BP Australia Ltd v Brown

Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher [2015] HCA 10; (2015) 254 CLR 489

Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher [2014] NSWCA 148; (2014) 87 NSWLR 728

In the matter of Cohalan & Mitchell Roofing [2020] VSC 222

McCann v Mawson Restructures and Workouts Pty Ltd [2016] FCA 1152

McGrath v National Indemnity Company [2004] NSWSC 391; 182 FLR 309

McGrath, Re HIH Insurance Ltd [2004] NSWSC 165

New Cap Reinsurance Corp v Reaseguros Alianza SA [2004] NSWSC 787; (2004) 186 FLR 175

Parker, in the matter of Worldwide Speciality Property Services Pty Limited (in liq) v Worldwide Speciality Property Services Pty Limited (in liq) [2017] FCA 687

Re Clarecastle [2011] NSWSC 857; (2011) 85 ACSR 260

Re Green [2002] NSWSC 135; (2002) 41 ACSR 69

Re Octaviar Ltd (recs and mgrs appted) (in liq) [2012] NSWSC 1460; (2012) 271 FLR 413

Walker v CBA Corporate Services (NSW) Pty Ltd [2012] FCA 328; (2012) 88 ACSR 153

IN THE MATTER OF NR COMPLEX PTY LTD (IN LIQUIDATION) (RECEIVER AND MANAGER APPOINTED)

DAVID IAN MANSFIELD IN HIS CAPACITY AS LIQUIDATOR OF NR COMPLEX PTY LTD (IN LIQUIDATION) (RECEIVER AND MANAGER APPOINTED) ACN 149 657 910 & THE COMPANIES IDENTIFIED IN SCHEDULE 1

DAVID IAN MANSFIELD & ROBERT WOODS IN THEIR CAPACITY AS JOINT AND SEVERAL LIQUIDATORS OF GATEWAY PARRAMATTA ONE PTY LTD (IN LIQUIDATION) ACN 607 653 365 & THE COMPANIES IDENTIFIED IN SCHEDULE 2

1. Subject to Order 2 below, pursuant to ss 37AF(1)(b), 37AG(1)(a) and 37AJ of the Federal Court of Australia Act 1976 (Cth), on the ground that it is necessary to prevent prejudice to the proper administration of justice, the following documents (Documents) be marked "Confidential" on the Court file and not be published, disclosed or accessed by any person, expect pursuant to an order of the Court, until such time as any litigation (including any appeal) arising out of the winding up and affairs of the companies specified in Schedules 1 and 2 of these Orders (the Companies) is concluded, or, if no such litigation is commenced, until the conclusion of the winding up of the Companies:

(a) paragraphs 6 and 11 to 28 of the Confidential Affidavit of David Ian Mansfield sworn 12 September 2025 (the Confidential Affidavit); and

(b) pages 1 - 256 and 280 - 293 of Exhibit DM-2 to the Confidential Affidavit.

1. Order 1 above does not prevent the plaintiffs, the plaintiffs' legal representatives or the plaintiffs' servants, agents or employees, from disclosing, publishing or accessing the Documents and the information contained therein.
2. Pursuant to section 588FF(3) of the Corporations Act 2001 (Cth) (the Corporations Act), the time for the making of any application in respect of, and for the benefit of, the Companies under s 588FF(1) of the Corporations Act be extended to 12 March 2027.
3. The costs of and incidental to this application be costs in the liquidations of the Companies.

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

1. NR Complex Pty Ltd (in liquidation) (receiver and manager appointed) ACN 149 657 910.
2. Merfad Capital Pty Ltd (in liquidation) (receiver and manager appointed) ACN 153 628 472.
3. Clyde 88 Pty Ltd (in liquidation) ACN 166 128 150.
4. James 88 Pty Ltd (in liquidation) ACN 601 926 596.
5. SFF Projects Pty Ltd (in liquidation) ACN 604 252 691.
6. Tallahon No. 1 Pty Ltd (in liquidation) ACN 167 594 041.

1. Gateway Parramatta One Pty Ltd (in liquidation) ACN 607 653 565.
2. Gateway Parramatta One Commercial Pty Ltd (in liquidation) ACN 607 735 660.
3. Gateway Parramatta Two Pty Ltd (in liquidation) ACN 607 653 574.
4. Gateway Parramatta Two Commercial Pty Ltd (in liquidation) ACN 607 735 759.

1. By Originating Process filed on 12 September 2025, Messrs David Mansfield and Robert Woods (Liquidators) apply, inter alia, for an extension of time until 12 March 2027 for the making of any application under s 588FF(1) of the Corporations Act 2001 (Cth) (the Act) in respect of the companies listed in the Annexure to these reasons (Companies).
2. The Liquidators rely on:

(a) an affidavit of Mr Mansfield sworn on 12 September 2025 (Mansfield 1) and Exhibit DM-1;

(b) a confidential affidavit of Mr Mansfield sworn on 12 September 2025 (Mansfield 2) and confidential Exhibit DM-2; and

(c) a third affidavit of Mr Mansfield sworn on 27 October 2025 (Mansfield 3).

1. The Companies form part of the "Dyldam Group" of companies: Mansfield 1 at [30(a)]. The Dyldam Group constructed various residential apartment buildings across New South Wales and, since 2012, a number of entities in the Group have been placed into external administration with significant debts owed to the ATO (among others): Mansfield 1 at [30(a)]. The Liquidators (separately and together) are also the liquidators of nine other companies in the wider Dyldam Group that are not the subject of this application: Mansfield 1 at [28]. There are approximately three hundred companies within the wider Dyldam Group: Mansfield 1 at [30(c)]. The group was associated with the Fayad and Khattar families.
2. The Companies were wound up in insolvency on various dates in 2022 and 2023. The Liquidators have carried out investigations into the affairs of the Companies since that time but, as is explained below, the Liquidators' conduct of the liquidations has been impeded by various factors, including issues with the availability of the Companies' books and records; a lack of co-operation or assistance from the Companies' directors and external advisers; a lack of funding; significant complexity arising from the position of the Companies within the wider Dyldam Group and intercompany dealings between them; and the placement of numerous Dyldam Group entities into external administration without common insolvency practitioner appointments across those entities.
3. The relief sought in this application is directed to enabling funding to be pursued (a prospect which has emerged in recent months) and further investigations to be undertaken. Those tasks are anticipated to be undertaken against the background that the Australian Taxation Office claims to be a creditor of various of the Companies in the total amount of $20,472,244.14 and, across the nineteen companies to which Mr Mansfield and Mr Woods are appointed, almost $94 million: Mansfield 2 [8], [10].

Section 588FF(3)(b): applicable principles

1. Section 588FF(1) provides that the court may, on the application of a company's liquidator, make orders in respect of a transaction that is voidable because of s 588FE. Section 588FF(3) provides:

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

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

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

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

whichever is the later; or

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

1. The combined effect of Item 14 in section 91 and section 513A(e) of the Act is that the relation-back day for each Company is the date on which the winding up application for each was filed: namely, 14 September 2022, 16 November 2022 and 7 February 2023, as identified in the Annexure. An order of the kind now sought may be made after the expiry of the three year period in s 588FF(3)(a), provided that (as here) the application for extension was filed within that period: Brereton, in the matter of ICT Century Pty Ltd (in liq) [2025] FCA 107 at [3(a)] (Owens J), referring to McGrath v National Indemnity Company [2004] NSWSC 391; 182 FLR 309 at [18] (Barrett J).
2. In Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher [2015] HCA 10; (2015) 254 CLR 489, the High Court accepted the availability of what were there described as "shelf orders": at [1] and [27].. The High Court emphasised that the function of section 588FF(3)(b) was to confer a discretion on the Court to mitigate, in an appropriate case, the rigours of the time limits imposed by the section and recognised the value of certainty for those who entered transactions during the period in respect of which the transactions may be voidable, but also noted that the policy behind the Act of avoiding transactions by which an insolvent company has disposed of property in circumstances regarded as unfair to the general body of creditors: at [24]. The High Court did not prescribe considerations that are relevant to the exercise of the discretion, but it is clear that it involves a balancing of the requirement of commercial certainty for those who had past dealings with the corporation against the conflicting interest of the creditors of the company: at [8].
3. In Re Octaviar Ltd (recs and mgrs appted) (in liq) [2012] NSWSC 1460; (2012) 271 FLR 413 at [64], Black J referred to the relevant considerations arising upon an application for an extension order under s 588FF(3):

I am conscious that the enactment of time limitations reflects a perception that the quality of justice deteriorates where there is delay and, in some circumstances, there is a need that potential defendants should be made aware of claims against them within a reasonable time and the loss of the ability to make a relevant claim can be justified as providing commercial certainty to others who have had dealings with the company: BP v Brown at [112]-[114], [119]; New Cap above at [54]; Tolcher v Gordon [2005] NSWCA 135; (2005) 53 ACSR 442 at [3]; Re Clarecastle above at [138]. The court should consider whether the Liquidators' have diligently pursued the object of disposing of the proceedings in a timely way; used, or could reasonably have used, available opportunities under the rules or otherwise to avoid delay; and reasonably implemented the practice and procedure of the court with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination: Re Clarecastle above at [129]-[143]. The Liquidators bear the onus of demonstrating why it was just and fair that the time limit prescribed by s 588FF(3) of the Corporations Act should not apply: New Cap above at [55].

1. The relevant factors to be considered by the Court in the exercise of the discretion were considered in the earlier decision of New Cap Reinsurance Corp v Reaseguros Alianza SA [2004] NSWSC 787; (2004) 186 FLR 175 (White J) (see also, to like effect, Walker v CBA Corporate Services (NSW) Pty Ltd [2012] FCA 328; (2012) 88 ACSR 153 at [43]-[44]):

(a) delay and the explanation for that delay;

(b) the merits of the proposed proceedings, unless the Liquidators' purpose is to investigate whether or not to bring the proceedings; and

(c) prejudice arising from the grant of an extension.

1. Delay takes into consideration the amount of time that the liquidators (and perhaps any previous liquidators) have had to perform investigations. When considering the explanation for delay, the Court should consider whether the liquidators have diligently endeavoured to dispose of the proceedings in a timely way or could have used reasonably available opportunities to avoid the delay: Re Clarecastle [2011] NSWSC 857; (2011) 85 ACSR 260 at [137] (Ward J). Delay is more acceptable where it is unlikely to prejudice the defendant: BP Australia Ltd v Brown [2003] NSWCA 216; (2003) 58 NSWLR 322 at [188]-[189] (Spigelman CJ, with whom Mason P and Handley JA agreed).
2. Explanations for delay can include the lack of available information or a lack of cooperation (Re Clarecastle at [216]) and the complexity of proceedings (New Cap at [70]). Seeking funding or uncertainty about funding can assist in explaining a delay: McCann v Mawson Restructures and Workouts Pty Ltd [2016] FCA 1152 at [47] (Edelman J). More emphasis is given to a lack of funding where the proceedings are complicated: BP Australia at [188] (Spiegelman CJ). In McCann, the Court rejected a submission that the liquidator had been dilatory because "the evidence establish[ed] that the current liquidators... performed considerable work, in relation to a huge amount of material [6.5 terabytes of data and 1, 540 boxes of documents], with limited funding": at [49]. A failure to obtain funding is not an explanation by itself, but is weighed against other relevant factors and the need for commercial certainty: In the matter of Cohalan & Mitchell Roofing [2020] VSC 222 at [52]; BP Australia at [118]-[119].
3. In the present case, Mr Mansfield's evidence supports the conclusion that the liquidations are complex, bearing in mind that the Companies form part of a much wider group of approximately three hundred companies. Relevantly, Mr Mansfield notes that "there is a large web of interconnected related party loan accounts between the Dyldam Group of Companies, including the Companies" which require further investigation in order to understand the financial position of each of the Companies: Mansfield 1 at [56(a)]. The report by the administrators of Dyldam Developments Pty Ltd (subject to a DOCA) exposes, at a broad level, the kind of intercompany debts and relationships that exist: see for example DM-1 at pp 988, 994-6, 1003-5.
4. The investigations into those matters have been hindered by a lack of books and records to explain the financial and operational dealings of the Companies: Mansfield 1 at [56(c)]. The Liquidators do not have access to the Companies' email servers: Mansfield 1 at [30(d)(i)B]. The Liquidators also do not have access to the entirety of the Companies' financial records, such as the MYOB records for all of them, as only some have been provided: Mansfield 1 at [30(d)(i)A]; see also Mansfield 3 at Annexure A. Mr Mansfield refers to attempts to elicit information from the directors of the Companies and their advisers, and the evidence demonstrates periods of long delay in connection with the supply of reports on company affairs and property: Mansfield 1 at [52]; DM-1 pp 1340-1409; Mansfield 3 at Annexure A. His evidence is that the responses received are "limited (if any)": Mansfield 1 at [53]; see also DM-1 at pp 1410-1421.
5. Mr Mansfield notes that based on his discussions with current and former officers and advisers, the Companies used a number of separate external advisers with the consequence that (inter alia) investigations have been delayed and made more complex: Mansfield 1 at [55(b)(ii)]. The appointment of multiple different liquidators across the wider Dyldam Group has meant that the various appointees have been unable to have complete visibility of the affairs of the Dyldam Group: Mansfield 1 at [55(c)].
6. Mr Mansfield also refers to the commencement of the "Festival Corp Proceedings" in the Supreme Court of New South Wales between Joseph and Chahida Khattar, on the one hand, and Sam, Maria, Fayad-Lee and Remon Fayad, on the other, on 3 April 2020: Mansfield 1 at [39]. Those proceedings appear to have been compromised in a Settlement Deed dated 14 November 2022: DM-1 at pp 1237-1306. Despite various requests for that document being issued to external advisers associated with the Fayads (see Mansfield 1 at [45(g)-(h)] and DM-1 at pp 1307-9), it was only provided to Mr Mansfield on 30 June 2025 by the ATO: Mansfield 1 at [45(i)]. The Settlement Deed suggests that a wider financial analysis of the Dyldam Group may have been undertaken, which Mr Mansfield does not possess and has not seen: Mansfield 1 at [46](b)].
7. The liquidations of the Companies are without funds, such that it has not been possible to progress investigations by way of public examinations: Mansfield 1 at [55(d)]. It has only been in very recent times (that is, in around July 2025) that the prospect of funding emerged, when the prospect of funding for the present application was raised. That limited funding was approved on 3 September 2025.
8. Mr Mansfield also gives evidence of delay that is peculiar to the external administration of NR Complex Pty Ltd (NR Complex): Mansfield 1 at [48]. Mr Mansfield obtained leave to be appointed as the voluntary administrator of NR Complex on 8 June 2023 with a view to progressing a proposal for a Deed of Company Arrangement which was withdrawn in around September 2023: Mansfield 1 at [51].

1. In considering the merits of the proceedings, the Court undertakes a preliminary review to determine whether the proceedings are so devoid of prospects that it would be unfair, by granting an extension, to expose the other party to the continuing prospect of suit: New Cap at [52]; Re Green [2002] NSWSC 135; (2002) 41 ACSR 69 at [6] (Barrett J). Reviewing the merits may not be necessary if, as here, the liquidator's purpose in seeking the extension is to undertake further work to put himself or herself into a position where he or she properly decides whether not to bring the proceedings: Re Green at [6].

1. The next question is whether likely or actual prejudice resulting from the grant of an extension is sufficiently substantial to outweigh the case for granting an extension: New Cap at [52]; BP Australia at [193]. In New Cap, White J observed that "the absence of any specific prejudice to the defendant is of more weight, although I take into account that prejudice may exist without being identified": at [71], [72]-[75]. In Re Clarecastle, Ward J said that there is a presumptive prejudice from the delay, such as deterioration in the memory of witnesses, although her Honour accepted that specific prejudice is of more weight: at [218]; see also Octaviar at [71].

Evaluative nature of the discretion and extensions in other cases

1. The evaluative nature of the discretion is necessarily fact sensitive, such that the length of extensions granted in other cases may not be of significant utility to the determination of the present application. However, the following examples illustrate the wide range of periods of extension that emerge from the authorities:

(a) In BP Australia, the Court affirmed the decision to grant an extension of 18 months, and although there was no substantial analysis of the length of time, lack of prejudice to BP appeared significant: at [188]-[189].

(b) In McGrath, Re HIH Insurance Ltd [2004] NSWSC 165, the Court granted an extension of 12 months. The liquidators were uncertain about whether they had identified all the voidable transactions because the HIH Group was complex and had two hundred and seventy-four corporate entities located in several countries: at [13]. The liquidators identified the complexity of the work they had to engage in: at [14]. The Court accepted that there were gaps in corporate records and that "the ongoing process of indexing some 100,000 boxes of documents is, of itself, a telling indication of the extraordinary circumstances of these windings up": at [15]. The Court concluded that the extension should be granted because of the size and complexity of the business, the need for continual liaison with regulatory and investigatory bodies and the difficulty in obtaining access to relevant information and documents: at [19].

(c) Justice Lee granted an extension of 12 months in Parker, in the matter of Worldwide Speciality Property Services Pty Limited (in liq) v Worldwide Speciality Property Services Pty Limited (in liq) [2017] FCA 687. His Honour found that there were merits and as such the Court should exercise its discretion to avoid prejudice to creditors: at [29]. The extension was granted even though the delay had not been adequately explained (at [53]-[54]) as there was no particular prejudice to the parties in granting a short extension: at [56]).

(d) In Chin, in the matter of Agatha Trading Pty Ltd (in liq) [2020] FCA 991, the Court granted an extension of some 19 months, in circumstances where the liquidator there encountered difficulties in connection with the adequacy of books and records, an absence of assistance from the director or other relevant persons, and an absence of funding.

1. The traditional approach to the exercise of the discretion has been to ask what was "fair and just" in all the circumstances: BP Australia at [187]-[189].
2. Here, the evidence addresses the various factors which arise on an application for an extension of time under s 588FF(1). Mr Mansfield has given evidence in his confidential affidavit of the steps that he envisages will need to be taken if an extension of time is granted. He has also set out his best estimates, based upon his familiarity with the affairs of the Companies, his dealings with the prospective funder and his long experience as an insolvency practitioner, of the timeframes he estimates will be required to complete the anticipated stages of work.
3. In all of the circumstances, it would be fair and just for the Court to extend the time for the making of any applications under s 588FF(1) of the Act to 12 March 2027, in order to permit the Liquidators to pursue funding and, if available, carry out the various activities Mr Mansfield identifies for the benefit of the insolvent estates of the Companies.

1. Mr Anderson of counsel, who appeared for the plaintiffs, has very properly drawn my attention to the fact that the Liquidators have not given notice of this application to any person. However, a failure to give notice is not fatal to an extension order, and whether the extension should issue is a matter of the Court's discretion: Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher [2014] NSWCA 148; (2014) 87 NSWLR 728 at [106] (Bathurst CJ). Mr Mansfield explains the rationale he has for proceeding in this way in his confidential affidavit.
2. In the circumstances, I am satisfied that it is not necessary to require notice of this application to be given before granting the relief sought.

1. Accordingly, orders in the form propounded by the plaintiffs should be made.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackman.

Annexure: appointment and relation back day summary

NR COMPLEX PTY LTD (in liquidation) (receiver and manager appointed) ACN 149 657 910

MERFAD CAPITAL PTY LTD (in liquidation) (receiver and manager appointed) ACN 153 628 472

CLYDE 88 PTY LTD (in liquidation) ACN 166 128 660.

JAMES 88 PTY LTD (in liquidation) ACN 601 926 596

SFF PROJECTS PTY LTD (in liquidation) ACN 604 252 691

TALLAHON NO. 1 PTY LTD (in liquidation) ACN 167 594 041

GATEWAY PARRAMATTA ONE PTY LTD (in liquidation) ACN 607 653 565

GATEWAY PARRAMATTA ONE COMMERCIAL PTY LTD (in liquidation) ACN 607 735 660

GATEWAY PARRAMATTA TWO PTY LTD (in liquidation) ACN 607 653 574

GATEWAY PARRAMATTA TWO COMMERCIAL PTY LTD (in liquidation) ACN 607 735 759