DAVID MARK HODGSON AS JOINT AND SEVERAL RECEIVER AND MANAGER OF BC WEST PERTH PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) -v- THE REGISTRAR OF TITLES FOR WESTERN AUSTRALIA [2026] WASC 71 (11 March 2026)

1. I have also had the benefit of a written outline of submissions filed by the plaintiffs, as well as oral submissions from counsel who appeared before me this morning.

1. Kaplink was a company incorporated in the British Virgin Islands with company number 2021722.[1]
2. On 16 March 2020, BC West and Kaplink entered a subscription agreement (Subscription Agreement) whereby BC West borrowed $6,000,000 from Kaplink.[2] On or around May 2020, BC West granted a mortgage to Kaplink over the Property to secure its obligations under the Subscription Agreement (Mortgage).[3]
3. On 5 March 2022, BC West defaulted on its obligations under the Subscription Agreement by failing to repay Kaplink the principal sum on that date.[4]
4. On 24 July 2023, Kaplink issued a default notice to BC West.[5] When the default was not remedied, the Mortgage became enforceable, and Kaplink's power to appoint receivers over the Property was enlivened.
5. On 6 December 2023, Kaplink executed a deed of appointment (Deed of Appointment) and the plaintiffs were appointed as joint and several receivers and managers of the Property.[6]
6. Following their appointment, between 22 April 2024 and 12 August 2025, the plaintiffs, with the support of Colliers, undertook a marketing campaign for the sale of the Property. Ultimately, four offers were received.[7]
7. On 20 August 2025, the plaintiffs, in their capacity as receivers and managers of BC West, entered into a contract with DG Corp Acquisition No 2502 Pty Ltd as trustee for the DG Corp Acquisition No 2502 Unit Trust (DG Corp) for the sale of the Property for $2,200,000 (Sale Contract).[8]
8. The Sale Contract initially provided for a settlement date of 90 days.[9] This has subsequently been extended to 13 May 2026.[10]
9. On 17 November 2025, the plaintiffs became aware that their appointor, Kaplink, had been deregistered on 2 May 2024 as a result of non-payment of annual fees.[11] The plaintiffs understand this occurred as a result of an administrative error.[12]
10. On 19 December 2025, Derrick Craig Vickers (Liquidator) was appointed as liquidator of BC West by the Federal Court on the application of the Deputy Commissioner of Taxation.[13]

Should the directions sought by the plaintiffs be made?

1. Section 424 of the Act enables a controller of a company to apply to the court for directions 'in relation to any matter arising in connection with the performance or exercise of any of the controller's functions and powers as controller'.
2. Pursuant to s 424(2) of the Act, a privately appointed receiver and manager of property of a company is a 'controller'. On this basis, I am satisfied the plaintiffs have standing under s 424(1) of the Act to bring this application.
3. The purpose of s 424 of the Act was outlined by Feutrill J in White, in the matter of Twinza Oil Limited in the following terms:[14]

The purpose of s 424 is to provide a procedure for a controller to obtain guidance from the Court in the conduct of the controllership and, thereby, obtain protection against a claim for breach of duty or an allegation of improper or unreasonable action. Subject to the controller making full and fair disclosure of the material facts, the order sanctions a proposed course of conduct. The power to make directions is intended to facilitate the work of a controller and s 424 should be interpreted liberally.

1. In describing this purpose, his Honour adopted the principles summarised by Colvin J in Preston, in the matter of Sandalwood Properties Ltd.[15] Colvin J observed in that case that s 424 is similar to applications by trustees for judicial advice and that case law that considers these applications can be considered by a court when determining an application under s 424 of the Act. However, care should be taken in applying these decisions for two reasons. First, the language in s 424 of the Act is different to the relevant Trustees Acts and must be given effect according to its terms. Second, the power of the court granted under s 424 should not be considered to be subject to any implied limitations that are not found in the express words of the section.
2. For the following reasons, I am satisfied that a direction should be given that the deregistration of Kaplink does not affect the appointment of the plaintiffs as receivers and managers of the Property.
3. First, Kaplink's deregistration does not extinguish BC West's obligations under the Mortgage. These obligations continue to be owed to Kaplink's successor in title.
4. Second, under the terms of the Deed of Appointment, the plaintiffs' appointment as receivers and managers does not terminate unless terminated in accordance with cl 2.3 of the Deed of Appointment. The plaintiffs were appointed as receivers and managers to realise the Property to satisfy the secured debt. I accept that their appointment continues until they have either discharged their obligations, or the Deed of Appointment is terminated. At this stage, neither has occurred.
5. I also accept that the direction sought by the plaintiffs does not concern a commercial matter, but is in relation to an issue of the plaintiffs' power.
6. I am also satisfied, for the following reasons, that the plaintiffs are justified in proceeding on the basis that their appointment remains valid, notwithstanding the liquidation of BC West.
7. First, I accept that, as a matter of law, on the appointment of a liquidator, a receiver continues to have limited agency to act on behalf of the company to the extent that this is compatible with the statutory scheme for the winding up of the company.[16]
8. Second, on the express terms of the Deed of Appointment, 'the plaintiffs were appointed as agents of BC West to the fullest extent permitted by law' and, otherwise, 'were the agents of the secured party' (cl 1.4). Clauses 4.5(2) and 4.5(23) of the Deed of Appointment conferred power on the receivers to do anything in respect of the Property that BC West could do. This includes to sell or concur in selling the Property, and to enter into and execute documents or agreements on behalf of the plaintiffs or BC West for any of the purposes of the Mortgage. These powers are not impacted by the subsequent appointment of the Liquidator.
9. Third, the orders sought by the plaintiffs do not confer power on the plaintiffs that they do not otherwise have, nor are they inconsistent with the statutory winding up scheme.
10. Fourth, and importantly, the Liquidator has been served with these proceedings, and has not sought to be heard on the application but has simply informed the plaintiffs that he will abide the decision of the court.

1. In their minute of proposed orders, the plaintiffs seek ancillary orders for the plaintiffs' costs of the application to be paid out of the receivership on an indemnity basis. I consider this to be the appropriate costs order and will make this order.
2. On the evidence before me, it does not appear that creditors will suffer any prejudice from the orders that are sought. Notwithstanding this, the plaintiffs have proposed that interested parties have liberty to apply within 21 days to modify or discharge these orders. In my view, this order appropriately protects the interests of creditors.
3. For these reasons, I consider it is appropriate to make orders in terms of the minute of proposed orders filed on 17 February 2026.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Affidavit of David Mark Hodgson filed 17 February 2026 [9] - [10].

[2] Affidavit of David Mark Hodgson filed 17 February 2026 [18].

[3] Affidavit of David Mark Hodgson filed 17 February 2026 [16] - [18].

[4] Affidavit of David Mark Hodgson filed 17 February 2026 [20] - [21].

[5] Affidavit of David Mark Hodgson filed 17 February 2026 [21].

[6] Affidavit of David Mark Hodgson filed 17 February 2026, 'DMH2'.

[7] Affidavit of David Mark Hodgson filed 17 February 2026 [24] - [29].

[8] Affidavit of David Mark Hodgson filed 17 February 2026 [31] - [31].

[9] Affidavit of David Mark Hodgson filed 17 February 2026 [34].

[10] Affidavit of David Mark Hodgson filed 17 February 2026 [58].

[11] Affidavit of David Mark Hodgson filed 17 February 2026, 'DMH24'.

[12] Affidavit of David Mark Hodgson filed 17 February 2026 [54].

[13] Affidavit of David Mark Hodgson filed 17 February 2026 [55] - [56].

[14] White, in the matter of Twinza Oil Limited [2025] FCA 1054 [42].

[15] Preston, in the matter of Sandalwood Properties Ltd [2018] FCA 547.

[16] See for example Graeme Webb Investments Pty Ltd v St George Partnership Banking Ltd [2001] NSWCA 93; (2001) 38 ACSR 282 [57].