plaintiff. Orders made: (1) Leave granted to join defendants in Schedules B and C to the Originating Process pursuant to r 6.19 UCPR; (2) Proceedings in Schedules B and C transferred to the Supreme Court...
Key principles
Where multiple proceedings in lower courts raise a common question (here, the insolvency of the company in the six months before external administration), the Court may grant...
The Supreme Court may, under s 140(1) Civil Procedure Act 2005 (NSW), transfer proceedings from the Local Court and District Court to the Supreme Court where transfer will permit...
A separate question as to solvency may be ordered under r 28.2 UCPR to be determined for the joined proceedings and transferred proceedings, and evidence in one proceeding may be...
Discretion as to costs of the transfer and joinder application should be exercised with regard to the parties' conduct and the ultimate outcome of the substantive proceedings;...
Issues before the court
Whether leave to join multiple defendants under r 6.19 UCPR should be granted for voidable transaction claims raising a common solvency issue.
Plain English Summary
The liquidator of two related companies had started multiple proceedings in Local and District Courts to recover payments as voidable transactions. Defendants in those proceedings each disputed whether the companies were insolvent in the six months before external administration, raising the same central issue in many courts. The Supreme Court (Black J) granted the liquidator leave to join the various defendants into a single proceeding under UCPR r 6.19, transferred the related lower-court proceedings to the Supreme Court under s 140(1) of the Civil Procedure Act, and ordered a separate question to determine whether the companies were insolvent in the relevant six month period. The Court ordered that evidence on that question be common across the proceedings, reserved costs, and listed the matters for further directions. The Court's reasoning emphasised efficiency, avoidance of duplicated litigation and inconsistent findings, and case management to mitigate any prejudice to individual defendants (The parties' positions [4], Orders [12.1]–[12.5]).
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Whether proceedings in the Local Court and District Court should be transferred to the Supreme Court under s 140(1) Civil Procedure Act 2005 (NSW).
Whether the Court should order a separate question as to solvency and hear evidence in transferred and joined proceedings together.
How costs of the joinder/transfer application and the lower-court proceedings should be dealt with.
Cited legislation
3 cited instruments linked from this judgment.
Deep Dive
1,838 words · generated 12/09/2026
What happened
The liquidator of two related companies, MK Floors NSW Pty Ltd (in liq) and MK Floors Qld Pty Ltd (in liq), filed an Originating Process on 3 April 2020 seeking leave to join multiple defendants to a single voidable transaction proceeding under Uniform Civil Procedure Rules (UCPR) r 6.19, and alternatively sought transfer of a series of related proceedings from the Local Court and District Court to the Supreme Court under s 140(1) of the Civil Procedure Act 2005 (NSW) (Nature of the application [1]; Affidavit evidence [1]). The liquidator relied on claims under Part 5.7B of the Corporations Act 2001 (Cth), particularly s 588FF(1)(a), alleging recovery of amounts paid to defendants while the companies were insolvent in the six months before administration (The parties' positions [2]).
Initially the liquidator had commenced multiple separate proceedings in lower courts promptly before limitation periods expired because it was not then clear that solvency would be contested (Affidavit evidence [1]). By March 2020, however, each defendant had put solvency in issue, creating several proceedings all raising the same question as to whether the companies were insolvent in the relevant six-month period (Affidavit evidence [1]). Against that factual background, the liquidator sought a single 'mothership' proceeding to determine solvency once, and submitted that other proceedings should be transferred to the Supreme Court and coordinated with the mothership proceeding (The parties' positions [2]–[4]).
At the hearing on 16 June 2020, Black J exercised his discretion and made the orders sought in modified form: leave to join the defendants in Schedules B and C to the Originating Process under r 6.19; transfer of the proceedings identified in Schedules B and C to the Supreme Court under s 140(1); an order under r 28.2 UCPR that a separate question be determined as to whether the companies were insolvent in the six months prior to external administration; reservation of costs of the lower-court proceedings and of the application; an order that the separate solvency question be heard together across the proceedings with evidence in one being evidence in the others; and a listing for further directions on 29 June 2020 (Orders [12.1]–[12.6]).
Why the court decided this way
The decision rests on core case-management principles: where multiple proceedings raise a common question, it is generally preferable to determine that question once to avoid duplication, inconsistent findings and inefficient use of court resources. Black J summarised that proposition by reference to his earlier decision in Re RCG CBD Pty Ltd (in liq) [2016] NSWSC 1489, noting: "The most obvious reason for that course is the likelihood that the issue of solvency of the company will be a common issue in such claims, and that it is preferable that that is determined only once, as between the several defendants, and not in separate proceedings running the risk of duplicated costs and inconsistent findings" (The parties' positions [4], quoting Re RCG CBD [7]). That reasoning underpinned the grant of leave to join under r 6.19.
The Court also considered statutory mechanics for transfer. The liquidator relied on s 140(1) of the Civil Procedure Act 2005 (NSW) which permits the Supreme Court to transfer proceedings from the Local and District Courts. Black J accepted that s 140(1) was the appropriate vehicle here, particularly because s 1337K of the Corporations Act (which deals with transfer of proceedings in lower courts) contemplates an order made by the transferor court rather than the transferee court, and so did not readily apply in the present circumstances (The parties' positions [3]).
On the risk of prejudice to individual defendants from joinder, the Court recognised the concern but observed that such disadvantage can be mitigated by case management, including determining the common solvency issue first and then hearing defendant-specific defences in separate hearings (The parties' positions [4.2], [6]). That management approach informed the order for a separate question under r 28.2 and for evidence to be common across proceedings for that question (Orders [12.3], [12.5]).
Finally, on costs the Court balanced shifting positions and the uncertain outcome of the substantive proceedings and reserved costs of the lower-court proceedings and of the application, explaining that final costs orders will likely depend on the outcome of the substantive litigation (The parties' positions [7]–[10]).
Before and after state of the law
Before this judgment: The Court's approach is consistent with an established practice of treating a single proceeding as the vehicle for determining common solvency questions in multiple voidable transaction claims, sometimes called a 'mothership' proceeding. Black J cited Dean-Willcocks v Air Transit International Pty Ltd [2002] NSWSC 525 as an example of that structure and his earlier summary in Re RCG CBD Pty Ltd [2016] NSWSC 1489 as a statement of the circumstances in which r 6.19 joinder is appropriate (The parties' positions [4]).
After this judgment: The decision reaffirms and applies that well-established case-management approach in the particular facts where multiple lower-court proceedings had been commenced quickly and where defendants later contested solvency. It also clarifies that s 140(1) Civil Procedure Act is an appropriate statutory basis for the Supreme Court to bring lower-court proceedings to the Supreme Court for coordinated determination of common issues, and it illustrates application of r 28.2 to order a separate question on solvency with common evidence across proceedings (The parties' positions [3], Orders [12.2]–[12.5]).
The decision does not change legal doctrine about the substantive elements of voidable transaction claims under Pt 5.7B Corporations Act, but it provides a procedural template for handling multiplicity of proceedings where solvency is a common contested issue.
Key passages with plain-English translation
Passage: "The most obvious reason for that course is the likelihood that the issue of solvency ... should be determined only once" (The parties' positions [4]).
Plain-English: If many lawsuits hinge on whether the company was insolvent during the same period, it makes sense to decide that question in one place so parties are not litigating the identical point multiple times.
Passage: "The application for transfer ... was brought under s 140(1) ... which provides that the Court may ... transfer proceedings before the District Court or the Local Court to this Court" (The parties' positions [3]).
Plain-English: The Supreme Court has power to pull cases up from lower courts when it will make the litigation more efficient and fair, and that power was used here.
Passage: "That disadvantage can be mitigated by case management ... determining the common issue of solvency ... before potentially deciding the remaining issues ... in separate hearings for each defendant" (The parties' positions [4.2]).
Plain-English: If a defendant would be prejudiced by being kept in a large joined case, the Court can first determine the shared solvency question and then hear individual defences separately.
Passage: "I take that view because each party has had a degree of success ... each party has moved somewhat from its opening position" (The parties' positions [9]).
Plain-English: Because everyone changed positions during the hearing and nobody won everything, the judge thought it fair to reserve costs rather than make a costs order now.
Passage: Orders (final): leave to join defendants under r 6.19; transfer under s 140(1); separate question on solvency; costs reserved; evidence common (Orders [12.1]–[12.5]).
Plain-English: The judge joined the defendants into one main case, moved the other cases into the Supreme Court, ordered the solvency issue be decided as a separate common issue with shared evidence across the cases, and put off decisions about who pays costs.
What fact patterns trigger this precedent
This decision is directly engaged where:
A liquidator commences multiple proceedings (in Local Court, District Court or elsewhere) asserting voidable transaction claims under Pt 5.7B, and those proceedings arise out of the same company's insolvency at the same relevant time period (Affidavit evidence [1]; The parties' positions [1]–[2]).
Defendants in separate proceedings dispute the company's solvency and thus place the same question in issue in multiple fora, risking inconsistent determinations and duplicated evidence (Affidavit evidence [1]; The parties' positions [1]–[2]).
The liquidator seeks efficiency by (a) joining multiple defendants into a single originating proceeding under UCPR r 6.19, and (b) transferring other proceedings to the Supreme Court under s 140(1) to coordinate determinations (Nature of the application [1]; The parties' positions [2]–[4]).
There is a realistic prospect of overlapping factual evidence because the companies belong to the same group or transactions are similar (The parties' positions [4.3]).
Where those circumstances arise, this judgment supports using joinder, transfer and a separate-question procedure to determine solvency once and manage defendant-specific defences thereafter.
How later courts have treated it
This judgment itself refers to prior authorities that apply the same approach (Dean-Willcocks; Re RCG CBD; Re Bias Boating) and applies those authorities to the present facts (The parties' positions [4]). The decision endorses the 'mothership' structure as an established procedural device and illustrates practical case management steps (separate question, coordinated evidence, reservation of costs) that later courts may replicate where similar multiplicity of proceedings exists.
Because this is a Supreme Court first-instance judgment by Black J applying his prior reasoning and citing other NSW Supreme Court authorities, it functions as persuasive and practical guidance within the NSW Supreme Court and lower courts on the management of multi-defendant voidable transaction litigation, rather than introducing novel law.
Still-open questions
Scope and timing of separate-question hearings: The order sets the separate question on solvency and that evidence in one proceeding be evidence in the others, but the judgment does not specify precise procedural timetables or the structure of the separate question hearing (Orders [12.3]–[12.5]). Subsequent case management directions will determine the practical sequencing.
Interaction with s 1337K Corporations Act: The Court noted s 1337K did not readily apply because it prescribes a transfer by the transferor court (The parties' positions [3]). The exact interplay between s 140(1) Civil Procedure Act transfer powers and s 1337K in different factual permutations (for example where a transferor court itself initiates a transfer) remains a matter for context-specific resolution.
Costs outcomes dependent on substantive result: Costs of the application and lower-court proceedings were reserved pending the substantive outcome (The parties' positions [7]–[10]). The judgment foreshadows that success or failure on the merits will influence costs orders; therefore, the precise principles the Court will apply when assessing costs after the substantive hearings (including whether costs of lower-court hearings will be recoverable) remain to be determined in later orders.
Managing prejudice to individual defendants: While the Court accepted case management can mitigate prejudice to individual defendants (The parties' positions [4.2]), the practical limits of that mitigation, and when separate hearings should be ordered to protect defendant interests, will depend on factual complexity and fairness in each case.
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By Originating Process filed on 3 April 2020 the Plaintiff, Mr Naidenov, in his capacity as liquidator ("Liquidator") of MK Floors NSW Pty Ltd (in liq) and MK Floors Qld Pty Ltd (in liq) ("Companies") seeks orders for leave to join several Defendants identified in Schedules B and C to the proceedings pursuant to r 6.19 of the Uniform Civil Procedure Rules 2005 and, further and in the alternative, an order under s 140 of the Civil Procedure Act 2005 (NSW) that the proceedings identified in Schedule B (and, as emerged from submissions, also Schedule C) be transferred to the Supreme Court of New South Wales.
An order was originally sought that the proceedings in Schedule B be consolidated under r 28.5 of the Uniform Civil Procedure Rules but that application was sensibly not pressed, given the complexities which consolidation would involve given the number of parties and the number of other proceedings involved. To the extent the other proceedings were transferred to this Court, and a separate question as to solvency is heard in them as the Liquidator also seeks, then an order would likely be made that the proceedings be heard together and that the evidence in one be the evidence in the other in respect of that separate question. The order may well not continue after the separate question is determined, and the separate defences of the several Defendants may well then be determined subsequently.
The parties have addressed this application in an efficient way and, as events have developed, it appears there is now a significant degree of common ground and the issues in dispute are relatively limited. I will address the evidence before turning to those issues.
[3]
Affidavit evidence
The Liquidator relies on his affidavit dated 2 April 2020, which refers to the fact that he and another insolvency practitioner were initially appointed as joint and several voluntary administrators of the Companies, each of which then transitioned from administration to voluntary liquidation. He refers to steps he took following his appointment and to the commencement of the several proceedings in respect of each of the Companies in the Local and District Courts of New South Wales, immediately prior to the expiry of the relevant limitation period. He notes that separate proceedings were commenced in those Courts because, at the time, it was not apparent whether issues as to solvency would be contentious in each of the proceedings. That approach was reasonable because, if the Defendants had admitted the Companies' insolvency in the six months prior to the administrators' appointment in those proceedings, then all that would have remained would have been any separate defences available to particular Defendants, which may be, as some of the Defendants now point out, have conveniently been determined separately in other proceedings. However, by March 2020, it had emerged that each of the Defendants had put the relevant Company's solvency in issue, whether by denying the allegation of insolvency or by putting the Liquidator to proof of insolvency. In those circumstances, there are now multiple proceedings in the Local Court and the District Court, all of which raise the same issue as to the insolvency of each of the Companies in the six month period prior to the appointment of the voluntary administrators to the Companies.
By a second affidavit dated 11 June 2020, the Liquidator refers to the preliminary view that he has formed that each of the Companies were insolvent in the six months prior to the relation-back day, that is, the date of appointment of Mr Naidenov as voluntary administrator. He also refers to the fact that an insolvency report is now being prepared by another person within his office, although the preparation of that report has been delayed by matters relating to COVID-19. That affidavit exhibits a helpful schedule as to the status of the Local Court and District Court proceedings, which notes that a number of them are listed for directions in June and August 2020. A further affidavit of the Liquidator's solicitor, Mr Calabretta, dated 12 June 2020 indicates the commencement date with the various proceedings, and there has been no submission by any party that they were not commenced within the statutory limitation period for voidable transactions, and updates the position as to directions in two of the proceedings and as to the position taken by the Defendants in this application. That position has further developed as the application proceeded.
[4]
The parties' positions
A number of Defendants consent to the orders sought by the Plaintiff in respect of the transfer of the proceedings to this Court and a separate issue as to solvency, and others consent subject to the position as to costs. Ultimately, as I understood it, no Defendant opposed the orders, once the order for consolidation was no longer pressed by the Liquidator, and what was proposed was a transfer of proceedings to this Court, with the proceedings (or at least the common issue as to solvency) to be heard together as necessary, in a way that preserved the existing pleadings in them and avoided the costs of repleading.
Notwithstanding that there is a significant degree of consensus as to the approach adopted, the Court must nonetheless exercise a judicial discretion in respect of making the orders sought, before I turn to the question of costs and other specific orders sought by particular Defendants. As I noted above, the first order sought is leave to join the several Defendants, which are all of the Defendants in respect of the existing proceedings brought by the two Companies, to the Originating Process. The Originating Process identifies the separate question that is sought to be determined, and identifies the orders sought under s 588FF(1)(a) of the Corporations Act 2001 (Cth) that the Defendants pay to one of the Companies an amount equal to money that those Defendants were paid by the Companies. Those orders are sought on the basis that the transactions are voidable transactions under Part 5.7B of the Corporations Act, taking place at a time that each of the Companies was insolvent. The first proceeding to which all the Defendants would be joined would provide a vehicle for the determination of at least the common issue as to the Companies' solvency.
The second order sought, for the transfer of the other proceedings to this Court under s 140 of the Civil Procedure Act, will allow those other proceedings to travel together with the first proceeding, and may well provide a vehicle for the determination of defences in those separate proceedings, using the pleadings that are already in place within them. The application for transfer of the proceedings was brought under s 140(1) of the Civil Procedure Act 2005 (NSW), which provides that the Court may, of its own motion or on an application by a party, transfer proceedings before the District Court or the Local Court to this Court. That section was appropriately relied upon where the order sought was that this Court transfer of proceedings in the Local and District Courts to this Court. By contrast, s 1337K of the Corporations Act, which deals with the transfer of proceedings in lower courts, did not readily apply where that section is directed to an order made by a transferor court rather than, as here, an order made by the transferee court.
[5]
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Decision last updated: 02 July 2020
Orders made: (1) Leave granted to join defendants in Schedules B and C to the Originating Process pursuant to r 6.19 UCPR; (2) Proceedings in Schedules B and C transferred to the Supreme Court pursuant to s 140(1) Civil Procedure Act 2005 (NSW); (3) Separate question ordered under r 28.2 UCPR whether MK Floors (NSW) Pty Ltd (in liq) and MK Floors Qld Pty Ltd (in liq) were insolvent in the six months prior to external administration; (4) Costs of proceedings in Schedules B and C and costs of the application reserved; (5) For the separate question, these proceedings and those in Schedules B and C to be heard together with evidence in one treated as evidence in the other; (6) Listed for further directions in the Corporations Directions List on 29 June 2020 (The parties' positions [12.1]–[12.6]).
The Fifth Defendant, which initially opposed the application, although it adopted a more nuanced position as matters developed in the course of this hearing, relied on an affidavit dated 8 May 2020 of its solicitor, Mr Moloney. Mr Moloney rightly pointed to a number of separate defences raised by the Fifth Defendant, in two proceedings involving that Defendant, one in the District Court and one in the Local Court of New South Wales. The existence of two proceedings reflects the fact that claims against the Fifth Defendant are brought by each of the two Companies. Mr Moloney's evidence highlights the probability that, in respect of each of the Defendants, separate issues, by way of defence, will ultimately need to be determined, but that is not a complete answer to the possibility that there is an advantage in hearing the proceedings together, at least the common issue as to solvency. As I will note below, Mr Lapirow, who mentioned the matter on behalf of the Third Defendant and appeared for the Fifth Defendant, acknowledged the possibility of advantages in that course in submissions.
I am satisfied, as it appears all of the Defendants are also now satisfied, that the orders under r 6.19 of the Uniform Civil Procedure Rules and for the transfer of the proceedings should be made. As Mr Nathan, who appears for the Liquidator points out, this case ultimately has the features that are common in cases in which the Court has made orders for the joinder of several defendants in a single voidable transaction proceeding, and the determination of a common issue as to solvency in that proceeding. Mr Nathan draws attention to the decision in Dean-Willcocks v Air Transit International Pty Ltd [2002] NSWSC 525 which has since been applied many times as identifying the structure of a "mothership" proceeding in which a liquidator of a company brings unfair preference claims against a number of defendants. Importantly, Mr Nathan points out such orders were made in that case, although those proceedings were commenced as two separate proceedings, and, in that case, defendants were also located in other states.
Mr Nathan also refers to my decision in Re RCG CBD Pty Ltd (in liq) [2016] NSWSC 1489 at [7], where I summarised the circumstances in which the Court may grant leave under r 6.19 of the UCPR to join several defendants in a single proceeding in respect of voidable transactions claims. I there noted that:
"The most obvious reason for that course is the likelihood that the issue of solvency of the company will be a common issue in such claims, and that it is preferable that that is determined only once, as between the several defendants, and not in separate proceedings running the risk of duplicated costs and inconsistent findings."
This case is a clear illustration of that proposition, because here there would be potentially multiple proceedings in each of the District Court and the Local Court, each of which would be determining the same question as to the solvency or insolvency of one of the two Companies over the same six-month period prior to the appointment of the voluntary administrators.
In Re RCG CBD Pty Ltd above, I also recognised the risk of disadvantage to a single defendant, if it was required to be present while issues affecting other defendants are addressed. Mr Lapirow, who as I noted above appears for the Fifth Defendant, has emphasised that possibility here. However, I also there noted that that disadvantage can be mitigated by case management and, in particular, by determining the common issue of solvency in respect of all defendants in a single proceeding, before potentially deciding the remaining issues in respect of the several defendants, involving defences unique to each defendant, in separate hearings for each defendant. Mr Nathan also refers to the observations of Brereton J in Re Bias Boating Pty Ltd [2017] NSWSC 1524, where his Honour recognised the benefit of determining a common issue of solvency in such matters, and also the fact that the Court may bring together proceedings commenced separately, including by removing those separate proceedings commenced from another court, to achieve that result. That is what is sought here.
Mr Nathan in turn identifies discretionary factors which support the order that is sought, including the common question as to the solvency of the two Companies in the several proceedings; the possibility of overlap in factual evidence where the two Companies were part of the same group of companies; and the risk of a multiplicity of findings of solvency and inefficient use of the resources of the District and Local Courts if that question had to be determined multiple times in different proceedings. There seems to me to be substantial force in those propositions. Mr Nathan also points out that, so far as the Fifth Defendant points to other matters that are unique to the particular Defendants, then those may be addressed by case management, as I have noted above.
Turning now to the position of those Defendants who appeared, the Second Defendant's position was ultimately that it consented to the orders sought, but that it sought to have the costs of the District and Local Court proceedings reserved. It seems to me that that is plainly an appropriate course, many of the Defendants supported it, and the Liquidator did not oppose it. If for no other reason, that course should be taken because whether the Liquidator is ordered to pay, or recovers, the costs of the proceedings will likely depend on whether he is successful or fails in them, and the Defendants' ability to recover their costs of the proceedings conversely depends upon their outcome, both in respect of the District and Local Court proceedings and any continuing proceedings in this Court.
The Third Defendant opposes the orders sought, but did not make submissions, although Mr Lapirow mentioned its appearance. The Fourth Defendant consented to the orders but sought to have the costs of the District and Local Court proceedings reserved, a course that is appropriate as I noted above.
The Fifth Defendant initially opposed the orders sought, so far as orders for consolidation were sought and so far as that may have involved an issue of repleading in the two other proceedings to which it is party. Mr Lapirow, however, recognised, in the course of submissions, that where an order for consolidation was not now pressed by the Liquidator, and what was contemplated was a joinder of the Defendants to the proceeding, and the transfer of the existing proceedings to this Court in their existing form, then the cost disadvantage of repleading would not arise and there may be an advantage to the Fifth Defendant so as far as it would face only one proceeding rather than two. Ultimately, I did not understand the Fifth Defendant to oppose that course.
The Fifth Defendant sought its costs of the proceedings in the Local Court and the District Court, on the basis that it was the Liquidator's choice to commence those proceedings, and also sought the costs of this application, which it put as consequential of that choice. I am not satisfied that an order should be made that the Liquidator pay the costs of the Local Court proceedings, where the ultimate position as to costs, as I have noted, will depend upon the outcome of the proceedings. There is no reason to think that the costs of those proceedings will ultimately be wasted, where it is likely that the pleadings in them will be put to use at least in the determination of separate issues as to differences between the parties. Where costs are reserved, that can be taken into account in due course.
The more significant question, raised by several Defendants, relates to the costs of this application. As other Defendants ultimately accepted, it seems to me that the preferable course in that respect is also to reserve the costs of this application. If the Liquidator fails in the proceedings as a whole, then it is likely that he would be ordered to pay the costs of this application, as part of the proceedings in which he has failed, and that possibility should be left open.
My preliminary view is that there should be no order as to the costs of this application other than in that situation. I take that view because each party has had a degree of success, in circumstances that each party has moved somewhat from its opening position. Taking the Plaintiff and the Fifth Defendant as an example, the Liquidator originally sought an order for consolidation, which was only abandoned at the commencement of the submissions today. That would have introduced additional costs and complexities, as to which the Fifth Defendant was rightly concerned. The Fifth Defendant in turn opposed the order for transfer, but moved, in the course of submissions, to a more moderate position which recognised the advantages of the transfer, so far as determination of the common issue as to solvency and the existence of a single proceeding concerning it was involved. That is not a matter for criticism for either party, and it should be recognised that both parties and their legal representatives approached the matter in a constructive way, recognising matters that impacted their respective clients' positions as submissions developed. However, that development suggests that there should be no order for costs of this application, at least if the Liquidator is ultimately successful in the proceedings.
I should add, for completeness, that I am also not persuaded that an order should be made that of the Liquidator pay the costs of this application on the basis that it would not have needed to be made, had the Liquidator commenced these proceedings as a single proceeding in this Court. With hindsight, the desirability of that course is apparent, but it is only apparent because it is now apparent that all Defendants have put solvency of the Companies in issue. If that had not been put in issue, then the continuance of the proceedings in the Local Court and the District Court, where the primary issue raised would have been the individual defences, may well have been a cost effective course. In these circumstances, it seems to me that the issues which now warrant transfer of the proceedings to this Court, and the hearing of a single common issue, have emerged from the position taken by the Defendants as to solvency, and that does not warrant an order against the Liquidator in respect of the costs of this application.
Other Defendants adopted positions which broadly consented to the orders sought, but sought reservation of the costs below, and, on occasion, costs of this application. I will, without disrespect to their legal representatives, not summarise their arguments, where they generally adopted combinations of the matters which I have already addressed above. I note, for completeness, that the Second Defendant sought to be excused from further attendance until after the separate question as to solvency was determined, and sought to have the Liquidator's legal representatives report to it as to the outcome of directions hearings and any common hearing as to solvency. That matter was agreed as between the Liquidator and the Second Defendant and I need not address that question in any orders that I make.
For these reasons, I am satisfied that orders should be made, in the modified form in which they developed in the course of the application. I, therefore, make the following orders:
1. Leave to join in the Originating Process each of the defendants named in Schedule B and Schedule C to the Originating Process pursuant to r 6.19 of the Uniform Civil Procedure Rules 2005.
2. Pursuant to s 140(1) of the Civil Procedure Act 2005 (NSW) order that the proceedings identified in Schedules B and C be transferred to the Supreme Court of New South Wales.
3. Order pursuant to rule 28.2 of the UCPR that the Court determine a separate question as to whether MK Floors (NSW) Pty Ltd (in liq) and MK Floors Qld Pty Ltd (in liq) were insolvent in the six months prior to those companies entering into external administration, or at some date in that period.
4. Reserve the costs of each of the proceedings identified in Schedule B and Schedule C and the costs of this application.
5. In respect of the separate question as to solvency, order that these proceedings and the proceedings identified in Schedules B and C be heard together, the evidence in one be the evidence in the other.
6. List the proceedings for further directions in the Corporations Directions List at 10am on 29 June 2020.