CORPORATIONS - Voluntary administration - Deed of company arrangement - Application under s 444GA of the Corporations Act 2001 (Cth) for leave to transfer shares - Whether shareholders unfairly prejudiced - Kipoi Holdings Mauritius Limited v Kirman (No 4)

CORPORATIONS - Failure to appoint requisite number of directors to a proprietary company resulting in breach of s 201A of the Corporations Act 2001 (Cth) - Whether breach rendered appointment of administrator under s 436A invalid - Re Condor Blanco Mines Ltd [2016] NSWSC 1196 discussed - Appointment not invalid despite breach of s 201A.

1 The first plaintiff, Stephen Dixon, is the registered liquidator and deed administrator of the second plaintiff, 2362 1653 825 Pty Ltd (formerly known as Kester Black) (the 'Company').

2 The Company was incorporated on 12 September 2017 by Anna Louise Ross. Ms Ross was a director of the Company from the date of its incorporation until 20 June 2024 and again from 7 July 2025. In addition to Ms Ross, Mr Fergus Sully is the other current[1] director of the Company. Mr Sully was appointed on 1 August 2023 and is Ms Ross' domestic partner.

3 The Company operated as an online retailer of cosmetic products from a warehouse located at Warehouse 7, 1 Lennon Street, West Melbourne.

4 The Company currently has 1,631 shareholders[2] holding 10,960,274 shares. The largest shareholder is Ms Ross who holds 9,497,946 shares, comprising approximately 86.66% of all of the shares in the Company. Mr Sully holds 136 shares.

5 All of the shareholders in the Company, except for Ms Ross, are crowd-sourced funding shareholders who invested in response to crowd-sourced funding offers made by the Company in 2021. They are 'CSF Shareholders' within the meaning of s 9 of the Corporations Act 2001 (Cth) (the 'Act').

(a) pursuant to s 444GA(1)(b) of the Act the first plaintiff have leave to transfer the shares (which are currently held by shareholders other than Ms Ross or Mr Sully) in the Company to Ms Ross;

(b) pursuant to s 447A(1) of the Act, the first plaintiff have leave to execute all necessary share forms and other documents ancillary to the relevant share transfer and the entry of Ms Ross in the Company's share register as the recipient of those shares; and

(c) the first plaintiff's costs of, and incidental to, the application be costs and expenses in the deed administration and be paid out of the assets of the Company.

7 In support of the application the plaintiffs rely upon the following materials:

(a) an affidavit of Stephen Robert Dixon sworn 19 July 2025;

(b) an affidavit of Mark Koroneos sworn 18 September 2025;

(c) an affidavit of Mark Koroneos sworn 20 October 2025;

(d) an affidavit of Mark Koroneos sworn 3 November 2025;

(e) an affidavit of Stephen Robert Dixon sworn 6 November 2025;

(f) an affidavit of Mark Koroneos sworn 14 November 2025; and

(g) the plaintiffs' submissions filed on 24 October 2025.

8 On 9 July 2024 the first plaintiff, Mr Dixon, was appointed as voluntary administrator of the Company. The appointment was made by Mr Sully, then the sole director of the Company. The resolution authorising the appointment was made at a "Meeting of the Director" on 9 July 2024 which records the resolution as follows:

The undersigned, being the Director of 2362 1653 825 Pty Ltd ("the Company"), hereby resolve:

• That in the opinion of the Director, the Company is insolvent or is likely to become insolvent at some future time and that an Administrator(s) should be appointed to the Company pursuant to Section 436A of the Corporations Act 2001 ("the Act").
• That the Company appoint Stephen Dixon of Hamilton Murphy Advisory, Level 21, 114 William Street, Melbourne, Victoria, 3000, as Administrator pursuant to Section 436A of the Act.
• That the Company execute, in accordance with the Act, an Instrument of Appointment of Administrator, and, for the purpose thereof, the undersigned, being the sole Director of the Company, is hereby authorised to execute on behalf of the Company the Instrument of Appointment of Administrator.

9 Mr Dixon has opined that the Company was insolvent on or shortly before 9 July 2024, and had failed due to poor strategic management of the business, inadequate cash flow, trading losses and high operating expenses. He further stated that the Company was insolvent or may have become insolvent shortly before 9 July 2024.

10 On 19 July 2024, the first creditors' meeting of the Company took place. No request was made for an appointment of a committee of inspection. Mr Dixon as chairperson provided an update on the administration. He advised that: the Company had continued to trade during the administration period; an offer had been received from a related party for the purchase of the business and assets of the Company on a going concern basis; and the director intended to submit a proposal for a Deed of Company Arrangement ('DOCA').

11 On 1 August 2024, Mr Dixon completed the sale of the Company's business and assets on a going concern basis, for the sum of $146,220. The purchaser of the Company's business was New New New Pty Ltd ('New New New'). Mr Dixon gave the following evidence concerning this transaction:

(a) Prior to the sale to New New New, he considered undertaking a marketing campaign to ascertain whether there was any interest in selling the Company's business assets on the open market. However, prior to proceeding with this campaign he identified that certain commercial experience and knowledge was held by Ms Ross personally and not the Company. This included brand direction, campaign strategy, supplier relationships, customer data strategy, advertising frameworks and operational/commercial know how developed over many years.

(b) Mr Dixon considered that this knowledge and experience was critical to the operations of the Company's business such that a sale on the open market would be unlikely to be successful. Accordingly, he considered that a sale to a related party was the only realistic way that a sale of the Company's business assets could be pursued.

(c) Mr Dixon also believed that the sale was on fair commercial terms given that, as well as the purchase price, it provided for the ongoing employment of the Company's full-time employees and the assumption of accrued employee entitlements.

12 Mr Dixon's investigations revealed that the Company had the following classes of creditors:

(a) employee creditors, who were owed around $15,093 in superannuation, annual and long service leave;

(b) the Australian Taxation Office ('ATO') which was owed around $185,322;

(c) trade creditors, being Australia Post and Meta Platforms, who were owed $253,136; and

(d) Ms Ross, who was owed $222,197 - in respect of zero interest loans provided to the Company to assist with short term cash flow (the 'Related Party Claim').

13 On 5 August 2024, Mr Dixon issued an Administrator's Report to the Creditors ('Report'). The Report detailed, inter alia, Mr Dixon's assessment that:

(a) The failure of the Company was attributable to:

(i) poor strategic management of the Company;

(ii) inadequate cash flow and high cash use; and

(iii) trading losses and high operating expenses.

(b) The financial statements of the Company recorded a net loss of $567,535 for the financial year ended 30 June 2024.

(c) Having reviewed the Company's books and records and undertaken investigations, he had formed the view that the Company was insolvent or may have become insolvent on or shortly before 9 July 2024.

(d) Investigations did not identify any matters or actions which require him to lodge a report with ASIC pursuant to s 438D of the Act; and

(i) he was unable to determine whether there was a viable insolvent trading claim against Mr Sully, and was unable to determine the quantum of any potential insolvent trading claim;

(ii) he identified that there were lump sum payments to the ATO in the amount of $62,125 that may be considered to be unfair preferences; and

(iii) in preliminary investigations he had not identified any other potential recovery actions that may arise pursuant to Part 5.7B of the Act.

14 The Report also included the DOCA proposal put forward by Mr Sully, the relevant terms of which were as follows:

(a) a DOCA fund comprising of: a payment of $5,000 ('DOCA Contribution Sum') on or before the expiration of 30 days from the date of the DOCA being executed ('Execution Date'); surplus funds held by the administrator as at the Execution Date; and the balance of sale proceeds from the sale of the business and assets of the Company, including instalments payable but not yet received;

(b) control over the Company and the business operations to be returned to Mr Sully on the Execution Date;

(c) if Mr Sully requested, Mr Dixon would procure the transfer of all shares owned by the shareholders, apart from Mr Sully, to Mr Sully or a nominated party; and

(d) pursuant to the DOCA, Ms Ross, Mr Sully and other related party creditors would not participate in any dividend.

15 The Report identified that the estimated return to unsecured creditors pursuant to the DOCA proposal was estimated to be 28.91 cents in the dollar, as opposed to between 13.54 and 17.18 cents in the dollar on a liquidation scenario.

16 The second meeting of creditors occurred on 13 August 2024. Mr Dixon, as Chairperson, recommended that the creditors accept the DOCA on the basis, inter alia, that the Company was insolvent and had a deficiency of assets as compared to liabilities. Mr Dixon also gave evidence that:

... [he] considered that the prospect of any recovery was low as the investigations...[he] conducted during the administration revealed that the only likely recovery was a lump sum payment to the Australian Taxation Office which may constitute a preference recovery. The value of this potential claim was modest and was less than the Related Party Claim.

17 The DOCA was executed on 29 August 2024 and contained the following clauses:

8 PAYMENT

8.1 The Director undertakes to pay to the Deed Administrator the Contribution Sum as part of the Deed Fund within thirty (30) days of execution of this Deed.

...

8.3 Upon compliance with Clause 8.1 of this Deed, if requested by the Director in writing, the Deed Administrator will take all reasonable steps (which may include any court application required) to transfer all shares held in the Company by third parties, aside from those owned by the Director and Anna Ross, to the Director and/or the Director's nominated party.

8.4 The successful transfer of the Company's shares as contemplated by Clause 8.3 of this Deed does not impact the Director's obligations arising under this Deed, and/or impede the Deed Administrator from terminating the Deed in accordance with Clause 14.2 of this Deed, providing the Deed has achieved its purpose.

...

14 TERMINATION AND VARIATION OF THE DEED

...

14.2 Termination of the Deed where arrangement achieves purpose

If the Deed Administrator of the Company has paid, transferred, allotted or issued to each Creditor their full entitlements under this Deed in accordance with Clause 11, then this Deed will have achieved its purpose and will be terminated by the Deed Administrator certifying to that effect in writing and within twenty-eight (28) days lodging with the ASIC a Notice of Termination of this Deed of Company Arrangement...

18 On 22 August 2024, a meeting of shareholders was held via zoom. A summary of the meeting was prepared. It relevantly records:

Impact on Shareholders

In the circumstances where unsecured creditor claims will be compromised in the DOCA, there will not be any funds available nor any return to shareholders.

Accordingly, if requested by the Deed Proponent, Mr Sully, the Deed Administrator will procure the transfer of all shares owned by all parties to the current Director or a nominated party, given the lack of any share value.

It was agreed that notice would be provided to shareholders for taxation purposes that there is no prospect of any distribution to the shareholders as creditor claims will not be settled in full.

19 On 1 October 2024, Mr Dixon sent a letter to the shareholders that had consented to their contact details being shared with other shareholders. The letter contained a list of those shareholders and the contact details of solicitors who specialised in insolvency.

20 On 13 January 2025, Mr Dixon received a written request for the transfer of the shares to Ms Ross.

21 At this juncture, I pause to note that Mr Dixon deposed to the fact that, as at the date of his first affidavit:

(a) The DOCA Contribution Sum referred to in clause 8.1 of the DOCA had been received.

(b) The realisation of assets had been concluded and there was no material change to the returns that were estimated in the Report.

(c) There was no update on the potential recovery actions that were set out in the Report.

(d) The Company has no assets (beyond the potential recovery claim against the ATO). Its only purpose is to operate as the leaseholder of the Company's premises.

(e) The potential recovery claim against the ATO is for a modest amount and is less than the Related Party Claim.

(f) If the transfer does not proceed, then upon the effectuation of the DOCA it is highly likely that the Company will be insolvent, as the Related Party Claim will no longer be deferred by the DOCA.

(g) The shares in the Company have no residual value because:

(i) it has no assets beyond the potential recovery claim;

(ii) the potential recovery claim is for a modest amount and there is uncertainty about whether that amount will be recovered;

(iii) it has no business or investments which would enable it to earn any revenue; and

(iv) in comparison to the potential recovery claim, it has the relatively significant liability of the Related Party Claim.

(h) There is no prospect of a return to shareholders.

(1) The administrator of a deed of company arrangement may transfer shares in the company if the administrator has obtained:

(a) the written consent of the owner of the shares; or

(b) the leave of the Court.

(2) A person is not entitled to oppose an application for leave under subsection (1) unless the person is:

(a) a member of the company; or

(b) a creditor of the company; or

(c) any other interested person; or

(d) ASIC.

(3) The Court may only give leave under subsection (1) if it is satisfied that the transfer would not unfairly prejudice the interests of members of the company.

23 The relevant principles on an application of this type are well settled. The Court of Appeal of the Supreme Court of Western Australia has recently identified the applicable criterion as follows:[3]

The key consideration is that posed by s 444GA(3). The court must be satisfied that the proposed transfer would not 'unfairly prejudice' the interests of members of the company. That is not the only consideration. Once the court is satisfied that the transfer would not unfairly prejudice the interests of members of the company there is a residual discretion as to whether or not to grant leave to a deed administrator to transfer shares in the company. In that respect s 444GA(3) provides for a pre-condition to the grant of leave under s 444GA(1)(b). Where the discretion is enlivened it falls to be exercised having due regard to the object of pt 5.3A as set out in s 435A.

The following propositions are generally accepted in relation to an application for leave to transfer shares under s 444GA:

The interests that are required to be taken into account are those of the members generally not just the members whose shares it is desired to transfer.

The section is directed to the interests of members in their capacity as members rather than as creditors or some other capacity.

The requirement that the transfer not unfairly prejudice the interests of members directs the court to consider the impact of compulsory transfer on members where there may be some residual value in the company.

The question of unfairness only arises if prejudice is established. If the company has no residual value to the members - such that the shares have no value - and the members are unlikely to receive any distribution in an immediate winding up, it is difficult to see how, ordinarily, the members could suffer any prejudice, let alone prejudice that could be described as unfair. That assumes that winding up is the only practicable alternative to the deed of company arrangement proposal of which the transfer is an aspect.

One relevant consideration is whether a full and accurate description of the proposal has been given to members and whether members have been given a full opportunity to appear in opposition to the application.

While there is an evidentiary onus on the members to raise any consideration telling against the exercise of the discretion, the ultimate onus of satisfying the court that the discretion should be exercised remains on the deed administrator. This requires the deed administrator to satisfy the court that the transfer would not unfairly prejudice the interests of members of the company.

The observations of White J in Re Diverse Barrel Solutions Pty Ltd provide useful guidance in considering an application for leave pursuant to s 444GA(1):

Whether or not 'unfair prejudice' will result from a transfer of the shares is to be determined having regard to all the circumstances of the case and to the policy of the legislation. Relevant matters would seem to include whether the shares have any residual value which may be lost to the existing shareholders if the leave is granted; whether there is a prospect of the shares obtaining some value within a reasonable time; the steps or measures necessary before the prospect of the shares attaining some value may be realised; and the attitude of the existing shareholders to providing the means by which the shares may obtain some value or by which the company may continue in existence. A relevant comparison will be between the position of the shareholders if the proposal does not proceed and their position if leave to transfer shares is granted.

The fact that shares are to be transferred without compensation is not sufficient, of itself, to establish unfair prejudice. The question whether members hold equity of any residual value is determined by considering the position of the members in a winding up - at least where that is the likely or necessary consequence of the transfer of shares not being approved. That makes it necessary to consider a valuation of the assets and liabilities of the company by reference to a liquidation scenario rather than as a going concern. There would not ordinarily be any prejudice, or at least no prejudice that has the requisite quality of being 'unfairly' prejudicial, if the shares to be transferred would receive no distribution in the event of a liquidation as the only realistic alternative to the proposed transfer.

An assessment that there is no residual value in the shares, and there would be no return to members in an immediate winding up, might not, in every case, be sufficient to allay concerns about unfair prejudice to members. There might, for example, be some cases - perhaps rare - where there is a discernible potential benefit to members from further investigation being carried out by a liquidator. There was no suggestion that the present appeal involved such a case.

The 'interests of members' of the company is concerned with members generally rather than an individual member. That is not to say that, in a particular case, the attitude of an individual member might not be relevant to evaluating the 'interests of members'. Section 444GA(3) is concerned with whether a proposed share transfer will 'unfairly prejudice' the interests of members. It might be relevant, in a particular case, that the prejudice suffered by one or more members is not unfair prejudice because those members consent to the proposed transfer. Observations made by Martin CJ in Weaver v Noble Resources Ltd may be seen as consistent with that possibility, as is s 444GA(1)(a). More generally, so far as the alternate object in s 435A(2) focuses on a better return for the company's creditors and members than would result from an immediate winding up, it is plain that the concern of pt 5.3A is the interests of the members as a whole.

24 I am satisfied that there is no unfair prejudice to shareholders. Even if the application was not granted, the evidence discloses that there would still be no realistic possibility of the members receiving any dividend. The Company has no meaningful assets and no business - the business has been sold.

25 As Mr Dixon deposes, if the DOCA is effectuated or terminated, the related party loans to Ms Ross, which substantially outweighs any assets the Company has, will no longer be deferred. Furthermore, Mr Sully has informed Mr Dixon that the additional responsibilities the Company has by reason of having crowdsourced funding shareholders, mean that he may put the Company into liquidation.

26 There is no intention for the Company to resume trading. In this scenario, there is no realistic possibility of the Company being in a position to return any value to shareholders. As there is no residual value in the Company, no prejudice arises, let alone any unfair prejudice.

27 As I am satisfied that the transfer would not unfairly prejudice the interests of the members of the Company, I turn now to consider matters relevant to my residual discretion, having due regard to the object of Part 5.3A as set out in s 435A of the Act.

28 The initial matter which requires consideration is the effect of the Company's breach of s 201A of the Act. Section 201A of the Act requires that a proprietary company must have at least two directors whilst the company has one or more CSF shareholders. At the time of Mr Dixon's appointment as administrator, deed administrator and at the time Mr Dixon executed the DOCA, the Company only had one director, being Mr Sully. As a consequence, the Company was in breach of s 201A of the Act for the period 20 June 2024 to 6 July 2025.

29 In my view, the discretion of the Court should not be exercised in favour of granting leave if there is a genuine doubt as to the validity of the administrator's appointment.

30 However, I am satisfied, for the purposes of exercising my discretion in this proceeding, that the breach of s 201A of the Act by the Company did not invalidate the appointment of Mr Dixon as administrator. I am of that view for the following reasons.

31 First, the weight of authority supports such a conclusion. In Hutton, in the matter of Big Village Australia (Administrators Appointed),[4] Anderson J stated, in the course of surveying the relevant authorities:[5]

Courts have been hesitant to express a concluded view on whether a breach of s 201A of the Act renders the appointment of a voluntary administrator ineffective. The better view appears to be that the fact a company has breached s 201A(1) does not affect the ability of the company to function (subject to the provisions of its constitution), and therefore does not affect its ability to appoint an administrator under s 436A of the Act.[6]

32 Second, the Act evinces no apparent intention that a breach of s 201A of the Act ought result in invalidity. Whilst the Act evinces a clear intention, supported by the explanatory memorandum,[7] to provide greater protection to CSF shareholders, it does not stipulate that a decision made in breach is invalid, ineffective or void. In this way it can be contrasted with other provisions of the Act which spell out a consequence of invalidity or ineffectiveness.[8] Moreover, the scope and purpose of the Act reveal that a proprietary company with less than two directors is in fact capable of functioning. Section 248B of the Act provides that a director of a proprietary company that has only one director may pass a resolution by recording it and signing the record. To quote and apply Barrett AJA in Re Condor Blanco Mines Ltd[9] to the extant circumstances, '[t]here is no indication [in the statutory text] that the directorate becomes paralysed and incapable when the deficiency in the directorate occurs'.[10]

33 Third, as Barrett AJA observed in Re Condor Blanco,[11] the reference in s 436A(1) of the Act to a company's 'board' extends to a board the composition of which does not accord with s 201A of the Act, provided that the constitution allows a board so constituted to function.

34 Thus, the relevant question is whether the constitution of the Company allows it to function in the event that there is only one director.

35 The Company constitution relevantly provides as follows:

2.2 How does Kester Black exercise its powers?

...

Validity of acts of Directors

(d) All acts of the Director, Board or Committee remain valid even if it is later discovered that a Director was disqualified or there was a defect in the appointment of a Director or Director in a Committee or their entitlement to vote.

(e) A rule made or resolution passed by Kester Black in a general meeting does not invalidate any prior act of the Directors which would have been valid if that rule or resolution had not been made or passed.

...

1. Directors' conduct of Kester Black's business

...

3.2 How does the Board make decisions

(a) The Board may make a decision by passing an Ordinary Resolution unless otherwise required under this Constitution. This may be conducted by a Board meeting or by circular resolution according to rule (c) below.

(c) The Board may pass a resolution without a meeting being held if all the Directors (entitled to vote on the resolution) physically or electronically sign a document (one copy or separate, identical copies) containing a statement that they are in favour of the resolution set out in the document. A resolution passed in this way is passed when the last Director signs.

...

3.3 How are Board meetings conducted and resolutions passed?

...

What are the requirements for quorum?

(c) The quorum for a Board meeting is two Directions entitled to vote unless the Board determines otherwise. The quorum must be present at all times during the meeting.

...

Casting vote

...

(l) If Kester Black has only one Director, the Director must record and sign the passing of a resolution or making of a declaration by the Director in Kester Black's minute books within a reasonable time after the resolution is passed or declaration is made.

...

1. Board Composition

...

4.2 How many Directors must Kester Black have?

(a) Kester Black must have at least two Directors.

36 In the present case, the constitution of the Company evinces an intention that a situation may arise where board meetings can be held and resolutions can be passed when the Company only has one director. That is evident from clause 3.3(l) of the constitution. That clause is unfettered in its breadth. It is not expressed to operate so as to only allow a sole director to exercise power for the appointment of a second director - if the intention was to circumscribe or confine the power of a director acting in a sole capacity, it would have been very easy to effect that intention - including by introducing language of the type set out in s 201H of the Act. The constitution evidences an objective intention that the decisions of the Company ought (conformably with s 201A) be made by at least two directors of the Company, but that the Company may validly exercise power through one director in situations where there is only one director.

37 The second substantive matter requiring consideration is whether the transfer of shares is prohibited by s 606 of the Act. If the plaintiffs' application is granted, Ms Ross' voting power in the Company would increase from approximately 86% to 100%. That would ordinarily trigger the prohibition in s 606(1) of the Act unless an exception applied.

38 Item 19A of s 611 of the Act provides an exception to the prohibition in s 606(1) to the acquisition of issued voting shares in a proprietary company, if the company has one or more crowd sourced funding shareholders and all the other requirements prescribed by the regulations are met.

39 Regulation 6.2.01A of the Corporations Regulations 2001 (Cth) requires that the company 'is an eligible CSF company at the time of the acquisition of the relevant interest'.

40 An 'eligible CSF company' is defined by s 738H of the Act. Relevantly, that section requires that:

(a) the company being a proprietary company that has at least two directors who ordinarily reside in Australia;

(b) the company's principal place of business is in Australia; and

(c) the company's consolidated gross assets or revenue is less than $25 million.

41 The evidence discloses that since the reappointment of Ms Ross as a director on 7 July 2025, the Company has met these requirements. Specifically:

(a) it has two directors, Mr Sully and Ms Ross, who both reside in Australia;

(b) its principal place of business is in Australia; and

(c) in the financial year ending 30 June 2024, it had total assets of $906,580 and trading and other income of $3,967,434. This was prior to the sale of Company's business meaning that any updated figures will now be far less than those amounts, and well below the statutory thresholds of $25 million.

42 The exercise of discretion in favour of the transfer is also warranted by the following matters.

43 First, the DOCA requires Mr Dixon to take all reasonable steps to transfer the shares, including by making this application. The DOCA binds Mr Dixon, as well as the Company and its members. The DOCA was approved unanimously by creditors, including the ATO.

44 Second, shareholders have been on notice that this application may be made since January 2025. They have been informed that the application has been made and have been kept up to date of its progress. The shareholders have been provided with two opportunities to file submissions and be heard. A significant number (at least 560 shareholders) have consented to the transfer. After becoming concerned that the evidence revealed that a small number of shareholders had been unable to access the Court documents, I ordered that the documents be provided under cover of a notice to shareholders and that a second opportunity to make submissions be granted. The text of the notice provided to shareholders was as follows:

This is a notice to shareholders in 2362 1653 825 PTY LTD (subject to Deed of Company Arrangement) formerly known as Kester Black Pty Ltd (ACN 621 653 825) (the 'Company').

The Administrator of the Company is applying for leave of the Court to effect the transfer of all of the shares in the Company (other than those held by Fergus Sully) to Anna Ross. The application is made pursuant to section 444GA(1)(b) of the Corporations Act 2001 (Cth).

The application was heard by the Honourable Justice Craig of the Supreme Court of Victoria on 6 November 2025. His Honour was made aware that certain shareholders may have been unable to access the court documents for the hearing. In addition, the plaintiffs have drawn the Court's attention to the fact that the Administrator was appointed at a time when the Company had one director, in breach of section 201A of the Corporations Act 2001 (Cth).

As a result, His Honour has ordered the Administrator and the Company to redistribute the court documents for the application and the transcript of the hearing by 4pm on 7 November 2025 to all shareholders for whom they have an email address. Those documents are contained in the following links.

The hearing of the application will continue at 10:00am on 17 November 2025. Any shareholder that wishes to appear at the hearing is directed to notify Justice Craig's chambers at chambers.craig@supcourt.vic.gov.au. Any shareholder that wishes to object to the transfer is directed to send a short submission identifying the grounds of the objection to chambers.craig@supcourt.vic.gov.au by 4:00pm on 13 November 2025. Any such objection should be copied in to mark@ck.legal. I am satisfied that Shareholders have had sufficient and clear notice of the application and sufficient time to obtain their own advice and make submissions about the transfer.

45 In these circumstances, I am satisfied the shareholders have had a full and fair opportunity to voice any objection. The submissions and concerns raised by shareholders exhibited to the plaintiffs' affidavit material prior to the issuing of the notice above, detail among other things; refusal to provide consent to the transfer, allegations of unethical practices of the Company, concern over the conduct of the directors and administrator regarding the sale of the Company and an allegation of oppressive conduct towards shareholders.

46 For completeness, I note that after the further opportunity was given to shareholders to object to the application, submissions and objections were sent to the Court directly. Insofar as objections were not exhibited to the material above, they are listed in in Annexure A to these reasons. I accepted those emails into evidence.[12] The objections made included:

(a) insufficient transparency about the Company's financial position;

(b) no independent valuation or administrator's report confirming that the shares have no residual value;

(c) the transfer would be inconsistent with the purpose of the DOCA;

(d) adequacy of communication to shareholders;

(e) validity of the administrator's appointment when the Company had only one director;

(f) the valuation of the Company's assets for the purpose of sale to New New New;

(g) conflicting statements made by the administrator and Ms Ross regarding the Company's ownership of intellectual property, bearing relevance on the Company's sale structure and price to New New New;

(h) the sale to New New New was to a related party at a price well below market value and constituted illegal phoenix activity;

(i) the administrator's assertions that only Ms Ross could operate the Company;

(j) payment of the administrator's fees by a related party;

(k) breaches of Chapter 2E of the Act with respect to the Company's sale to New New New;

(l) breaches of the Company's constitution regarding disclosure of personal interests and related party dealings; and

(m) allegations of conspiracy and improper conduct of Ms Ross, Mr Sully and the administrator.

47 No shareholder appeared at the hearing to elaborate on the objections made. I have read and considered each objection. A number of shareholders have expressed an understandable disquiet about the complete loss of their investment and the fact that the effect of the DOCA is to effect a sale of the business to a new company under the control of Ms Ross and Mr Sully. For the purposes of the application before this Court, the level of generality at which the submissions are made, the absence of supporting admissible evidence, the absence of evidence that the shares have residual value under the DOCA or in a different scenario, the countervailing evidence of Mr Dixon and the relatively small proportion of the overall shareholding attributable to the objecting shareholders, all militate in favour of exercising my residual discretion in favour of the transfer.

48 It is important to emphasise that there is no suggestion on the evidence that refusing the transfer will place shareholders in a better position and allow the realisation of value to occur. Moreover, despite the effluxion of time, no shareholder has taken formal action with respect to any of the grounds detailed above including under s 208 of the Act (which applies to CSF companies by reason of s 738ZK of the Act). Any such application, if formulated, would need to identify the basis upon which Mr Dixon's opinion (set out at paragraph 11(c) above) should be impugned. Absent that articulated allegation, it is sufficient to note that the evidence of Mr Dixon appears to support a contention that the exception in s 210 of the Act properly applies to the related party sale to New New New. To the extent relevant, noting that the relevant enquiry is focused on the interests of the members as a whole, I also note that the DOCA does not appear, on its terms, to bar any shareholder from bringing claims for misrepresentation or misleading or deceptive conduct against the directors. Such a course would remain open to any aggrieved shareholder who has a properly established and evidenced foundation for such a claim. It is unnecessary to decide whether the DOCA would bar such a claim against the Company - as that would be an effect of the DOCA and not a consequence of the transfer of the affected shareholders' shares.

49 For these reasons, I have determined that these objections do not militate sufficiently firmly against the exercise of my discretion in favour of the transfer.

50 Third, ASIC has been informed of the application and has not indicated that it opposes the application.

51 Finally, as adverted to earlier, the investigations conducted by Mr Dixon during the administration revealed that there may be a lump sum payment to the ATO of $62,125 that may be considered an unfair preference, but there were no other potential recovery actions that may arise pursuant to Part 5.7B of the Act. Mr Dixon has acknowledged that if a liquidator was appointed they would need to conduct further investigations to determine if and at what stage insolvent trading occurred.

52 Mr Dixon also seeks leave pursuant to s 447A of the Act, to execute all necessary share forms and other documents ancillary to the share transfer and to effect the entry of Ms Ross in the Company's share register as the recipient of those shares. Orders of this type have been made in cognate circumstances, in order to properly give effect to the transfer of shares pursuant to s 444GA of the Act.[13] Section 447A is a plenary power to do whatever is just in the circumstances.[14] I accept that this is an appropriate case for procedural orders of the kind sought to be made.

53 On the face of the DOCA itself, this application was properly brought in the performance of Mr Dixon's role as deed administrator and to advance the implementation of the DOCA which was unanimously supported by the creditors. Mr Willis properly raised the question of whether the costs order should encompass the costs of the hearing on 6 November 2025. I consider that it should. Candid and helpful submissions were made on behalf of Mr Dixon as to the breach of s 201A of the Act, the terms of the constitution and the form of notice to shareholders. I will make the order as to costs sought by Mr Dixon on that basis.[15]

54 For the foregoing reasons, I will make orders in the terms sought and referred to in paragraph 6 above.

• Email from Kate Hughes on 13 November 2025 at 11:46am;
• Email from Jennifer Gay on 13 November 2025 at 4:19pm;
• Email from Mark Cant on 13 November 2025 at 6:49pm;
• Email from Bronwen George on 15 November 2025 at 2.38pm; and
• Email from Rebecca Miller on 15 November 2025 at 3.05pm.

[1] Between 1 July 2021 and 23 May 2023, Mr David Chin was a director of the Company.

[2] Affidavit of Mr Stephen Dixon sworn 19 July 2025, [7].

[3] Kipoi Holdings Mauritius Limited v Robert Michael Kirman and Robert Conry Brauer (as joint and several administrators of Tiger Resources Ltd) (Subject to Deed of Company Arrangement) (No 4) [2024] WASCA 145, [287]-[291], [297] (per Vaughan JA, Mitchell JA relevantly agreeing) (Buss P at [149] outlines some of the principles discussed at [287]-[291, [297]) ('Kipoi'). Citations omitted.

[4] [2023] FCA 48 ('Hutton').

[5] Re Continental Pacific Ltd [2002] NSWSC 789, [9]-[10] (Barrett J); Re Creative Memories Australia Pty Ltd (Administrators Appointed) [2013] NSWSC 652, [7] (Hammerschlag J); Re DH International Pty Ltd (Administrators Appointed) 95 ACSR 578; [2013] NSWSC 1120, [8], [14], [22] (Brereton J); Re Condor Blanco Mines Ltd [2016] NSWSC 1196, [95]-[96], [102] (Barrett AJA) ('Re Condor Blanco'); Re Milgerd Nominees Pty Ltd (Administrators Appointed) [2019] NSWSC 311, [14]-[16] (Black J). These authorities are contrasted with the decision of Re Jack James as Administrator of ZYL Ltd [2015] WASC 57 (Master Sanderson).

[7] Explanatory Memorandum, Corporations Amendment (Crowd-Sourced Funding for Proprietary Companies) Bill 2017, 1.27-1.29.

[8] See by way of example, Corporations Act 2001 (Cth) ss 601GA(2)-(3), 650G, 703.

[9] [2016] NSWSC 1196.

[13] See, for example, Dunn, in the matter of Centrex Limited (Subject to Deed of Company Arrangement) [2025] FCA 995, [61] (Moshinsky J) ('Re Centrex'), the cases cited therein and Re Covaler Pty Ltd (subject to deed of company arrangement) [2025] VSC 473, [59] (Waller J) ('Re Covaler').

[15] See, to similar effect, Re Covaler [60].