Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher

BACKGROUND FACTS 7 The Liquidators were appointed joint and several liquidators of the Company on 19 October 2020 (Appointment Date) pursuant to s 491(1) of the Act by a special resolution of the Company's members, Solomon Kurc and Lea Kurc.

The Company and its business 8 The Company was part of a group of related entities referred to as the 'Kurc Group', and which were ultimately owned by the Kurc family. The Company operated solely in its capacity as the trustee of the Kurc Family Trust. The beneficiaries of the Kurc Family Trust are members of the Kurc family. 9 The Company conducted a retail business selling art and craft supplies under the name 'Riot Art & Craft'. The Company operated via approximately 56 retail stores across Australia predominantly in high profile shopping centres and some shopping strips. The Company also operated an online arts and crafts supply business. 10 The Company's head office was located at Unit 10/104-110 Keys Road, Cheltenham (Property). The Company owned the Property up until March 2020, when it was sold to a related entity, Soleku, in its capacity as trustee for the Soleku 2 Unit Trust. 11 The directors of the Company have been: (a) Solomon Kurc (25 February 1977 - 17 June 2019); (b) Lea Kurc (25 February 1977 - 17 June 2019); and their children: (c) Michael Kurc (17 June 2019 to date); and (d) David Kurc (17 June 2019 - 10 July 2020). From 10 July 2020 to the Appointment Date, Michael Kurc was the sole director of the Company. David and Michael Kurc are the sons of Solomon and Lea Kurc. 12 The Kurc Group is complex with several family trusts and a large number of related companies. The Kurc Group includes: (a) Damiss, incorporated on 26 November 1979, the directors of which as at the Appointment Date were Michael and David Kurc, and from which Solomon and Lea Kurc resigned as directors on 17 June 2019; (b) Dajomis Pty Ltd, registered on 8 August 2006, the sole director of which is Solomon Kurc; (c) Soleku, registered on 7 April 2010, the directors of which are Michael and David Kurc; (d) Riot Stores, registered on 22 January 2020, the sole director of which is Michael Kurc. It is understood by the Liquidators that Riot Stores was established to acquire the Company's online business; and (e) Kurc IP Pty Ltd, registered on 27 May 2020, the director of which is Solomon Kurc. Kurc IP Pty Ltd is the trustee for the Kurc IP Unit Trust. It is understood by the Liquidators that Kurc IP Pty Ltd was established to hold the intellectual property of the Company and then license it back to the Company. 13 The Company had financial facilities with Australia and New Zealand Bank (ANZ), Commonwealth Bank of Australia and National Australia Bank. The primary facility of the Company was with ANZ.

Restructuring and debt advice 14 In early 2019, the Company engaged Axis Capital Pty Ltd (Axis Capital) to advise on business restructuring, the Kurc Group financial arrangements and the debts of the Company. Axis Capital is a specialist debt advisory firm. The Kurc Family also sought advice from B2B Lawyers and from its accountants, Goldman & Associates, regarding Kurc Group restructuring. 15 The Liquidators have identified a number of transactions engaged in by the Company in 2020, prior to the Appointment Date, which the Liquidators suggest were taken to divest the Company of its assets and to transfer them to related entities. In particular: (a) On 11 March 2020, the Property was transferred from the Company to Soleku in its capacity as trustee for the Soleku 2 Unit Trust. (b) On around 8 April 2020, the Company sold its online (e-commerce) business to Riot Stores (Sale of Business). The Sale of Business was formalised in a sale of business agreement prepared by B2B Lawyers. (i) Pursuant to the Sale of Business, the Company sold stock to Riot Stores post 8 April 2020. The Liquidators consider that the basis on which the value of the sale of the stock was calculated requires additional investigation particularly whether Riot Store paid fair market value for the stock. (ii) Following the Sale of Business from the Company to Riot Stores, some of the employees of the Company engaged in work for Riot Stores. As at the Appointment Date, employees of the Company were owed $3,079,155.53, of which the Commonwealth (through the Fair Entitlements Guarantee (FEG) Scheme) has paid $2,364,285.60. (c) On 18 October 2020, the day before the Appointment Date, the Company transferred the sum of $3,103,719.84 to the related company, Damiss. The Liquidators consider that the transfer was part of an arrangement whereby debt owed by the Company to Damiss that was previously unsecured was converted to secured debt owed to Damiss. 16 The Liquidators are concerned that the effect of the restructuring was that: (a) the online business and assets of the Company were transferred to a related party in the 6 month period prior to the Appointment Date in circumstances where it is not clear that market value was paid; and (b) another related party (Damiss) received significant payments from the Company the day before the Appointment Date in relation to an alleged secured debt in circumstances where the alleged security interest was registered a little over 6 months prior. 17 Following the appointment of the Liquidators, unsecured creditors of the Company including landlords of the former retail stores are understood to be owed approximately $16,362,516.45. There are currently limited assets available to pay unsecured creditors and the Liquidators have noted that unless realisations are made through claims against related parties, unsecured creditors will not receive any significant dividend.

Timeline of investigations 18 Following their appointment (19 October 2020), the Liquidators have conducted a number of investigations including: (a) obtaining and reviewing the books and records of the Company including its banking records; (b) reviewing financial statements and accounting software of the Company; and (c) meeting with Michael Kurc and B2B Lawyers regarding Company transactions, including but not limited to those involving stock, business assets and security agreements. 19 On 21 January 2021, the Liquidators demanded repayment of $3,103,714.79 from Damiss on the basis that the money transfers made on 18 October 2020 were uncommercial transactions and an unfair preference recoverable by a liquidator. 20 On 17 March 2021, the Liquidators received a response to the demand for repayment from Damiss, whereby Damiss rejected the demand for repayment and set out its position regarding potential defences to an uncommercial transaction claim. 21 The Liquidators formed the view that it would be necessary to undertake examinations of key persons involved in the restructure of the Company, and to fully investigate matters in order to: (a) seek further information about the transactions involved; (b) understand and test the defences that might be raised, and had been raised in correspondence from B2B Lawyers; and (c) consider the asset position of potential defendants.

Application for funding to conduct examinations 22 The estimated realisable value of the assets of the Company as at 18 January 2021 was $206,742.38, of which $62,372.99 had been realised. The Liquidators formed the view that this amount would be insufficient to conduct investigations, fund examinations and, if appropriate, institute recovery proceedings. The Liquidators therefore determined to seek funding to undertake examinations. 23 In about July 2021 (8 months from the Appointment Date), the Liquidators sought funding from ASIC to undertake examinations of key persons, including company officers. The Liquidators also sought funding from the Commonwealth under the FEG Scheme. 24 In late February 2022, (6 months after the initial request for funding, 16 months from the Appointment Date) ASIC and the Commonwealth approved funding to enable public examinations to be undertaken. 25 Entry into the funding agreement with the Commonwealth under the FEG Scheme (but not ASIC) required creditor approval under s 477(2B) of the Act. On 2 March 2022, the Liquidators sought creditor approval to enter into the funding agreement with the Commonwealth, which approval was granted at a meeting of creditors held 21 March 2022.

Application to Supreme Court of Victoria to conduct statutory examinations 26 On 24 March 2022, the Liquidators issued proceedings in the Supreme Court of Victoria seeking orders for the issue of summonses for examination pursuant to section 596A and 596B of the Act. The persons sought to be examined included: (a) Michael, David, Solomon and Lea Kurc, each directors or former directors of the Company and directors of other companies in the Kurc Group; (b) Joel Goldman in his capacity as a director of Goldman Financial Services Pty Ltd trading as Goldman Associates, the Company's former accountant; and (c) David Lurie in his capacity as a partner in the partnership of B2B Lawyers, the Company's legal advisor. The originating process further sought orders for the production of documents by the prospective examinees and, pursuant to section 597(9) of Act, by Riot Stores and Damiss. 27 Among the categories of documents required to be produced were: (a) documents between the prospective examinees and Axis Capital during a stated period (defined as the 'Relevant Period'); (b) documents with respect to the provision by Mr Goldman of accounting, taxation or other advisory services to the Company, Riot Stores and Damiss during the Relevant Period; and (c) documents with respect to the provision of legal advice to the Company in relation to the restructuring of the Company's affairs in the Relevant Period including advice in relation to the sale of the business and the loan agreement and security agreements between the Company and Damiss. 28 On 11 April 2022, the Supreme Court ordered the Liquidators to file the summonses as proposed and for the production of documents as sought in the originating process. The date for the return of the summonses for the production of documents was ordered for 9 May 2022 and return of the summonses for examination was ordered for 14-22 July 2022.

Delay of statutory examinations 29 Following the service of the summonses and orders on the examinees, Riot Stores and Damiss: (a) Solomon and Lea Kurc made applications on 28 April 2022 to have their summonses set aside on the grounds of poor health. After affidavit material was filed in early June 2022 by Solomon and Lea Kurc, the Liquidators agreed to discharge the summons to Lea Kurc, but not the summons to Solomon Kurc. Orders were made by consent revising the time for Solomon Kurc to comply with the production of documents and to permit him to be examined by video link with appropriate support and breaks; (b) On 9 May 2022, only Mr Lurie and Mr Goldman had produced documents pursuant to their respective summons. Mr Goldman made a claim for legal professional privilege with respect to 48 documents produced to the Court, and objected to inspection of those documents by the Liquidators; (c) Michael and David Kurc, Riot Stores and Damiss all sought additional time to comply with the production requirements, and were granted an extension to 23 May 2022 and then a further extension to 30 May 2022; (d) On about 30 May 2022, Michael Kurc, David Kurc, Riot Stores and Damiss produced documents in response to the summonses and orders. Michael Kurc, Riot Stores and Damiss objected to inspection of a number of documents on the grounds of legal professional privilege. They were ordered to produce by 1 June 2022, a schedule of documents in respect of which a claim for privilege was made and setting out the basis for the claim; (e) On 3 June 2022, Riot Stores and Damiss served a schedule listing 94 documents in respect of which a claim of privilege was asserted. The lists identified email correspondence between Michael Kurc, B2B Lawyers and Joel Goldman which were identified as containing instructions and legal advice; (f) On 15 June 2022, Michael Kurc served a schedule listing 87 documents in respect of which a claim of privilege was asserted, comprising mostly of email correspondence between Michael Kurc, B2B Lawyers and Joel Goldman which were identified as containing instructions and legal advice, largely concerning the restructure of the Company; (g) On 7 July 2022, the lawyers for the Liquidators corresponded to the lawyers for Michael Kurc, Riot Stores and Damiss stating, among other things, that the claims for privilege were not made out, or that the privilege claimed was jointly held with the Company, and therefore the Liquidators were entitled to inspect the documents, or that the communications included legal advice that was sought as part of a plan to defeat the interests of creditors and therefore any privilege was under s 125 of the Evidence Act 2008 (Vic). The letter also attached an annotated version of the schedule setting out the Liquidators' responses or objections to the claims for privilege; (h) In view of the contest over the claims of privilege (Privilege Claim), on 13 July 2022, the Supreme Court made orders timetabling the interlocutory steps for the Privilege Claim, fixed a hearing date of 29 August 2022, and made consequential orders rescheduling the examinations from 14-22 July 2022 to 20-28 October 2022 (after the Privilege Claims could be heard and determined); (i) The hearing of the Privilege Claim was rescheduled from 29 August to 15 September 2022; (j) The hearing of the Privilege Claim proceeded on 15 September 2022 before Judicial Registrar Woronczak. At the conclusion of the oral hearing, Judicial Registrar Woronczak reserved her decision. Orders were made to allow for filing of additional material and submissions (to be completed by 12 October 2022); (k) On 20 October 2022, on the Court's own motion, Judicial Registrar Woronczak made orders adjourning the examinations to a date after the decision of the Privilege Claim, and rescheduled the examination dates from 20-28 October 2022 to 8-15 December 2022; (l) On 30 November 2022, Judicial Registrar Woronczak's Associate wrote to the parties to the Privilege Claim stating that a ruling regarding the Privilege Claim would not be delivered prior to the scheduled commencement of the examinations on 8 December 2022, but would be delivered by no later than the end of January 2023. Following discussions between the parties to the Privilege Claim, the summonses for examination were adjourned until 20 March 2023 to 3 April 2023 by way of orders dated 7 December 2022; (m) Judgment was not delivered by the end of January 2023. On 24 February 2023, the lawyers for the Liquidators emailed the Court to enquire as to when Judicial Registrar Woronczak would be handing down judgment as the first day of the examinations was listed for 20 March 2023; (n) After communications with the interested parties and the Court, the examinations listed for 20 March 2023 to 3 April 2023 were adjourned to 21-31 August 2023; (o) On 7 June 2023, the lawyers for the Liquidators sent a communication to the Court: (i) stating that the parties would not be in a position to commence the examinations until her Honour had delivered her reasons relating to the Privilege Claim and those reasons had been properly considered by the parties; (ii) noting that the examinations were scheduled to commence on 21 August 2023; (iii) noting that the limitation period for the Liquidators to bring certain claims under the Act expired in mid-October 2023; and (iv) requesting an indication from Judicial Registrar Woronczak as to when judgment would be delivered; (p) On 22 June 2023, the parties to the Privilege Claim were informed that the Court anticipated handing down its decision during the week of 10 July 2023; (q) The decision was ultimately handed down on 21 July 2023 (Privilege Decision). Judicial Registrar Woronczak determined that with respect to one of the documents over which privilege was claimed (Privileged Documents), the claim for legal professional privilege had not been made out, and with respect to the balance, while the documents were privileged, that privilege was jointly held with the Company. It followed that the Liquidators would be permitted to inspect and view the Privileged Documents; (r) Orders were made on 2 August 2023 permitting uplift, inspection and copying of the documents over which privilege had been claimed. However, those orders were stayed until the final day that the examinee parties to the Privilege Claim had to review the Privilege Decision , being 4 August 2023; (s) On 3 August 2023, Michael Kurc, Riot Stores and Damiss filed a notice of appeal (Privilege Appeal) appealing the orders for inspection and the Privilege Decision. The Liquidators and appellants have agreed orders staying the order for inspection until after the hearing and determination of the Privilege Appeal. Consequently, the Liquidators and their legal representatives will not have access to the Privileged Documents until such time as the Privilege Appeal is heard and determined; (t) On 29 August 2023, the Privilege Appeal was listed to be heard by Attiwill J in the Supreme Court on 24 November 2023. The examinations were adjourned to a date to be fixed pending the outcome of the Privilege Appeal; and (u) the Privilege Appeal was heard before Attiwill J in November 2023. His Honour has reserved his judgment.

Liquidators seek extension of time under s 588FF(3)(b) of the Act 30 The Liquidators submit that unless time is extended under s 588FF(3)(b) of the Act, the time for the Liquidators to commence any voidable transaction claims in respect of the Company is three years after the relation-back day. The relation-back day in the case of the Company is 19 October 2020, being the day that the Company resolved by special resolution that it be wound up voluntarily. The limitation period for the Liquidators to commence voidable transaction claims therefore expired on 19 October 2023. 31 The Liquidators seek an extension of time pursuant to s 588FF(3) of the Act to extend the time within which they may bring any voidable transaction claims in respect of the Company by approximately 18 months, to 19 April 2025. It should be noted that the Liquidators have not sought to limit their application for extension by reference to particular transactions or interested persons.

Further steps 32 The Liquidators submit that once the Privilege Appeal has been determined, the Liquidators will conduct the examinations of the examinees. Following the examinations, the Liquidators will need some additional time to consider potential claims and commence proceedings if so advised. 33 The Liquidators have also stated that the current funding agreements with FEG and ASIC do not cover the issuing of proceedings for recovery actions. Therefore, if the Liquidators are of the view that proceedings should be commenced against some or all of the interested persons following the examinations, the Liquidators will need to obtain additional funding which may take additional time. 34 The Liquidators therefore propose an extension until 19 April 2025 to provide sufficient time for: (a) the Privilege Appeal to be heard and determined; (b) the examinations to take place following the resolution of the Privilege Appeal; (c) the transcript and evidence arising from the examinations to be considered; (d) advice to be obtained with respect to possible claims against interested persons; (e) litigation funding to be secured; (f) claims to be drawn up; and (g) proceedings to be issued.

Potential claims 35 At paragraphs 69-88 of the Giasoumi affidavit, the Liquidators have identified factual matters underpinning potential claims against the interested persons, including voidable transaction claims under Pt 5.7B of the Act. Those claims are summarised in the table at paragraph 89 of the Giasoumi affidavit as follows: Potential Defendant Nature of Claim Potential amount of claim Michael Kurc Officer's duty to prevent creditor-defeating dispositions (under s 588GAB of the Act), procuring creditor-defeating dispositions (under s 588GAC of the Act) and creditor-defeating dispositions (under s 588FDB of the Act) arising from (amongst other conduct) the Sale of Business, the sale of the Property, and the payments to Damiss in purported discharge of the secured debt. $3,103,714.79 paid to Damiss, with other amounts yet to be quantified. Unreasonable director-related transactions (under s 588FDA of the Act) arising from (amongst other conduct) the Sale of Business, the sale of the Property, and the payments to Damiss in purported discharge of the secured debt. $3,103,714.79 paid to Damiss, with other amounts yet to be quantified. Uncommercial transactions (under s 588FB of the Act) arising from (amongst other conduct) the Sale of Business, the sale of the Property, and the payments to Damiss in purported discharge of the $3,103,714.79 paid to Damiss, with other amounts yet to be quantified. secured debt. Transactions to avoid employee entitlements (under s 596AB and/or s 596AC of the Act) arising from (amongst other conduct) the Sale of Business, the sale of the Property, and the payments to Damiss in purported discharge of the secured debt. $3,103,714.79 paid to Damiss, with other amounts yet to be quantified. Breaches of statutory directors' duties (including under ss 180, 181, 182, 183, 588GAB and 588GAC of the Act) arising from (amongst other conduct) the Sale of Business, the sale of the Property, and the payments to Damiss in purported discharge of the secured debt. $3,103,714.79 paid to Damiss, with other amounts yet to be quantified. David Kurc Officer's duty to prevent creditor-defeating dispositions (under s 588GAB of the Act), procuring creditor-defeating dispositions (under s 588GAC of the Act) and creditor-defeating dispositions (under s 588FDB of the Act) arising from the Sale of Business and the sale of the Property. Yet to be quantified. Unreasonable director-related transactions (under s 588FDA of the Act) arising from the Sale of Business and the sale of the Property. Yet to be quantified. Uncommercial transactions (under s 588FB of the Act) arising from the Sale of Business and the sale of the Property. Yet to be quantified. Breaches of statutory directors' duties (including under ss 180, 181, 182, 183, 588GAB and 588GAC of the Act) arising from the Sale of Business and the sale of the Property. Yet to be quantified. Riot Stores Creditor-defeating dispositions (under s 588FDB of the Act) arising from the Sale of Business. Yet to be quantified. Uncommercial transactions (under s 588FE of the Act) arising from the Sale of Business. Yet to be quantified. Unreasonable director-related transactions (under s 588FDA of the Act) arising from the Sale of Business. Yet to be quantified. Damiss Creditor-defeating dispositions (under s 588FDB of the Act) arising from the payments to Damiss in purported discharge of the secured debt. $3,103,714.79 paid to Damiss. Uncommercial transactions (under s 588FE of the Act) arising from the payments to Damiss in purported discharge of the secured debt. $3,103,714.79 paid to Damiss. Soleku Creditor-defeating dispositions (under s 588FDB of the Act) arising from the sale of the Property. Yet to be quantified. Uncommercial transactions (under s 588FE of the Act) arising from the sale of the Property. Yet to be quantified. Unreasonable director-related transactions (under s 588FDA of the Act) arising from the sale of the Property. Yet to be quantified. David Lurie Procuring creditor-defeating dispositions (under s 588GAC of the Act) arising from the Sale of Business and the payments to Damiss in purported discharge of the secured debt. $3,103,714.79 paid to Damiss, with other amounts yet to be quantified. Transactions to avoid employee entitlements (under s 596AB and/or s 596AC of the Act) arising from the sale of the Property. Yet to be quantified.

36 At paragraph 90 of the Giasoumi affidavit, the Liquidators have stated that "[a]side from the potential claims noted above, there may be other claims available to the Liquidators. [The] investigations remain ongoing".

Statutory Framework 37 Pursuant to s 588FF(1) of the Act, where, on the application of a company's liquidator, a court is satisfied that a transaction of the company is voidable because of s 588FE, the court may make orders specified in s 588FF(1) of the Act. 38 Section 588FF(3) of the Act provides that an application under s 588FF(1) may only be made: (a) during the period beginning on the relation-back day and ending: (i) 3 years after the relation-back day; or (ii) 12 months after the first appointment of a liquidator in relation to the winding up of the company; whichever is the later; or (b) within such longer period as the Court orders on an application under this paragraph made by the liquidator during the paragraph (a) period.

Exercise of discretion under s 588FF(3)(b) of the Act 39 The applicable principles in respect of this type of application are well established. The Court is required to consider "… what is fair and just in all the circumstances": Marsden (in his capacity as liquidator of Pentridge Village Pty Ltd (in liq) (rec and mgr apptd) (controller apptd)) v CVS Lane PV Pty Ltd [2018] FCA 102 at [54] (Gleeson J) (Marsden) citing BP Australia Ltd v Brown (2013) 58 NSWLR 322. The matters which ordinarily inform the exercise of the Court's discretion are: (a) the liquidator's explanation for the delay in taking action within the three-year period provided for by the statute: Marsden at [55]; (b) the merits of the foreshadowed proceedings, which are to be assessed by a "preliminary review": Marsden at [55]; and (c) any likely prejudice that would be suffered if the extension of time is granted: Marsden at [55] citing Parker, Re Worldwide Specialty Property Services Pty Ltd (in liq) v Worldwide Specialty Property Services Pty Ltd (in liq) [2017] FCA 687 at [15]-[16] (Lee J) (Parker); Walker and Moloney v CBA Corporate Services (NSW) Pty Ltd [2012] FCA 328 at [43] (Nicholas J) (Walker).

Delay 40 In Parker, Lee J set out a number of propositions regarding considerations of delay and their relevance to assessing what is fair and just in all the circumstances. Lee J noted that regard must be had first to the general public policy underlying the imposition of limitation periods generally, and secondly, to the public policy underlying the limitation period under s 588FF(3)(b) in particular. In this respect, his Honour stated at [19]: (b) as to limitations generally, four broad rationales for the enactment of limitation periods can be identified: first, as time goes by, relevant evidence is likely to be lost; secondly, it is oppressive to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed; thirdly, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them; fourthly, it is in the public interest requires that disputes be settled as quickly as possible; (c) as to the particular context of s 588FF(3)(b): (i) a broader public interest is served by allowing persons who have had dealings with companies which become insolvent to conduct their commercial affairs with a degree of certainty about their exposure to having past transactions unravelled… (ii) where conflicting interests have to be balanced, the eventual loss of the ability to make a relevant claim for a voidable transaction may be less important in favour of providing certainty to others who have had dealings with the company, including other creditors, so that they can proceed with their business affairs with an assurance that they are no longer at risk; (iii) importantly… in Arthur Andersen Corporate Finance Pty Limited v Buzzle Operations (In Liq) (2009) NSWCA 104 (at ([93]), Ipp JA expressed the view, that the deliberate decision to allow a writ to become stale after a limitation period had expired would be a powerful factor against extending time for service, noting that any prejudice suffered in such circumstances would be "self-inflicted". Consistently with this notion, a seemingly deliberate decision on the part of a liquidator not to pursue, in a timely fashion, the investigations for which an extension is sought, is a decision of a similar kind, such that any prejudice occasioned might also be said to be self-inflicted: 41 His Honour also noted at [21]: Consideration of delay on the part of a liquidator as part of the discretionary mix can be gleaned from many cases (including the judgment of Finn J in Taylor v Woden). Identifying operative delay and assessing its seriousness is a necessarily fact dependent analysis, but from the cases, reference has often been made to matters such as the complexity of the company's affairs and records (or lack thereof); the financial resources to fund an investigation; and the complexity of the investigation including whether advice is needed and whether examinations are necessary or desirable.

Merits 42 In respect of the merits of the proposed claims, what is required is "an investigation as to whether such proceedings would be so devoid of prospects that it would be unfair, by granting an extension, to expose the other party to the continuing prospect of suit": Parker at [16], citing Walker at [44]. However, a review of the merits may be unnecessary if the purpose of the application for the extension of time is to allow the liquidator time in which to determine whether it ought to bring proceedings: Walker at [44]; Taylor v Woden Constructions Pty Ltd [1998] FCA 1228 (Finn J).

Prejudice 43 As to the role of prejudice, ordinarily prejudice should be of paramount importance, but the absence of prejudice is not itself decisive; it is rather a relevant factor to be taken into account in the exercise of the general discretion: Marsden at [62]; Parker at [20].

Interested Persons oppose the extension of time relief 44 The Interested Persons oppose the extension of time relief sought under s 588FF(3)(b) on the following bases: (a) The period of extension of approximately 18 months to 19 April 2025 is excessive; (b) The Liquidators seek a "shelf order" which is not justified; and (c) The extension of time should not be granted in respect of potential claims against the Interested Persons where they would suffer specific prejudice on account of the age and health of Solomon Kurc.

Excessiveness of extension period 45 The Interested Persons referred to the decision of Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher (2015) 254 CLR 489 in which the High Court, at [24], describe the time limit in s 588FF as a "qualification" that required that liquidators "be placed under a reasonable time limitation for taking action under the voidable transaction provisions". The High Court further observed that "a purpose of that qualification, expressed in 'clear and emphatic' terms, is to favour certainty for those who have entered into transactions with the company during the periods in respect of which designated transactions may be voidable". 46 The Interested Persons submit that one of the matters that ordinarily informs the Court's consideration of an application such as this is the liquidator's explanation for the delay resulting in the proposed proceedings not having been commenced within the three year period provided for by the statute: Walker at [43]; Re Clarecastle Pty Ltd (in liq) (2011) 255 FLR 435 at [137] (Clarecastle) (Ward J, as her Honour then was). 47 The Interested Parties submit when considering the delay in this case, the lateness of the application relative to the expiration of the period under s 588FF is notable. Without an extension, the Liquidators were required to make any applications for relief under s 588FF(1) by 19 October 2023. The application for the extension of time relief was not filed until 3 October 2023. The Interested Parties submit that it is incumbent upon the Liquidators to come to court at the earliest opportunity: in Re Cohalan & Mitchell Roofing (in liq) [2020] VSC 222 at [59] (Sifris J). 48 The Interested Parties submit that the Liquidators have had almost all of the three-year period provided by s 588FF in which to investigate and commence claims under that section. The Interested Parties also note that a key premise of the Liquidators' application is that the dispute regarding the Liquidators' access to the Privileged Documents has delayed public examinations, and thereby prevented the Liquidators from being in a position to commence proceedings under s 588FF. 49 The Interested Persons submit that based on the evidence filed by the Liquidators, the Court cannot be satisfied that resolution of the status of the Privileged Documents is a genuine impediment to progressing the public examinations and the liquidation of the Company more generally. The Interested Persons also submit that any delay is the product of a particular strategic decision of the Liquidators, namely, to postpone both the public examinations and potential litigation of s 588FF claims pending resolution of the status of the Privileged Documents. The Interested Persons submit that that decision has not been explained or justified in a manner that warrants an extension of the duration that is sought. In that regard, the Interested Persons submit that courts have held that where liquidators make forensic decisions regarding the conduct of liquidations, they "must bear the risk that there will be no extension [under s 588FF(3)(b)] granted": Clarecastle at [219]-[220]. 50 The Interested Persons further submit that the Liquidators' apparent reliance upon a link between the public examination process and the litigation of potential claims is unsupported by the evidence. The Interested Persons also point to a lack of evidence regarding attempts by the Liquidators to secure additional funding, where the Liquidators' position is that if s 588FF proceedings are ultimately commenced, additional funding will need to be obtained. 51 The Interested Persons submit that in light of the above matters, the proposed duration of extension sought by the Liquidators is excessive and is not justified by the Liquidators' evidence.

Shelf order should not be made 52 The extension order sought by the Liquidators does not specify the particular claims or transactions in respect of which the extension is to be granted. The Interested Persons recognise that the Court has power to make what is commonly known as a "shelf order", extending time without specifying the particular transactions to which it would apply. The Interested Persons submit that the Liquidators have not addressed why a shelf order is necessary in this instance. The Interested Persons point to the fact that the Liquidators had almost three years to investigate the prospects of claims and have already identified "the key transactions" and identified in some detail "potential recovery actions" including by identifying each "potential defendant". The Interested Persons submit that there is no evidence of any prospect that further claims are capable of being investigated or prosecuted, beyond the broad statement (at paragraph 90 of the Giasoumi Affidavit) that "there may be other claims available to the Liquidators". 53 The Interested Persons submit that any extension of time granted to the Liquidators should be confined to those claims or transactions that the Liquidators have identified to date as potentially giving rise to a claim under s 588FF of the Act. The evidence, in the Interested Persons' submission, does not support the granting of a "shelf order" extension in respect of claims that are unidentified, and which may lie against persons that have not been provided with notice of the application. In particular, the Interested Persons note that neither Solomon Kurc, nor Dajomis Pty Ltd, have been identified as potential defendants and no potential recovery actions are identified in relation to them in the Giasoumi Affidavit.

Prejudice to the Interested Persons 54 The Interested Persons submit that in exercising the discretion on an application such as this, the Court must consider any prejudice likely to be suffered in the event that the extension of time relief is granted. Delay in the commencement of proceedings, consequent upon an extension, will be prejudicial to the defendants to those proceedings: Clarecastle at [217]; Parker at [55]. 55 The Interested Persons submit that, in the present case, the Interested Persons will be prejudiced by the granting of the extension relief to the extent that it relates to potential claims against them. In particular, the Interested Persons submit: (a) Solomon Kurc is 79 years old and has been a widower since 18 May 2023, when his wife of 55 years (Lea Kurc) passed away. He is the primary carer for a 47-year old adult child with intellectual disabilities. He is suffering from depression and anxiety. (b) Solomon Kurc ceased to be a director of the Company from 17 June 2019. He ceased as a director of Damiss on the same date. The Interested Persons note that this is some months before the pre-appointment transactions the Liquidators have identified as being taken to divest the Company of its assets. (c) The Liquidators' evidence does not identify any potential claim against Solomon Kurc, nor against Dajomis Pty Ltd (a company of which Solomon Kurc is the sole director). 56 The Interested Persons submit that, in light of the above matters and the presumptive prejudice arising from delay recognised by the authorities, the Liquidators' submission that there is "no real prejudice to the interested persons" must be rejected. The Interested Persons also submit that given neither Solomon Kurc nor Dajomis Pty Ltd were participants in the Privilege Claim, it could not be said that they had taken steps to cause the delay in the conduct of the examinations. 57 The Interested Persons submit that Solomon Kurc's age, health and circumstances are such that both he and Dajomis Pty Ltd will suffer a particular forensic disadvantage occasioned by the passage of time. Therefore, the Interested Persons submit that to the extent that any extension of time is to be granted, claims against the Interested Persons should be carved out from the relief.

Explanation for delay in making application 58 I am satisfied on the evidence that the Liquidators, following their appointment, acted expeditiously to conduct preliminary investigations including accessing books and records, financial accounts and accounting software and meeting with Mr Michael Kurc and the Company's former lawyers to understand the affairs of the Company and the Kurc Group. I accept the Liquidators' evidence that this is not a straightforward administration. The evidence indicates that interested persons obtained advice about a restructuring of the business conducted by the Company and about the financial obligations of the Company and other entities in the Kurc Group prior to the appointment of the Liquidators. 59 I am satisfied, on the evidence, that there is a prima facie case that the restructuring left creditors of the Company with limited assets from which to recover their debts. This included former employees and the landlords of a substantial number of former retail shops. 60 The Liquidators, from their investigations, have identified transactions of concern including the sale of the online business to the newly created entity, Riot Stores, the sale of stock and the subsequent consignment agreement, the loan arrangements between the Company and Damiss that allegedly transferred unsecured debt into secured debt, and the sale of the Property to Soleku, among other transactions. The Liquidators are concerned to investigate these matters further by way of public examination. 61 I am also satisfied on the evidence that the Liquidators have acted with expedition in undertaking their investigations of the Company's pre-appointment transactions in 2020. That much is evident from the chronology of the initial investigations, the Liquidators' application to obtain funding to conduct examinations (which took approximately six months), and the steps undertaken by the Liquidators in the Supreme Court of Victoria to conduct examinations of the interested persons and to obtain documents relevant to the restructure of the Company's business (including resisting the Privilege Claim) as identified in the Giasoumi Affidavit at [10]-[67]. 62 I accept the Liquidators' evidence that the public examinations in the Supreme Court of Victoria have been frustrated and delayed through no fault of the Liquidators. There have been challenges to the issuing of the summonses by Solomon and Lea Kurc, delays in the provision of documents and claims for privilege over a material number of documents, which, I accept, go to the advice sought and provided in respect of the business and debt restructuring of the affairs of the Company and the Kurc group. 63 The public examinations were postponed while the Privilege Claim was considered and determined by Judicial Registrar Woronczak. The determination of the Privilege Claim by the Judicial Registrar took almost twelve months. Once the Judicial Registrar determined that the Liquidators could inspect the Privileged Documents, the decision was subject to an appeal. That appeal was heard on 24 November 2023 by Justice Attiwill (after the expiration of the limitation period under s 588FF). Justice Attiwill has reserved his decision in respect of the appeal. The Liquidators, quite reasonably in my view, have postponed the public examinations pending the appeal decision. 64 The applications for public examinations were filed in March 2022, only a month after the Liquidators received funding approval from ASIC and the Commonwealth to conduct the public examinations. The public examinations have not been held for the reasons outlined above. I accept the Liquidators' explanation that a substantial part (19 months) of the three-year period within which to bring the insolvent transaction claims has elapsed while the public examination process has been underway. I accept that this has been, to a large extent, out of the control of the Liquidators and that forensic decisions made by the Liquidators have not contributed to this delay unreasonably. 65 I reject the Interested Persons' submissions that the Liquidators have not adequately explained why the resolution of the status of the Privileged Documents is an impediment to progressing the public examination process and the litigation of potential claims. In particular, the Interested Persons have pointed to the volume of books and records otherwise made available to the Liquidators. The Giasoumi affidavit, in my view, provides an adequate explanation as to why the Liquidators wish to conduct the public examinations with the benefit of the Privileged Documents (if the Privilege Appeal is dismissed by Justice Attiwill), and why access to the documents is sought prior to initiating any voidable transaction claims under s 588FF of the Act. This is particularly the case in circumstances where I find, on the evidence, that the potential voidable transactions identified by the Liquidators which appear to have resulted in the business and assets of the Company being transferred to related entities while leaving the Company with significant liabilities (including complex debt restructuring, the sale of the Company's online business to a newly created related entity, and the sale of the Property), occurred in the context of the Company's restructure of its business. As identified above, I accept that the Privileged Documents go to the advice sought and provided in respect of the restructuring of the Company's affairs. I am therefore satisfied that it is appropriate for the Liquidators to consider the resolution of the Privilege Claim prior to bringing a claim under s 588FF, and for the public examinations to be similarly postponed given the matters the Liquidators may seek to traverse. 66 While the Interested Persons submitted that the lateness of the Liquidators' application for extension should also be noted (in circumstances where the Liquidators were required to make any extension application by 19 October 2023 and filed this application on 3 October 2023), I accept the Liquidators' submissions that the lateness of the application is appropriately explained by the timing of the Privilege Decision. The Privilege Decision was not handed down until 21 July 2023, with the Privilege Appeal being subsequently filed on 3 August 2023. I accept that it would become evident at such time that the Privileged Documents would not become available for inspection by the Liquidators within the relevant statutory limitation period, and that an application for extension would be required. 67 I also reject the Interested Persons' submissions that the Liquidators' failure to secure further funding after the public examinations has any bearing on whether to grant the relief for an extension of time or not. I accept the Liquidators' submissions that steps to secure additional funding for the prosecution of any voidable transactions should appropriately follow the conduct of the examinations. 68 I am satisfied that the Liquidators have explained the delay resulting in any proposed voidable transaction proceedings not having been commenced within the three-year period provided for by s 588FF of the Act.

Merits of foreshadowed claims 69 I am satisfied on the evidence that the Liquidators' investigations show that from early 2020, a number of transactions took place which resulted in the assets of the Company being transferred to related entities while the Company retained significant liabilities. Those transactions are specifically identified in the Giasoumi Affidavit at paragraphs 86-89. The Giasoumi Affidavit has identified: (a) the context in which the Liquidators consider the restructure of the business occurred, including: (i) the pressures placed on the Kurc Group to reduce its debt to the ANZ in 2019 and the proposed appointment by ANZ of an investigative accountant; (ii) the need for cash to fund redundancies; and (iii) concerns about asset protection, including a stated intention to transfer the Property away from the "main trading entity" to a related entity; and (b) the key transactions of concern to the Liquidators, including: (i) the incorporation of Riot Store to conduct the online business of the Company and the subsequent sale of the online business to Riot Stores; (ii) the transfer of the Property to Soleku which the Liquidators propose may have been undervalued; (iii) the sale of stock by the Company to Riot Stores at what the Liquidators allege was undervalue, and the consignment agreement under which the Liquidators propose the Company took stock back from Riot Store to sell on consignment at a mark-up of between 10-20 percent; (iv) the loan deed and security agreement between the Company and Damiss under which the Liquidators allege that undocumented, unsecured loans were converted to secured debt of approximately $3 million, which was then 'repaid' by the Company to Damiss the day before the Appointment Date. The Liquidators propose that this repayment occurred via a round robin of payments, which ultimately resulted in no funds remaining in the Company bank accounts as at the Appointment Date. 70 The Liquidators' submission is that the practical effect of these transactions is that related parties received significant payments and possession of the Company's assets, but unrelated creditors such as landlords and employees were not paid. 71 The Liquidators' investigations so far indicate that, on their face, these transactions were: (a) creditor-defeating dispositions (under s 588FDB of the Act); (b) unreasonable director-related transactions (under s 588FDA of the Act); (c) uncommercial transactions (under s 588FB of the Act); (d) transactions to avoid employee entitlements (under s 596AC of the Act); and/or (e) breaches of statutory directors' duties (including under ss 180, 181, 182, 183, 588GAB and 588GAC of the Act). 72 Based on my preliminary review of the Liquidators' evidence, I am satisfied that the potential claims identified by the Liquidators in relation to the pre-appointment transactions have sufficient merit to warrant further investigation. 73 In any case, I also accept the Liquidators' submission that the purpose of the extension sought is for the Liquidators to conduct further investigations and statutory examinations to enable the Liquidators to be in a position to determine whether or not to bring claims. In such circumstances, it is not necessary to conduct a preliminary enquiry into the merits of the claims: Walker at [44]; Taylor v Woden Constructions Pty Ltd [1998] FCA 1228 (Finn J).

Prejudice to Interested Persons 74 I accept in exercising discretion on an application such as this, I must consider any prejudice likely to be suffered in the event that the extension of time is granted. Delay in the commencement of the proceedings, consequent upon an extension, will be prejudicial generally to the defendants to the proceeding. I accept, as Ward J described in Clarecastle at [218], the presumptive prejudice resulting from that delay [in the bringing of proceedings] is the deterioration in memory in the time that has elapsed since the transactions that would be the subject of the voidable transaction proceedings if the period for bringing the proceedings were to be extended and the likelihood of that prejudice must be assessed by reference to a greater period of time. 75 However, I also accept the Liquidators' submission that much of the delay in bringing the voidable transaction claims under s 588FF of the Act is as a result of actions taken by some of the interested persons identified in paragraph 4 above (as outlined in more detail in paragraph 29). 76 While Solomon Kurc or Dajomis Pty Ltd have not participated in the Privilege Claim or Privilege Appeal, other members of the Kurc family and Kurc Group were involved in taking steps which have caused delay to the conduct of the public examinations, including the attempts to prevent any public examination of Solomon Kurc. 77 In addition to any general prejudice, the Interested Persons refer to the specific prejudice that Solomon Kurc (and thereby Dajomis Pty Ltd) would suffer as a result of Solomon Kurc's age, health and circumstances. Psychologist Warren Simmons made the following notes based on his psychological assessment of Mr Kurc on 18 December 2023 and 22 January 2024: There was no evidence of difficulties with receptive language… Mr Kurc was socially appropriate and made good eye contact, displaying a range of affect appropriate to the topics under discussion. He was neither restless nor agitated, with speech being normal in rate and rhythm… He did not impress as having an intellectual disability and there was no evidence of disorders of thought or perception. … Mr Kurc was asked to complete the Montreal Cognitive Assessment, a neuropsychological screening tool. Mr Kurc's score on this instrument was 25, one below the cut-off score of 26. In particular, there was no evidence of difficulties with executive function and generally, he did well in all areas except memory, where he could only recall one of five words at the end of the test. … Mr Kurc also completed the DASS, a test which measures depression, anxiety and stress, with Mr Kurc's score of 13 for depression, indicating that he was in the severe range as was his score of 10 for anxiety and a score of 13 for stress. … At the present time, Mr Kurc would struggle to meaningfully participate in a potential public examination due to him experiencing significant levels of depression, anxiety and stress, as well as the Montreal Cognitive Assessment indicating that there is a potential for cognitive impairment. In particular, there were difficulties with memory… Mr Kurc will struggle to provide detailed instructions [to defend court proceedings commenced against him] for the [same] reasons. … There are certainly foreseeable potential risks and effects on Mr Kurc's health [from involvement in a potential public examination and the prospect of being sued by the Liquidators], particularly due to the fact that he is experiencing high levels of anxiety, depression and stress. 78 I accept the Liquidators' submission that the extent of the difficulties with Mr Kurc's memory should be read in the context of Mr Kurc's presentation within the psychologist report that "he did not impress as having an intellectual disability and there was no evidence of disorders of thought or perception". 79 The psychologist's report does not address whether the difficulties are the usual challenges faced by a 79-year-old or something more. I accept that it is generally accepted that elderly persons have some mental decline. That is not the same as a special medical condition that gives rise to unusual or unexpected cognitive impairment: Clarecastle at [223]. It is also relevant that Mr Kurc, irrespective of the outcome of this application for extension, may face potential claims for breaches of directors' duties in which the limitation period is 6 years. Indeed, Mr Kurc may be publicly examined in relation to such claims regardless of the outcome of this extension application and may in any event be a defendant to causes of action with a limitation period of 6 years: Clarecastle at [224]. 80 It is also relevant to note that in relation to the summons issued by the Liquidators to Solomon Kurc, which Mr Kurc initially sought to have set aside, orders were made by consent of the parties for appropriate arrangements to be made in relation to the public examination to help manage Mr Kurc's health issues. These included having the examination take place by way of video link with a support person present, and breaks to minimise the uninterrupted time that Mr Kurc would be required to participate. While I accept that the consent orders in relation to the public examination were made on 29 June 2022, close to two years ago, there is little evidence available to indicate a specific decline in Mr Kurc's position since that time. In my view, based on the material before me, it remains possible for appropriate arrangements to be put in place to ensure Mr Kurc's health issues can be appropriately managed as part of any future voidable transaction claim that may be brought against him by the Liquidators (as was done, by Mr Kurc's consent, in relation to the summons for public examination). 81 I reject the Interested Persons' submission that because Mr Kurc ceased to be director of the Company and Damiss on 17 June 2019 (prior to the pre-appointment transactions identified at [86]-[89] of the Giasoumi Affidavit), and that the Liquidators' evidence does not identify a claim against Solomon Kurc or Dajomis Pty Ltd, that no extension should be granted in respect of Solomon Kurc or Dajomis Pty Ltd. Mr Kurc remained as a shareholder of the Company until it was wound up and passed the resolution for its winding up. In addition: (a) the Liquidators propose that on 18 October 2020, Mr Kurc was involved in the 'round robin' of payments that allegedly extinguished the related party debts owed to the Company; (b) the Liquidators also propose that debts to the Elster Avenue Property Trust, of which Mr Kurc was a trustee, were extinguished as part of payments made by the Company in the days before the appointment of the Liquidators; (c) at all material times, Mr Kurc owned one of the two shares in the Company (with the other share being owned by his wife); and (d) Mr Kurc was the director of Kurc IP Pty Ltd which was incorporated in or about May 2020. The Liquidators understand that Kurc IP Pty Ltd was established to hold the intellectual property of the Company to then license it back to the Company. 82 I accept the Liquidators' submission that there is evidence that Mr Kurc was part of the transactions that took place in 2020 immediately prior to the winding up of the Company. Therefore, although the Liquidators' evidence has not directly identified a claim against Solomon Kurc or Dajomis Pty Ltd, I accept that it is appropriate for the Liquidators to make a determination as to whether any such claims are available and should be brought, following the resolution of the Privilege Appeal. I therefore do not propose to exclude the Interested Persons from any such extension granted in respect of this application. 83 To the extent that Solomon Kurc (and thereby Dajomis Pty Ltd) will suffer prejudice arising from the extension relief, in my view it is not excessive or incapable of being managed, such that when it is balanced against other factors such as the prejudice to creditors if an extension of time is not granted, it remains appropriate for any extension of time to be extended to include Solomon Kurc and Dajomis Pty Ltd.

Shelf order is justified in the circumstances 84 I am satisfied on the evidence that a shelf-order is justified in all the circumstances as the Liquidators, by virtue of the Privilege Claim and the subsequent Privilege Appeal, have been prevented from inspecting documents which may assist them in identifying claims and further parties against whom claims may be made. This remains the case, notwithstanding the fact that the Liquidators have identified, with some particularity, specific transactions warranting further investigation and the prospective claims and defendants relevant to those transactions. 85 The documents which the Liquidators have been prevented from inspecting go to the advice sought and provided in respect of the restructuring of the Company's business. It is in this context that the pre-appointment transactions were conducted, and in this context that the Liquidators may identify further claims or transactions that are available. There exists the possibility that further voidable transactions may be discovered during the course of the public examinations or further investigations which have not yet been completed by the Liquidators. This is a factor supporting the grant of a shelf-order: Lucas in the matter of Filestock Pty Ltd (in liq) [2017] FCA 1425 at [17] (Derrington J). 86 The prejudice which may arise from the making of a shelf order should also be considered in the context of the transactions that are the subject of the Liquidators' investigations. In particular, it is of note that the Liquidators' concerns relate primarily to related party transactions which, the Liquidators submit, involved the assets of the Company being transferred to related entities while leaving the Company with significant liabilities. Given the above, I am satisfied that a shelf-order, as sought by the Liquidators, is justified in all of the circumstances.

Extension period 87 Having determined that it is appropriate in the circumstances to make a shelf order, the remaining determination is the period of extension that is appropriate. The Liquidators seek an extension period of approximately 18 months to 19 April 2025, submitting that this extension period will enable the Privilege Appeal to be resolved, examinations to take place, additional material and evidence to be reviewed, additional funding secured, and ultimately, for any proceedings to be issued. 88 In light of the steps required to be undertaken by the Liquidators prior to being in a position to bring any voidable transaction claims under s 588FF, I am satisfied that it is fair and just in all of the circumstances to grant the 18-month extension sought by the Liquidators, despite the prejudice that will be suffered by the Interested Persons. In coming to this determination, it is of particular relevance that Attiwill J's decision in relation to the Privilege Appeal remains reserved. Although the Liquidators have a degree of control regarding the speed in which the remaining steps can be pursued prior to issuing any proceedings (noting that, to a degree, the steps will be impacted by factors such as court availability for public examinations, or the availability of funding), the Liquidators have effectively no control when the Privilege Appeal will be resolved. This is particularly noted in circumstances where the original decision on the Privilege Claim was handed down some 10 months after being heard. It is also relevant to note that of the 18-month extension period sought by the Liquidators, approximately six months have already passed, leaving in effect, approximately 12 months for any voidable transaction claims to be brought. In these circumstances, and where the Liquidators' next steps in bringing any voidable transaction claims largely hinge upon the outcome of the Privilege Appeal, I am satisfied that it is appropriate to provide the full 18-month extension period sought by the Liquidators. I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson.