) [2006] FCA 1825 at [71] (French J). Section 23 gives the Court a very broad power to make any orders which are efficient and just in the administration of justice: Ilumba Pty Ltd v Malouf [2019] FCA 2095 at [15] (Derrington J). See also s 57 of the FCA Act.
13. The Prospective Applicants submit that the appointment of a special purpose receiver is necessary because Fundus is effectively paralysed by internal dissension or otherwise unable to act, relying on Gray (No 6) and Australian Executor Trustees Ltd v Provident Capital Ltd, in the matter of Provident Capital Ltd (receivers and managers appointed) (in liq) [2013] FCA 1461 (Rares J). The Prospective Applicants claim that the circumstances of this matter fall within Gray (No 6) and Australian Executor Trustees.
14. The Prospective Applicants have demonstrated that Mr Maarbani would appear to have no incentive to bring the claims they identify. The position with the Existing Receivers is however different. They have considered the claims and decided that the claims are not worth pursuing. They have cogently explained in their correspondence why they take that view. Central to the Existing Receivers' position is that the relevant funds transfer that informs the proposed claim has been repaid with interest. The Existing Receivers adopt a neutral stance on this application in circumstances where the Prospective Applicants seek the relief in the context of a proposal that they will fund the special purpose receivers if they are appointed.
15. This application threatens to be a new front in the long running and complex administration by the Existing Receivers of a registered managed investment scheme under Ch 5C of the Corporations Act 2001 (Cth) known as The Guardian Investment Fund (TGIF). TGIF is divided into several different unit classes. The one which is relevant to this application is the Premium Income Fund (PIF). The responsible entity of TGIF is Guardian. QB4 Capital is the former investment manager of TGIF. The administration of TGIF has been the subject of procedurally and factually complex litigation in this Court: QB4 Capital Pty Limited v Guardian Securities Limited [2022] FCA 262; 159 ACSR 289 (Lee J); QB4 Capital Pty Limited v Guardian Securities Limited [2023] FCAFC 72; 411 ALR 496 (Moshinsky, Stewart and Jackman JJ). The Prospective Applicants were the applicants in those proceedings. The Full Court dismissed the appeal from Lee J's decision.
16. The draft originating application which the Prospective Applicants have placed before the Court appears on its face, and by reference to those of the relevant documents I was taken to in argument, to have weak prospects. The bedrock which underpins the proposed claim is an allegation of the making of a disputed payment alleged to be unauthorised. The allegation is framed as follows:

The Unauthorised Payment

16. On or about 6 February 2020, the First Respondent made the Unauthorised Payment of $2,500,000 from the PIF operations account to Gawthern Drive Pimpama Development Pty Ltd.

17. The instruction for the Unauthorised Payment was given by Steven Maarbani, a director of the Second Respondent. The instruction did not come from the Investment Manager (QB4 Capital) and did not constitute a "Proper Instruction" within the meaning of clause 23.1 of the Custodian Agreement.

18. Steven Maarbani was appointed sole director of Fundus Management on 4 February 2020, two days before the Unauthorised Payment. He had a personal interest in the Pimpama development project to which the funds were directed.

1. The basis on which the payment was said to be unauthorised was put by reference to cl 23.1 of the Custodian Agreement. The briefest review of that clause and the defined terms used within it does not support the Prospective Applicants' claims. The Prospective Applicants' Counsel was unable to articulate a reasoned basis for the assumed predicate that the instruction had to be approved or at least known to QB4 Capital. I was not taken to any textual support for that proposition in the Custodian Agreement. The Prospective Applicants did not take me to the Product Disclosure Statement or any other document to support their contention.
2. The disputed payment of $2.5 million was made almost six years ago to the day. The Prospective Applicants have been on notice of that payment from very shortly after it was made. The facts and circumstances relating to that payment were included in an early iteration of the pleading in the proceedings before Justice Lee. That part of the claim had been abandoned by the time the proceeding came to hearing. The full amount of the disputed payment was recovered by Fundus together with interest in February 2021. The circumstances in which that recovery was made, including as to whether it was part of a settlement and discharge, were not addressed in the argument. The proposed claim is based on Fundus pursuing consequential loss that the Prospective Applicants' submit was occasioned by the making of the disputed payment, including alleged loss that on any view is loss of third parties and not Fundus. The claim is conceptually flawed in this regard and that was conceded during argument by the Prospective Applicants.
3. In so far as the alleged losses relate to Fundus (and not third parties) the Existing Receivers have provided transparent and cogent reasons for why they do not regard it as being economic for Fundus to pursue a claim of the nature alleged. In addition, the Existing Receivers and Guardian and Mr Maarbani were persuasive in submitting that to accede to this application is likely to divert and delay the Existing Receivers in making distributions. The administration of the trust, and relevantly the PIF, is well progressed given the complexities that the Existing Receivers have had to navigate. The winding up of the PIF appears to be close to, if not in, the final phase. For this reason, it would not be efficient or in the interests of the administration of justice to facilitate the Prospective Applicants' desire to ventilate this issue after the lengthy and unexplained delay on their part.
4. The Prospective Applicants in their draft originating application put a figure of $15 million on the proposed claim. That figure is not particularised and it is conceptually misconceived. It seeks to claim in the company's name, consequential losses alleged to have been suffered by third parties, namely QB4 Capital and so-called "Unitholder" capital losses. QB4 Capital has not taken steps itself to pursue what it acknowledges are its "direct claims" but instead seeks to use the company as a stalking horse to do so on the basis that it funds the special purpose receivers to do so. The Prospective Applicants explain why this approach is necessary by submitting that QB4 Capital's position is "complicated" by a Settlement Deed dated 1 October 2020, under which they acknowledge that there is an argument that QB4 Capital may have released Certane.
5. That raises an issue about whether it would be a proper exercise of discretion in the complex setting of this matter to facilitate a potential attempt to circumvent a settlement six years after the event. Moreover, the Prospective Applicants are unable to explain on what basis Fundus would itself be able to recover damages for loss alleged to have been suffered by QB4 Capital at all let alone in the face of a potential release. The public interest in the finality of litigation and settlements looms large in the present context.
6. The negotiations between the Existing Receivers and the Prospective Applicants and the proposal for the relevant chose to be assigned to QB4 Capital, or prosecuted in Fundus' name under the control of QB4 Capital, are informative. The proposed funding is predicated on a waterfall distribution of any recovery made in respect of the proposed claims which promotes QB4 Capital's priority for its alleged direct loss above that of all unitholders.
7. There is no evidence as to other unitholders being consulted in relation to the proposed fresh litigation. It was common ground before me that there are 16 unitholders in the PIF. Mr Migunov and Ms Migunova are only two of the unitholders.
8. That is significant. It must be understood in the context of the proceedings before Justice Lee and the appeal to the Full Court. Justice Lee observed that in framing the relief granted in the proceedings before him that he was concerned to ensure that the Existing Receivers realise the assets of the PIF and distribute them rateably to the unitholders of the PIF, upon completion of which the Existing Receivers were to report to the Court and the parties. The appeal from Justice Lee was dismissed on 19 May 2023. The Existing Receivers are now as I have said getting close to being in a position to make a distribution. It appears that there may be a further application before that can occur but Mr Hedge informs me that such application will be brought in the next few weeks. It is not necessary for me to address the subject matter of that application in these reasons. By contrast, the proposed litigation that the Prospective Applicants wish to cause Fundus to pursue will potentially delay the finalisation of the PIF for a prolonged period.
9. The Prospective Applicants have been on notice about the factual matters the subject of this application since at least 2020. Counsel for the Prospective Respondents took me through an amended statement of claim filed 8 September 2020 by the Prospective Applicants in NSD 415/2020 and NSD470/2020. That amended statement of claim traversed the transfer of the $2.5 million the subject of this application and which was addressed by the Full Court at [88] of its reasons (albeit briefly as that part of the pleading had been dropped by the time of hearing before Justice Lee). The unexplained delay from the Prospective Applicants in bringing a claim that they have been on notice of for six years weighs heavily against the exercise of discretion to appoint receivers for the ultimate purpose of investigating and prosecuting a claim for loss that was not pursued in the litigation between the parties, having been raised and abandoned in circumstances where the whole of the impugned payment with interest has been recovered and what is now contemplated is a claim for consequential loss that is not particularised and which is in part at least misconceived. The Prospective Applicants have not demonstrated how it would be efficient and in the interests of the administration of justice to appoint special purpose receivers for the purpose of reopening matters abandoned years ago which appear to have weak prospects and in circumstances where no explanation has been given for the delay in bringing this application.
10. In short, I am not satisfied that the Prospective Applicants have demonstrated that the claims they wish to bring in the company's name have sufficient prospects of success to justify further delaying the distribution of the PIF. I am not satisfied that the proposed proceeding may be to the benefit of the unitholders as a whole, as opposed to being to the potential advantage of QB4 Capital at the expense of the unitholders by reason of the likely delay in distribution.
11. I ordered the Prospective Applicants to pay the costs of Guardian and Mr Maarbani on an indemnity basis. The reason why I ordered indemnity costs is because of the urgent nature of the application without sufficient explanation as to why the proceedings had not been brought during the preceding six years, as well as the weakness of the prospective claim.
12. I also ordered the Prospective Applicants to pay the costs of the Existing Receivers in appearing on the application as costs properly incurred in the receivership.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cheeseman.