Cussen, in the matter of Lindak Investment Holdings Pty Ltd [2025] FCA 675 (23 June 2025)

Perpetual Trustee Co Limited v Attorney-General (1937) 54 WN (NSW) 95

Re Sunnya Pty Ltd [2023] NSWSC 225

Re Wan Ze Property Development (Aust) Pty Ltd [2012] NSWSC 722

Counsel for the plaintiffs and the 4th, 6th, 7th, 10th and 22nd defendants

Solicitor for the plaintiffs and the 4th, 6th, 7th, 10th and 22nd defendants

The word 'twenty-sixth' is changed to 'twenty-seventh' in paragraph 66.

IN THE MATTER OF LINDAK INVESTMENT HOLDINGS PTY LTD ACN 622 461 483

NEIL ROBERT CUSSEN, ANTHONY PHILLIP WRIGHT, AND KATHERINE ELIZABETH BARNET IN THEIR CAPACITY AS RECEIVERS OF THE ISG PRIVATE ACCESS FUND ARSN 618 548 333 AND THE ISG REAL ESTATE EQUITY FUND ARSN 618 548 780 AND LIQUIDATORS OF THE SECOND PLAINTIFF

ACN 114 733 569 LIMITED (FORMERLY KNOWN AS ISG FINANCIAL SERVICES LIMITED) (IN LIQUIDATION) (RECEIVERS APPOINTED)

LINDAK INVESTMENT HOLDINGS PTY LTD ACN 622 461 483

KAPPA INVESTMENT HOLDINGS PTY LTD ACN 623 580 076 (and others named in the Schedule)

1. Pursuant to Rules 8.21 and/or 9.05 of the Federal Court Rules 2011 (Cth), the fourth, sixth, seventh, tenth and twenty-second defendants be joined as the third to seventh plaintiffs, respectively, to the proceeding.
2. To the extent necessary, pursuant to Rules 1.35, 8.22 and/or 9.05, order that the date the proceeding is taken to have commenced insofar as the claims for relief made by the third to seventh plaintiffs are concerned is the date of these orders.
3. Pursuant to Rule 8.21, leave be granted to the plaintiffs to file in Court an Amended Originating Process generally in the form of Annexure B to the draft Short Minutes of Order handed up in Court on 10 June 2025, but with the following further amendments:

(a) the name of the Tenth Defendant in the Schedule to be struck through;

(b) the abbreviation "ACN" to be inserted in the name of the Third Plaintiff in the Schedule;

(c) the words "in liquidation" to be inserted in the names of the Third to Seventh Plaintiffs inclusive in the Schedule; and

(d) any other typographical or formal corrections.

1. Pursuant to section 467(3)(b) of the Corporations Act 2001 (Cth), waive the need for compliance with section 465A(1) of the Corporations Act in respect of the third to seventh plaintiffs' applications to wind up the eighth, ninth, thirteenth to sixteenth (inclusive), and twenty-third to twenty-seventh (inclusive) defendants.
2. Pursuant to section 461(1)(k) of the Corporations Act on the application of the third and sixth plaintiffs, the twenty-seventh defendant, Capital Provider Nominees Pty Ltd ACN 654 507 221 (formerly known as ISG CP Nominees Pty Ltd), be wound up.
3. Pursuant to section 461(1)(k) of the Corporations Act, on the application of the fourth plaintiff, the ninth defendant, New Norfolk MPA Nominees Pty Ltd (Controllers Appointed) ACN 636 839 239, be wound up.
4. Pursuant to section 461(1)(k) of the Corporations Act, on the application of the fifth plaintiff, the eighth defendant, The Mills Nominees Retirement Village Pty Ltd ACN 642 328 701, be wound up.
5. Pursuant to section 461(1)(k) of the Corporations Act, on the application of the seventh plaintiff, the following parties be wound up:

(a) the thirteenth defendant, Noble Retirement Holdings Pty Ltd ACN 613 718 648;

(b) the fourteenth defendant, 1202 Creek Road TDG Pty Ltd ACN 613 999 107;

(c) the fifteenth defendant, Gateway Investment Holdings Pty Ltd ACN 635 643 186;

(d) the sixteenth defendant, Gateway Estate Nominees Pty Ltd (Controllers Appointed) ACN 632 231 479;

(e) the twenty-third defendant, A.C.N. 167 460 924 ACN 167 460 924 (formerly known as ISG Securities Pty Ltd);

(f) the twenty-fourth defendant, A.C.N. 613 718 913 ACN 613 718 913 (formerly known as ISG Capital Pty Ltd);

(g) the twenty-fifth defendant, HMS Partners Nominees Pty Ltd ACN 603 992 052; and

(h) the twenty-sixth defendant, ISG Investment Holdings Pty Ltd ACN 612 514 235.

1. The first plaintiffs, Neil Robert Cussen, Anthony Phillip Wright and Katherine Elizabeth Barnet of Olvera Advisors Pty Ltd, Level 6, 9 Barrack Street, Sydney NSW 2000, be appointed as joint and several liquidators of each of the defendants referred to in Orders 5 to 8 (inclusive) above.
2. The second plaintiff be granted leave, pursuant to section 237 of the Corporations Act to bring proceedings on behalf of the twenty-eighth defendant, NIVA Investment Holdings Pty Ltd (subject to DOCA) seeking the winding up of the seventeenth defendant, NIVA Group Pty Ltd ACN 640 026 222.
3. Any interlocutory application for leave to:

(a) join:

(i) the twenty-fifth defendant as the eighth plaintiff;

(ii) the twenty-seventh defendant as the ninth plaintiff; and/or

(iii) the twenty-eighth defendant as the tenth plaintiff;

(b) file a Further Amended Originating Process to include a claim by:

(i) the twenty-fifth defendant (as the eighth plaintiff) to wind up the twelfth defendant;

(ii) the twenty-seventh defendant (as the ninth plaintiff) to wind up the fifth defendant and/or the eleventh defendant;

(iii) the twenty-eighth defendant (as the tenth plaintiff) to wind up the seventeenth defendant

be filed and served on or before 4:00 pm on 20 June 2025.

1. Any interlocutory application filed pursuant to Order 11 above be returnable at 10.15 am on 27 June 2025, with the intention that if leave to join additional plaintiffs and file a Further Amended Originating Process is granted, argument concerning the relief sought in the Further Amended Originating Process will be heard immediately thereafter.
2. Any evidence upon which any party may wish to rely at the hearing on 27 June 2025 should be filed and served by 5:00 pm on 25 June 2025.
3. The plaintiffs' costs in respect of the Amended Originating Process be costs in the winding up of each of the defendants who have been wound up pursuant to these orders.

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

1. The second plaintiff is the responsible entity of two retail managed investment schemes which are registered under Chapter 5C of the Corporations Act 2001 (Cth). One scheme is known as the ISG Private Access Fund (or PAF), and the other is the ISG Real Estate Equity Fund (or REEF). The principal human actor behind the schemes was a Mr Benjamin Godfrey, who was declared bankrupt on 3 March 2025.
2. The activities of each scheme were described in a product disclosure statement, and both were comprised of a number of sub-schemes, each with its own supplementary PDS. Each sub-scheme represented a particular investment. In broad terms, the investments described in those disclosure documents involved investor funds being used to acquire redeemable preference shares in a special purpose vehicle, which would in turn advance the funds by way of loan or subscription to another company that would perform the relevant investment activity. In these proceedings, the former companies were referred to as "investment companies", while the latter were referred to as "development companies" (or, in the case of the PAF, "investment vehicles"). In a few sub-schemes there was an additional entity, referred to as a "capital provider", interposed between the investment company and the development company.
3. With two exceptions, each of the defendants is an investment company, a development company, or a capital provider.
4. The first exception is the twenty-second defendant, which has been referred to in these proceedings as the "treasury company". Frequently, in practice, instead of a group company using the funds advanced to it for the purpose of undertaking the particular investment for which it was responsible, those funds would be lent, on an unsecured basis, to the treasury company. The treasury company thus pooled money loaned to it by multiple group companies and used that pooled fund to finance the activities of the group generally (and for other purposes, including the redemption of units in particular sub-schemes) by way of its own unsecured loans. Those loans, and the use of investor funds for purposes other than that of the sub-scheme in which an investor had acquired units, were inconsistent with the uses of investor funds disclosed in the disclosure documents.
5. The second exception is the twenty-third to twenty-sixth defendants. Those companies were all related to Mr Godfrey in some way, and had significant dealings with the treasury company. At all relevant times, Mr Godfrey was the sole director of each company. He was also the sole shareholder of the twenty-fifth defendant, and the majority shareholder of the twenty-sixth defendant. The sole shareholder of both the twenty-third and twenty-fourth defendants was the twenty-sixth defendant.
6. On 30 September 2024, the Supreme Court of Queensland appointed the first plaintiffs as receivers of the assets of both schemes, and directed, pursuant to s 601ND(1) of the Corporations Act, that the responsible entity wind them up. On 18 December 2024, the first plaintiffs were appointed as liquidators of the responsible entity.
7. The originating process that commenced these proceedings was accepted for filing on 16 January 2025. It sought relief that would achieve, ultimately, and in one way or another, the winding up of all of the defendants (noting that the proceedings were ultimately discontinued against the nineteenth defendant). The problem confronting the plaintiffs, however, was that they did not have standing to wind up every defendant (as to which see s 462 of the Corporations Act).
8. The originating process was first made returnable before Markovic J on 23 and 24 January 2025. The plaintiffs sought to persuade her Honour to wind up, with only a few exceptions, all of the defendants. To the extent that the plaintiffs had standing pursuant to s 462, the application was a conventional one. To the extent that the plaintiffs did not have standing, however, they sought to persuade her Honour that:

(a) Once the companies in respect of whom the plaintiffs had standing had been wound up, leave should be granted to the first plaintiffs to proceed immediately on behalf of some of the now wound-up companies that would have standing to wind up other defendants, and wind up those other companies;

(b) Leave pursuant to s 237 of the Corporations Act should be granted to the responsible entity to proceed on behalf of the twenty-eighth defendant, to apply to wind up the seventeenth defendant, and that that application of the twenty-eighth defendant should be heard and determined immediately; and

(c) Once the seventeenth defendant was wound up, because it would have standing to wind up the eighteenth defendant, the first plaintiffs should be granted leave to proceed immediately on behalf of the seventeenth defendant to wind up that company.

1. Justice Markovic was satisfied that the responsible entity had standing to wind up most of the investment companies (specifically, the first, second, third, fourth, sixth, seventh, tenth, and twenty-first defendants), as well as the treasury company, because it held redeemable preference shares in them, and was thus a "contributory" with standing pursuant to s 462(2)(c). Each of those companies, save for the third defendant, was wound up by order of Markovic J made on 24 January 2025. The application in relation to the third defendant was not heard at the same time, because an investor in the relevant sub-scheme indicated that it would oppose the company being wound-up. That application was ultimately heard by me on 2 May 2025, and I ordered that the third defendant be wound up on that same day.
2. Justice Markovic was not prepared, on 24 January 2025, to wind up any company in relation to which the plaintiffs lacked standing. Her Honour did not dismiss the originating process insofar as it sought the winding up, or other relief, in relation to those companies. Rather, the balance of the originating process was listed for case management in the Corporations List.
3. In due course, on 9 May 2025, the first plaintiffs filed an interlocutory application that was listed for hearing before me on 10 June 2025. By that application the plaintiffs sought orders that:

(a) the fourth, sixth, seventh, tenth, and twenty-second defendants (each of which had been wound up by Markovic J on 24 January 2025) be joined as the third to seventh plaintiffs "now for then";

(b) leave be granted to file an amended originating process that, relevantly to what was pressed before me on 10 June 2025, sought:

(i) on the application of the new third to seventh plaintiffs, to wind up the eighth, ninth, thirteenth to sixteenth, and twenty-third to twenty seventh defendants;

(ii) a grant of leave to the second plaintiff, pursuant to s 237 of the Corporations Act, to proceed on behalf of the twenty-eighth defendant to wind up the seventeenth defendant;

(iii) a grant of leave to the first plaintiffs, "now for then", upon the winding up of the ninth, seventeenth, and twenty-seventh defendants, to proceed to wind up the fifth, eleventh, twelfth, and eighteenth defendants;

(c) immediately upon the orders above being made, the plaintiffs be entitled to move for winding up orders against all of the remaining defendants as identified in the amended originating process.

1. It may be observed that the application that was made before me on 10 June 2025 bore a strong conceptual similarity to that made before Markovic J on 24 January 2025:

(a) Assuming I granted leave to join certain of the companies wound up by Markovic J as a plaintiff, each such company would have standing to apply to wind up one or more defendants. To that extent, the application would bear a conventional aspect.

(b) There was an application for the second plaintiff to be granted leave pursuant to s 237 of the Corporations Act to proceed on behalf of the twenty-eighth defendant to wind up the seventeenth defendant (and an application that, should such leave be granted, the winding up application be heard and determined immediately). (I pause to note that this application did not appear ultimately to be pressed before Markovic J).

(c) There was an application that, upon winding up certain of the defendants pursuant to the two steps just outlined, and utilising the standing possessed by those companies, the Court proceed immediately to hear and determine applications to wind up the remaining defendants.

1. In other words, the general approach of relying on a staged, but nonetheless effectively simultaneous, process remained fundamentally unaltered (albeit that there were fewer companies in respect of which the indirect process was now required).
2. By letter, ASIC indicated that it supported the plaintiffs' application.
3. On 13 June 2025 I made orders. These are my reasons for them.

1. The plaintiffs did not identify the particular source of power relied upon in support of the application to "join" the fourth, sixth, seventh, tenth, and twenty-second defendants as the third to seventh plaintiffs in the proceedings.
2. An obvious candidate would be r 9.05(b)(iii) of the Federal Court Rules 2011 (Cth). That rule authorises the Court to "order that a person be joined as a party to the proceeding if the person ... is a person ... who should be joined as a party in order to enable determination of a related dispute and, as a result, avoid multiplicity of proceedings". The precise terms in which that power is expressed might be thought to be inapt, however, in circumstances where the person sought to be joined is already a party to the proceedings (albeit in the capacity of a defendant, rather than a plaintiff).
3. Another possibility is r 8.21(1), which authorises amendments to an originating application "including" amendments for a range of reasons, many of which come close to, but do not quite capture, what is sought to be achieved here (save, perhaps, for amendments "to avoid the multiplicity of proceedings"). Some of the specific categories of amendments identified (e.g., sub-paragraphs (1)(c), (d), (e) and (f)) do make plain, however, that the power conferred by r 8.21 does extend to amendments affecting the identity of parties to the proceedings.
4. Ultimately, I consider that both of those powers (and certainly those powers together) are broad enough to achieve what is sought to be done.
5. In relation to the r 9.05 joinder power, there is a fundamental, indeed obvious, difference between a plaintiff and a defendant. That difference is neatly captured in the definitions of those terms found in the Federal Court (Corporations) Rules 2000 (Cth), r 1.5. A plaintiff is "a person claiming relief (except interlocutory relief)", whereas a defendant is "a person against whom relief (except interlocutory relief) is claimed".
6. At the time these proceedings were commenced, the only parties claiming any relief were the first and second plaintiffs. At that time, the defendants who are now sought to be joined as plaintiffs were persons against whom relief was sought (i.e., orders that they be wound up). Now that they have been wound up, there is no further claim that is made against them. Equally, they now wish to make their own claim. The role that it is sought to have them play in the proceedings, and the capacity in which they would participate, are thus fundamentally different.
7. It is well established that a person cannot be a plaintiff and a defendant in the same proceeding: see, e.g., Hamilton v Piggott Wood & Baker [2003] FCA 1055 at [12]; Perpetual Trustee Co Limited v Attorney-General (1937) 54 WN (NSW) 95. By parity of reasoning, it seems to me that what is now sought to be done is for the relevant defendants to cease to be parties to the proceedings as defendants, and for them to be joined to the proceedings as plaintiffs. Viewed in that way, I consider the power in r 9.05 to "order that a person be joined as a party to the proceeding" is apt to apply to the present circumstances.
8. Insofar as r 8.21(1) is concerned, the breadth of that power is confirmed by the use of the word "including" before the specifically identified examples are given. As I have already mentioned, while none of those specific examples (save the broad instance of avoiding the multiplicity of proceedings) covers what is sought to be done here, they do demonstrate that the power extends to amendments affecting the identity of parties. I consider that the power is ample to authorise an amendment to an originating process to change the status of a party from a defendant to a plaintiff (at least in circumstances where there is no extant claim made against the party, but there is a claim sought to be brought by the party, and the claims are sufficiently related that it would avoid undesirable multiplicity in proceedings).
9. The more orthodox approach, of course, would have been for the relevant defendants to commence their own, new, proceedings as plaintiffs. The Corporations Act deliberately confers standing to apply to wind up a company on specific and limited classes of person. It is fundamentally misconceived to view the proceedings commenced by the first and second plaintiffs as a single project by those parties to wind up all of the defendants. Such an application could have been made by ASIC pursuant to the standing conferred on it by s 462(2)(e) and s 464, but for whatever reason ASIC chose not to do that (while expressing its support for the approach sought to be taken by the first and second plaintiffs).
10. The standing requirements are not empty technical or procedural requirements, capable of being disregarded in the interests of efficiency. They are an important substantive limitation on the circumstances in which a very serious application in relation to a company can be made. It is for that reason (discussed further below) that I did not consider it appropriate to sanction that aspect of the process proposed by the first and second plaintiffs, whereby a winding up application in relation to a company by those plaintiffs could be made as soon as the first plaintiffs had been appointed liquidators of a defendant that would have standing.
11. A winding up application can only be made by a person with standing, and the decision to apply to wind up a company should be made by that person. If a defendant has standing to wind up another defendant, then unless and until the former determines to apply to wind up the latter, there can be no valid application capable of determination by the Court. Ordinarily that would be done by the defendant commencing, as plaintiff, its own proceedings.
12. But I am satisfied that the interlinked way in which the various companies conducted and operated the managed investment schemes, the common factual matrix relevant to all applications to wind up those companies, the fact that the first plaintiffs are receivers of the entirety of the schemes, and seek (with ASIC's support) to be appointed as liquidators to any company in the group that is wound up, means that there are practical advantages to having one set of proceedings within which all such applications are made. Those considerations, and having regard to the overarching purpose of the Rules set out in s 37M of the Federal Court of Australia Act 2011 (Cth), convince me that it is appropriate to make the joinder and amendment orders sought, rather than require the relevant defendants to commence separate proceedings.
13. The practical advantages of this approach should not, however, be allowed to obscure the important point that a winding up application can only be made in these proceedings by a company with standing applying to be joined as a plaintiff, and seeking to amend the originating process to include its claim. The "shortcut" approach advocated by the plaintiffs is not available.
14. Another reason why it is important not to disregard the fact that a valid application to wind up a company can only be made by a person with standing is the potential for a procedural "shortcut" of the kind proposed by the first and second plaintiffs to alter the rights of third parties by a side wind. One example of that potential concerns the calculation of the relation-back day which, at least in some cases, is the date upon which the winding up application was filed (see s 91). One consequence of the first and second plaintiffs' proposed "shortcut" approach is that the application pursuant to which all of the defendants were wound up would be the application accepted for filing on 16 January 2025. That would mean that, even where an application to wind up a company was only able to be brought in reliance on the standing of a defendant to which the first plaintiffs were appointed liquidators by an order made in the proceedings, the application would have been made on the date the proceedings were commenced. The potential to affect the substantive rights of third parties in that way (or even just to produce a relation-back day earlier than the date upon which the application was capable of being made) is a powerful argument against the availability of the "shortcut" approach for which the first and second plaintiffs advocated.
15. It is also important, of course, to guard against any similar potential for unprincipled outcomes by reason of the making of the joinder and amendment orders sought by the plaintiffs. They contended that the order joining the new plaintiffs should be made "now for then": in other words, that the new plaintiffs' applications to wind up the relevant defendants be treated as if they had been made at the same time that the first and second plaintiffs commenced these proceedings. For the reasons I have already given, I do not think that such an order should be made.
16. For one thing, r 9.05(3) provides that "if a person is joined as a party under this rule, the start date of the proceeding for the person is the date on which the order is made". If I am right that the power to make the order derives, at least in part, from r 9.05(1), it follows that (unless I were prepared to make an order inconsistent with the rules under r 1.35) the joinder of the new plaintiffs would take effect as at the date of the order. See also, generally, Cockerill v Westpac Banking Corp (1991) 32 FCR 36. For the reasons I have given, I consider that it would be inappropriate to make an order inconsistent with r 9.05(3).
17. For another thing, r 8.22 provides that if an originating application is amended pursuant to r 8.21 "with the effect that another person is substituted as a party to the proceeding, the proceeding is taken to have started for that person on the day the originating application is amended or as otherwise ordered by the Court". I doubt that the effect of the joinder here is to "substitute" a party (as to which, see, e.g., Environinvest Limited (receivers and managers appointed) (in liq) v The Former Partnership of Wesbster, White, Gridley, Nairn, Newman, Peters and Miller trading as HLB Mann Judd (Vic Partnership) (2012) 208 FCR 376; [2012] FCA 1307 at [31]), but the evident policy underpinning that rule is that proceedings by or against a substantively new party ought be taken to have commenced on the day the party is joined to the proceedings (again, see generally Cockerill). Whether or not the rule applies of its own force, therefore, for the reasons I have already given I would order that the applications by the third to seventh plaintiffs should be taken to have been filed on the date of my orders.

1. The principal substantive amendments to the originating process for which leave was sought were the inclusion of claims by each of the third to seventh plaintiffs to wind up, on the just and equitable ground, the eighth, ninth, thirteenth to sixteenth, and twenty-third to twenty-seventh defendants. Consistently with my reasons for allowing the joinder of those plaintiffs, it is appropriate to grant leave for the filing of an amended originating process.
2. The draft amended originating process annexed to the interlocutory application contained, however, a number of typographical and similar errors which ought to be corrected in the version that is filed.

1. The fundamental basis upon which the relevant plaintiffs submit that the eighth, ninth, thirteenth, fourteenth, fifteenth, sixteenth, and twenty-third to twenty-sixth defendants should be wound up was expressed as follows:

[C]ompanies controlled by Mr Godfrey which have been either vehicles for the creation and conduct of the various sub-schemes, or the recipients of substantial loans from the [treasury accounts], should be wound up on the basis that Mr Godfrey's behaviour gives rise to a justifiable lack of confidence in their past and future management, such that there is a risk to the public interest which warrants their liquidation and investigation of their affairs.

1. In particular, the plaintiffs put their case on the basis that the schemes have been operated in a manner inconsistent with the applicable disclosure documents, with the consequence that investors are likely to have suffered losses: investors have been exposed to risks to which they ought not to have been exposed, their funds have been deployed for unauthorised purposes, and significant sums have been transferred, without any apparent reasonable basis for doing so, to companies connected with Mr Godfrey. As a general proposition, it is submitted that the intermingling of investor funds from different sub-schemes has given rise to a complex problem which requires investigation. In circumstances where none of the companies that are sought to be wound up presently have a director, and where there is no indication that they may be returned to responsible management, it is thus said to be just and equitable that they be wound up.
2. The Australian Taxation Office appeared to support the application to wind up the thirteenth defendant, of which it is a creditor. ASIC, by letter dated 9 June 2025, indicated its support for the application generally. No person appeared to oppose the making of the winding up orders sought.

1. Section 465A of the Corporations Act requires that a person making an application to wind up a company take certain steps to provide notice of, and publicise, that fact. Section 467(3)(b), however, authorises the Court to dispense with the need to comply with those requirements.
2. During the hearing I raised a concern, which I did not understand to be disputed, that by reason of the plaintiffs' omnibus approach there had not been strict compliance with s 465A. That section obliges "a person who applies ... for a company to be wound up" to do various things. Here, it is the third to seventh plaintiffs who are applying for the relevant defendants to be wound up. But the steps taken in purported compliance with s 465A were taken by the first and second plaintiffs when they filed the original originating process. That is:

(a) The first plaintiffs caused a notice of application for winding up of the relevant defendants to be published on the ASIC website on 20 January 2025. The notice stated that the application to wind up all of the original defendants was commenced by the first plaintiffs. To that extent, while it notified the fact that an application to wind up the relevant defendants had been made, it did not notify the third to seventh plaintiffs' applications to wind up those companies.

(b) The first plaintiffs filed a "Form 519" for each company, which is the prescribed form required to be lodged with ASIC when a winding up application is made, with ASIC on 20 January 2025. Again, it may thus be observed that while a Form 519 notifying ASIC of the fact that an application to wind up the relevant defendants has been filed, no such form has been filed by the third to seventh plaintiffs in respect of the application that they are now making.

(c) The plaintiffs served copies of the original originating process and related documents on the registered offices of each of the defendants on 20 January 2025. Once more, what was served on the companies was not the application made by the third to seventh plaintiffs, but the original application made by the first and second plaintiffs.

1. Mr Godfrey was emailed copies of the original originating application on 17 January 2025. There was evidence that he received that email, but he did not reply and has never appeared in these proceedings.
2. The interlocutory application the subject of this judgment (together with the proposed amended originating process) was served on the registered offices of each defendant on either 22 or 27 May 2025.
3. Overall, I was satisfied that it was appropriate to dispense with the requirements of s 465A of the Corporations Act, or other procedural requirements, to the extent that there had been non-compliance. I was satisfied that the steps that had been taken were sufficient to meet the underlying purpose of the notice requirements in the circumstances of this case. That is to say, the steps taken by the first and second plaintiffs were sufficient to notify and publicise the fact of an application to wind up the relevant defendants to any person who might have an interest in learning of it. While the identity of the person making the application was not correctly disclosed, in the circumstances of this case I do not consider that that matters. Critically, at all times since 20 January 2025, the company records maintained by ASIC in relation to each relevant defendant have disclosed the fact of a pending winding up application in relation to each relevant defendant. Anyone having an interest in these applications would equally have had an interest in the application of the first and second plaintiffs. I did not consider that any real purpose would be served, or benefit obtained, by requiring the steps already taken to be repeated with no difference other than the name of the company applying for the winding up order.

1. Each of the new plaintiffs has standing to wind up one or more of the remaining defendants:

(a) The third plaintiff (The Mills Parkview Estate Investment Holdings Pty Ltd ACN 655 550 682) is a creditor of the twenty-seventh defendant (Capital Provider Nominees Pty Ltd ACN 654 507 221 (formerly known as ISG CP Nominees Pty Ltd), and thus has standing pursuant to s 462(2)(b). The third plaintiff (formerly the fourth defendant) was the investment company for the "Parkview" sub-scheme of the REEF. The money invested in that sub-scheme was used by the responsible entity to purchase redeemable preference shares in the third plaintiff, which then lent those funds to the twenty-seventh defendant (which was a capital provider company, and which in turn used them to subscribe for redeemable preference shares in the fifth defendant, which was a development company). It is that loan, in the amount of $1,001,083, which remains outstanding, that makes the third plaintiff a creditor of the twenty-seventh defendant.

(b) The fourth plaintiff (New Norfolk Commercial Precinct Investment Holdings Pty Ltd ACN 648 097 705) is either a creditor or a contributory of the ninth defendant (New Norfolk MPA Nominees Pty Ltd (Controllers Appointed) ACN 636 839 239), and thus has standing pursuant to s 462(2)(b) or (c). The fourth plaintiff (formerly the sixth defendant) was the investment company for the "Commercial" sub-scheme of the REEF. The money invested in that sub-scheme was used by the responsible entity to purchase redeemable preference shares in the fourth plaintiff, which then advanced those funds to the ninth defendant (which was the development company). It did so in circumstances that have not yet been revealed clearly, but which involved either the subscription for redeemable preference shares or the making of a loan. It is in that way that the fourth plaintiff is either a creditor or a contributory of the ninth defendant.

(c) The fifth plaintiff (The Mills Retirement Village Investment Holdings Pty Ltd ACN 650 887 237) is a creditor of the eighth defendant (The Mills Nominees Retirement Village Pty Ltd ACN 642 328 701), and thus has standing pursuant to s 462(b). The fifth plaintiff (formerly the seventh defendant) was the investment company for the "Mills Retirement" sub-scheme of the REEF (and the eighth defendant was the development company). The balance sheet of each company identifies the fifth plaintiff as a creditor of the eighth defendant in the amount of $429,708. The way in which that debt arose has not yet been determined, but given the common entries in the respective companies' accounts, it does not appear to be controversial. It is that debt which is relied upon to establish the fifth plaintiff as a creditor of the eighth defendant.

(d) The sixth plaintiff (The Mills Norfolk Views Investment Holdings Pty Ltd ACN 654 507 463) is a creditor of the twenty-seventh defendant (Capital Provider Nominees Pty Ltd ACN 654 507 221 (formerly known as ISG CP Nominees Pty Ltd), and thus has standing pursuant to s 462(2)(b). The sixth plaintiff (formerly the tenth defendant) was the investment company for the "Norfolk Views" sub-scheme of the REEF. The money invested in that sub-scheme was used by the responsible entity to purchase redeemable preference shares in the sixth plaintiff, which then lent those funds to the twenty-seventh defendant (which was a capital provider company, and which in turn used them to subscribe for redeemable preference shares in the eleventh defendant, which was a development company). It is that loan, which remains outstanding, that makes the sixth plaintiff a creditor of the twenty-seventh defendant. (It may be observed that, as set out in sub-paragraph (a) above, the third plaintiff also has standing to apply to wind up the twenty-seventh defendant, and, to that extent, the involvement of both companies as plaintiffs is superfluous.)

(e) The seventh plaintiff (A.C.N. 657 160 186 Pty Ltd ACN 657 160 186) is a creditor of:

(i) the thirteenth defendant (Noble Retirement Holdings Pty Ltd ACN 613 718 648), which was the investment company for the "Noble Retirement" sub-scheme of the REEF. While the money invested in that sub-scheme was used by the responsible entity to acquire redeemable preference shares in the thirteenth defendant, by the time these proceedings were commenced those shares had been redeemed (and thus the responsible entity was no longer a contributory to the thirteenth defendant). The seventh plaintiff (formerly the twenty-second defendant), the treasury company, however, made a loan or loans totalling $301,508 to the thirteenth defendant which remain outstanding, and is thus a creditor.

(ii) the fourteenth defendant (1202 Creek Road TDG Pty Ltd ACN 613 999 107), which was the development company for the "Noble Retirement" sub-scheme of the REEF. The seventh plaintiff, the treasury company, made a loan or loans to the fourteenth defendant totalling $10,050,754 which remain outstanding, and is thus a creditor.

(iii) the fifteenth defendant (Gateway Investment Holdings Pty Ltd ACN 635 643 186), which was the investment company for the "Gateway" sub-scheme under the REEF. While the money invested in that sub-scheme was used by the responsible entity to acquire redeemable preference shares in the fifteenth defendant, by the time these proceedings were commenced those shares had been redeemed (and thus the responsible entity was no longer a contributory to the fifteenth defendant). The seventh plaintiff, the treasury company, however, made a loan or loans totalling $913,275 to the fifteenth defendant which remain outstanding, and is thus a creditor.

(iv) the sixteenth defendant (Gateway Estate Nominees Pty Ltd (Controller Appointed) ACN 632 231 479), which was the development company for the "Gateway" sub-scheme under the REEF. The seventh plaintiff, the treasury company, made a loan or loans to the sixteenth defendant totalling $30,711,658 which remain outstanding, and is thus a creditor.

(v) the twenty-third defendant (A.C.N. 167 460 924 ACN 167 460 924 (formerly known as ISG Securities Pty Ltd)), the twenty-fourth defendant (A.C.N. 613 718 913 ACN 613 718 913 (formerly known as ISG Capital Pty Ltd)), the twenty-fifth defendant (HMS Partners Nominees Pty Ltd ACN 603 992 052), and the twenty-sixth defendant (ISG Investment Holdings Pty Ltd ACN 612 514 235). Each of these companies were associated with Mr Godfrey, and each of them had significant dealings with the seventh plaintiff as treasury company. Each of them owes substantial amounts to the seventh plaintiff, and are thus creditors.

1. The principles governing applications for winding up on the just and equitable ground were summarised by Gordon J in Australian Securities and Investments Commission v ActiveSuper Pty Ltd (No 2) [2013] FCA 234 at [19]- [20]:

The classes of conduct which justify the winding up of a company on the just and equitable ground are not closed, and each application will depend upon the circumstances of the particular case: Ebrahimi v Westbourne Galleries Ltd [1973] AC 360 at 374 and 376-379; Australian Securities and Investments Commission v Kingsley Brown Properties Pty Ltd [2005] VSC 506 at [95]- [97]; Nilant v RL & KW Nominees Pty Ltd [2007] WASC 105 at [117]. Nevertheless, it is possible to discern some guiding principles from the authorities.

It has long been established that a company may be wound up where there is 'a justifiable lack of confidence in the conduct and management of the company's affairs' and thus a risk to the public interest that warrants protection: Loch v John Blackwood Ltd [1924] UKPC 45; [1924] AC 783 at 788. In Australian Securities and Investments Commission v ABC Fund Managers [2001] VSC 383; (2001) 39 ACSR 443 at [119], Warren J (as her Honour then was) set out three 'general fundamental principles':

First, there needs to be a lack of confidence in the conduct and management of the affairs of the company ... Second, in these types of circumstances it needs to be demonstrated that there is a risk to the public interest that warrants protection. Third, there is a reluctance on the part of the courts to wind up a solvent company.

1. In relation to the first of those principles, Gordon J observed that (at [21]):

... a lack of confidence may arise where, 'after examining the entire conduct of the affairs of the company' the Court cannot have confidence in 'the propensity of the controllers to comply with obligations, including the keeping of books, records and documents, and looking after the affairs of the company': Galanopoulos v Moustafa [2010] VSC 380 at [32]; see also Australian Securities Commission v AS Nominees Limited [1995] FCA 1663; (1995) 62 FCR 504 at 532-3; ABC Fund Managers at [117]-[118]; Australian Securities and Investments Commission v International Unity Insurance Pty Ltd [2004] FCA 1059; (2004) 22 ACLC 1416 at [135]- [139].

1. In relation to the second principle, her Honour said (at [23]):

... a risk to the public interest may take several forms. For example, a winding up order may be necessary to ensure investor protection or where a company has not carried on its business candidly and in a straightforward manner with the public: International Unity Insurance at [138]; see also Australian Securities and Investments Commission v Finchley Central Funds Management Ltd [2009] FCA 1110 at [3]. Alternatively, it might be justified in order to prevent and condemn repeated breaches of the law: Kingsley Brown Properties at [96]; see also AS Nominees at 527; Australian Securities and Investments Commission v Chase Capital Management Pty Ltd [2001] WASC 27; (2001) 36 ACSR 778 at 793.

1. In relation to the third, her Honour said (at [24]):

... it has been said that 'a stronger case might be required where the company was prosperous, or at least solvent': Kingsley Brown Properties at [96]. Solvency, however, is not a bar to the appointment of a liquidator on the just and equitable ground, particularly where there have been serious and ongoing breaches of the Act: ABC Fund Managers at [124]-[130].

1. Section 1 of the PDS for the PAF scheme stated that investments in the fund would be "arranged into unit classes which will represent specific capital pools. Each of these will invest into a single or a number of direct investment opportunities". As such, these "separate classes provide a degree of protection and separation from other investment opportunities to reduce risks". In particular, it was stated (at [5.1]):

The Fund operates with a multi-class structure which enables investors to be offered and then select individual investment opportunities that align with their personal investment criteria. Once an opportunity is selected the investor's funds are combined with other 'like-minded' investors and invested into that opportunity. If an investor does not select that opportunity they are not exposed to that investment.

1. In the version of the PDS with an effective date of 2 August 2022, that paragraph was supplemented with an additional final sentence:

There does remain a low risk that your selected investment opportunities may be impacted by other investment opportunities to the extent that they impact the Fund's overall performance (as further detailed in Section 6 of this PDS).

1. The potential mentioned in that sentence did not, however, undermine the general description of segregated investments. The relevant part of Section 6, entitled "Fund Structure Risk" explained:

Though each asset is allocated to a specific investment opportunity or Asset Manager capital pool, and the Fund structure is intended to enable investors to participate only in the benefits, returns and risks of the asset corresponding to their investment opportunity, as the Fund is a single entity there remains a risk that your investment in an investment opportunity may be impacted by other investment opportunities and the assets corresponding to those investment opportunities.

For example, where the Fund incurs general expenses, such as audit costs, which are allocated across various investment opportunities and a particular investment opportunity does not generate sufficient income to cover these expenses, it may impact the distributions able to be paid by the Fund on another investment opportunity which has generated net income.

1. Section 5.2 of the PDS described the "Fund Structure" in the following terms:

A typical investment opportunity involves the following:

• investors in the investment opportunity pooling their money with other investors to create an investment amount;

• ISG [the responsible entity] as manager of the Fund will then invest the investment amount in preference shares, ordinary shares or secured / unsecured notes as issued by the investment entity;

• the investment entity may or may not be controlled by ISG.

The Fund will enter into an agreement with the Investment Entity to provide funds (debt or equity), purchase shares or make other arrangements to the benefit of the Fund and its members. Funds may be secured by mortgage, General Securities Agreement (GSA) or other means deemed necessary by the Fund, however security is not a prerequisite for an investment to be made.

Generally, a representative of the Fund will sit on the board of the entity where an investment has been made with a requirement being a minimum monthly update to be delivered by each invested entity. The specifics of this will be disclosed in the SPDS of each investment opportunity. Where feasible and necessary the appropriate insurances will be obtained to mitigate any unforeseen risks.

The investment structure will be unique to each investment opportunity. Specific details of the investment structure will be provided in each SPDS.

1. The individual Supplementary PDSs for each of the PAF sub-schemes identified, amongst other matters, the particular investment opportunities that were sought to be pursued with investor funds, the amount of capital sought to be raised, and the intended term of the investment.
2. Overall, the responsible entity's investor register for the PAF scheme records a total amount of nearly $74 million invested in the following sub-schemes:

(a) "NIVA" ($44,512,914)

(b) "NIVA Plus" ($24,131,525)

(c) "SMP Class B" ($3,738,045)

(d) "SMP Class C" ($1,280,841)

(e) "SMP Class D" ($300,375)

(f) "SCC" ($490)

1. The REEF scheme PDS contained virtually identical provisions to those quoted above from the PAF scheme PDS.
2. The REEF PDS also included statements that the "Fund does not intend to borrow", and that any intended borrowing would be disclosed in the Supplementary PDS for a particular sub-scheme (at [5.4]). It also stated that distributions would only be paid from cash from operations (excluding borrowings).
3. The individual Supplementary PDSs for each of the REEF sub-schemes identified, amongst other matters, a particular property that was proposed to be developed with investor funds, the amount of capital sought to be raised, and the intended term of the investment.
4. Overall, the responsible entity's investor register for the REEF scheme records a total amount of nearly $71.5 million invested in the following sub-schemes:

(a) "East Estate" ($6,873,125)

(b) "Dakabin" ($5,304,810)

(c) "Lindak" ($4,357,225)

(d) "Mills Commercial" ($12,914,979)

(e) "Norfolk Views" ($19,768,004)

(f) "Parkview" ($1,001,082)

(g) "Mills Retirement" ($21,235,932).

1. The first plaintiffs' investigations to date have revealed that, contrary to the representations made in the various disclosure documents about investments in different classes being separate and generally quarantined from one another, there was extensive pooling of funds. In particular, the first plaintiffs identified two central "treasury" accounts through which the operations of the schemes generally were funded (one was an account maintained by the responsible entity, the other an account maintained by the treasury company).
2. In relation to the account maintained by the responsible entity, the first plaintiffs have found a document amongst the responsible entity's books and records, entitled "Explanatory Note on the ISG Custody Account and its operation and disclosure". That document includes statements that:

(a) The bank account is "technically in the name of" the responsible entity, but:

it is operated as a trust-type account. It is not shown on the bal (sic) sheet of [the company]. Rather the transactions are recorded on a separate xero file called "ISG Custody Account". The only think (sic) in this xero file is the transaction on the custody account.

(b) It is said that the "balances are recorded as 'bank accounts' in the entity xero files, but they are more correctly characterised as inter-entity loan accounts".

1. Bank statements have been obtained in relation to this account, and work is ongoing to attempt to trace the movement of funds.
2. In relation to the account maintained by the treasury company, the first plaintiffs have identified:

(a) significant intercompany loans between the treasury company and entities relating to every investment class in the PAF and REEF schemes;

(b) significant intercompany loans between the treasury company and other entities owned or controlled by Mr Godfrey (including the twenty-third to twenty-sixth defendants). Overall, unpaid and unsecured loans to companies associated with Mr Godfrey total more than $34 million. To take only a couple of examples, since February 2022 the treasury company has:

(i) made net payments of $10,089,088.74 to the twenty-fifth defendant (of which Mr Godfrey was the sole shareholder and sole director). The first plaintiffs have not identified any reasonable basis for these loans. Mr Godfrey has informed the first plaintiffs that the twenty-fifth defendant was a "consulting company".

(ii) made total payments of $13,001,360.87 to Omega Investment Holdings Pty Ltd (subject to DOCA) (of which Mr Godfrey was the sole shareholder and sole director). The treasury company's accounts show a net loan balance of $11,164,120.22 owing to the treasury company. Omega, however, is now subject to a Deed of Company Arrangement, which was proposed by Mr Godfrey, and estimates a return to creditors of no more than 14.84c in the dollar. Mr Godfrey has informed the first plaintiffs that Omega was a "cost centre to manage suppliers across the ISG Group and other related entities".

1. The accounting ledgers tendered in evidence demonstrate that loans to and from the treasury company were extensive.
2. The first plaintiffs have also identified that funds from the two accounts just described, ultimately likely to have been sourced from investors in all sub-schemes, were used to redeem an earlier class of investment in the REEF scheme (known as "Gateway"). In particular:

(a) On 7 June 2021, investments totalling $19,927,151.28 in the Gateway sub-scheme were redeemed.

(b) The redemption occurred by way of:

(i) payment of $6,028,804.03 as a cash distribution to investors in the sub-scheme; and

(ii) reinvestment of $13,898,347.25 into other sub-schemes.

(c) The redemption was funded by way of intercompany loans, rather than out of returns from the Gateway sub-scheme itself.

1. Overall, the first plaintiffs' investigations have revealed, and I accept, that it appears likely that:

(a) investor moneys were regularly channelled through either investment and/or development companies relating to the particular sub-scheme in which an investor subscribed for class units, before significant loans (often comprising the majority of the funds invested) were made to either or both of the responsible entity or treasury company (thus exposing investors to the performance of sub-schemes other than that in which they invested);

(b) investor moneys, instead of being used to fund the investment opportunity identified by the relevant PDS, were used to redeem the "Gateway" sub-scheme investment;

(c) significant payments of investor funds were made to third parties, including companies owned or controlled by Mr Godfrey, without any apparent reasonable basis for the payments.

1. None of these uses of investor funds were disclosed to investors in the disclosure documents for each relevant sub-scheme, and were inconsistent with the identified uses of funds there disclosed. The result appears to be that investors' money has been misapplied, and investors are likely to have suffered substantial losses.

1. I am satisfied that the eighth, ninth, thirteenth, fourteenth, fifteenth, sixteenth, and twenty-third to twenty-seventh defendants should be wound up.
2. The evidence before me, described above, revealed extensive conduct giving rise to a justifiable lack of confidence in the conduct management of the companies.
3. The schemes were operated materially and prejudicially contrary to the disclosure documents pursuant to which investors made their investments. That mode of operation appears to have been extensive and ongoing. Departures from the parameters laid down in the disclosure documents were not disclosed to investors. There were conflicted dealings between companies owned and controlled by Mr Godfrey. The widespread unauthorised use of investor funds is likely to have resulted in significant losses for investors. Any attempt to untangle the movement of funds, and to identify the entitlements of individual investors, will require significant work across multiple group companies.
4. Those circumstances also demonstrate the existence of a risk to the public interest that warrants protection.
5. Significantly, each of the relevant defendant companies is now without any officers or employees. None of those companies have had a director since Mr Godfrey was made bankrupt on 3 March 2025, and thus became automatically disqualified pursuant to s 206B(3) of the Corporations Act. Company searches reveal that no replacement director has been appointed.
6. Absent a winding up order there is thus no real prospect that the conduct of the companies' affairs will be placed on a sound footing, the effects of past mismanagement addressed, and the legitimate interests of investors, creditors and the public protected. A winding up order is thus the surest means (if not the only means) by which those interests may be protected.
7. Insofar as the solvency of the companies is concerned, the first plaintiffs have not been able to form a definitive view, but the evidence demonstrated the existence of a real question as to solvency. Certainly, no distributions to investors have been made since October 2022. Even if the companies were solvent, however, I would not regard that as a reason, in the particular circumstances of this case, described above, not to make the orders sought.

1. The third to seventh plaintiffs nominated the first plaintiffs to be appointed as liquidators of the companies they sought to wind up. That is appropriate, especially in circumstances where the dealings between the various companies already wound up by Markovic J and myself, and the additional companies that I have now wound up, were all highly intertwined, and the investigations required will necessarily encompass all of those companies. Furthermore, ASIC made it known that it supported the appointment of the first plaintiffs as liquidators.

1. I turn now to deal with the second plaintiff's application for leave, pursuant to s 237 of the Corporations Act, to bring proceedings on behalf of the twenty-eighth defendant (NIVA Investment Holdings Pty Ltd (subject to DOCA) ACN 644 343 279) to wind up the seventeenth defendant (NIVA Group Pty Ltd ACN 640 026 222).
2. The twenty-eighth defendant was the investment company for the "NIVA" and "NIVA Plus" sub-schemes under the PAF. Before his bankruptcy, Mr Godfrey was its only director. It presently has no directors. The company is, however, subject to a deed of company administration, pursuant to which control will ultimately revert to Mr Godfrey.
3. The seventeenth defendant was the investment vehicle for the "NIVA" and "NIVA Plus" sub-schemes under the PAF. The twenty-eighth defendant acquired redeemable preference shares in the seventeenth defendant, and is thus a "contributory" with standing to apply to wind it up pursuant to s 462(2)(c) of the Corporations Act.
4. It is in circumstances where the twenty-eighth defendant has shown no interest in applying to wind up the seventeenth defendant, that the second plaintiff seeks leave to bring proceedings on its behalf.
5. Section 237(2) provides that the Court must grant leave if it is satisfied of five matters:

(a) that it is probable that the company will not itself bring the proceedings;

(b) that the applicant is acting in good faith;

(c) that it is in the best interests of the company that the applicant be granted leave;

(d) that there is a serious question to be tried; and

(e) that the applicant has given written notice to the company of the intention to apply for leave and the reasons for applying (or that it is appropriate to grant leave absent such notice).

1. The first of those criteria is plainly satisfied. The twenty-eighth defendant no longer has a director, and Mr Godfrey, who proposed the deed of company administration to which it is presently subject, has no interest in causing the company to seek the winding up of the seventeenth defendant.
2. I am also satisfied that the second plaintiff is acting in good faith.
3. As to whether it is in the best interest of the company that the applicant be granted leave, I consider that it is in the interests of the twenty-eighth defendant to facilitate the proper investigation and pursuit of any claims in respect of the funds it invested in the seventeenth defendant. Particularly given the history of these proceedings to date, it is highly unlikely that an application to wind up the seventeenth defendant will be costly or time-consuming. The potential upside to the twenty-eighth defendant is thus significant, with almost no downside.
4. The reasons I have given above in relation to the application to wind up the other defendants suffice to demonstrate that there is a serious question to be tried in relation to the winding up of the seventeenth defendant.
5. Finally, the evidence discloses that the twenty-eight defendant was provided with the required notice of the application.
6. It follows that, being satisfied of the five matters specified in s 237(2), I must grant the leave requested.

Whether the twenty-eighth defendant's application should be heard immediately

1. The second plaintiff submitted that, if leave were granted to it pursuant to s 237, I should proceed immediately to hear and determine the twenty-eighth defendant's application to wind up the seventeenth defendant.
2. The second plaintiff identified two cases in which, it submitted, courts had proceeded immediately to hear and determine proceedings in respect of which leave had been given pursuant to s 237: Re Wan Ze Property Development (Aust) Pty Ltd [2012] NSWSC 722 and Re Sunnya Pty Ltd [2023] NSWSC 225. In each of those cases, however, the company on whose behalf proceedings were brought had each been named as plaintiffs, and their claims articulated in a pleading or equivalent document. The relief pursuant to s 237 was thus sought nunc pro tunc in each case.
3. For the reasons I have already given, I consider that to be a materially different situation to the present, where the twenty-eighth defendant is a defendant, and there is no process or pleading that purports to articulate any claim for relief by it. I do not consider it to be a mere formality to require that a person seeking to wind up a company do so by way of formal court process. I thus did not regard it as appropriate to proceed to hear and determine an informal application from a defendant to wind up another company.

1. I have already mentioned what I have called the "shortcut" approach proposed by the plaintiffs, whereby upon a defendant being wound up, the Court would move immediately to hear an application made by the first plaintiffs on behalf of the recently wound up defendant to wind up another defendant in respect of which it had standing. In that way, the plaintiffs asked me to wind up the fifth, eleventh, twelfth, and eighteenth defendants. For the reasons I have already given, I do not consider that to be an available or appropriate method of proceeding.
2. It is not possible to circumvent the standing requirements by having the first plaintiffs, once they are appointed as liquidators of a defendant, apply, in reliance on the standing of that defendant, to wind up another defendant. Where a company is wound up the property of the company does not vest in the liquidator. In proceedings brought by a company in liquidation the company itself is the plaintiff: the Corporations Act confers power on a liquidator to bring or defend any legal proceeding in the name and on behalf of the company: s 477(2)(a).
3. For the reasons I have already given, therefore, I declined to proceed to determine any application to wind up the remaining defendants.

1. In circumstances where applications to wind up the fifth, eleventh, twelfth, and seventeenth defendants by the present twenty-fifth, twenty-seventh, and twenty-eighth defendants have been foreshadowed, I ordered that any interlocutory application for leave to join those latter defendants as plaintiffs, and to file any further amended originating process to include a claim to wind up the former defendants, be filed and served by 20 June 2025.
2. I will hear any such application on 27 June 2025, with the intention that if the leave requested is granted, and subject to considering any contrary submission that may be made by any interested party, I will proceed to hear and determine the winding up applications immediately.
3. The only further winding up application that has been foreshadowed is that concerning the eighteenth defendant. The company that would have standing to wind up that company is the seventeenth defendant. The programming of any such application should await the outcome of any application to wind up the seventeenth defendant.

I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Owens.

THE MILLS PARKVIEW ESTATE INVESTMENT HOLDINGS PTY LTD 655 550 682

THE MILLS NOMINEES PARKVIEW ESTATE PTY LTD ACN 655 549 607

NEW NORFOLK COMMERCIAL PRECINCT INVESTMENT HOLDINGS PTY LTD ACN 648 097 705

THE MILLS RETIREMENT VILLAGE INVESTMENT HOLDINGS PTY LTD ACN 650 887 237

THE MILLS NOMINEES RETIREMENT VILLAGE PTY LTD ACN 642 328 701

NEW NORFOLK MPA NOMINEES PTY LTD (CONTROLLERS APPOINTED) ACN 636 839 239

THE MILLS NORFOLK VIEWS INVESTMENT HOLDINGS PTY LTD ACN 654 507 463

THE MILLS NOMINEES NORFOLK VIEWS PTY LTD ACN 654 522 219

NOBLE RETIREMENT HOLDINGS PTY LTD ACN 613 718 648

GATEWAY INVESTMENT HOLDINGS PTY LTD ACN 635 643 186

GATEWAY ESTATE NOMINEES PTY LTD (CONTROLLERS APPOINTED) ACN 632 231 479

SUCCESSION MANAGEMENT PARTNERS LIMITED ACN 626 672 259

CAPITAL PROVIDER NOMINEES PTY LTD ACN 654 507 221

NIVA INVESTMENT HOLDINGS PTY LTD (SUBJECT TO DOCA) ACN 644 343 279