Fundit Limited as Trustee of ATF Banjo Small Business Loan Fund v Jonesys Earthworx Pty Ltd

court means any court.

Court means any of the following courts:

1. the Federal Court;

2. the Supreme Court of a State or Territory;

3. the Federal Circuit and Family Court of Australia (Division 1);

4. a court to which section 41 of the Family Law Act 1975 applies because of a Proclamation made under subsection 41(2) of that Act.

5. Except where there is a clear expression of a contrary intention (for example, by use of the expression "the Court"), proceedings in relation to a matter under this Act may, subject to Part 9.6A, be brought in any court.

1. The power under s 471B of the Corporations Act is conferred on the "Court" and not the "court", which is defined to mean one of the named Superior courts mentioned in s 58AA. The Federal Circuit and Family Court of Australia (Division 2) (FCFCOA (Div 2)) is not a "Court" within the meaning of s 58AA of the Corporations Act.
2. Neither Part 9.6A of the Corporations Act, nor any other provision of the Corporations Act confers jurisdiction on the FCFCOA (Div 2).
3. While there is no express conferral of jurisdiction on the FCFCOA (Div 2) with respect to matters under the Corporations Act, including the power to grant of leave under s 471B of the Corporations Act, a question arises as to whether the court has associated jurisdiction to make orders under that section.

Whether notice under s 78B of the Judiciary Act 1903 (Cth) is required

1. Because of comments in FJE20 v Minister for Home Affairs and Others[11] (FJE20) and F Firm v Ruane,[12] I have given consideration to the question of whether the application involves a matter arising under the Constitution or its interpretation so as to trigger the notice obligation in s 78B of the Judiciary Act 1903 (Cth) (Judiciary Act).
2. One question that might involve interpretation of the Constitution is whether the application for leave under s 471B of the Corporations Act is a "matter" for the purposes of ss 75 or 76 of the Constitution. However, s 78B of the Judiciary Act "does not impose on the Court a duty not to proceed pending the issue of a notice no matter how trivial, unarguable or concluded the constitutional point may be".[13] The broader question of what is a "matter" for the purposes of those sections is one that is the subject of extensive judicial consideration including by the High Court.[14] I am not satisfied that the attempt to invoke associated jurisdiction in this case relevantly involves a matter arising under the Constitution or its interpretation.[15]
3. If I am wrong in my conclusion concerning s 78B(1) of the Judiciary Act, I note that the relief sought is "urgent relief of an interlocutory nature" in circumstances where the Applicant is seeking to recover Vehicles to which it claims an immediate right to possession and those vehicles are not in the possession of the Liquidator.[16] The word "urgent" in this context must be assessed against the time it would take to notify the Attorneys General and allow for intervention.

Associated Jurisdiction of the FCFCOA (Div 2)

1. Section 134 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) provides:

To the extent that the Constitution permits, jurisdiction is conferred on the Federal Circuit and Family Court of Australia (Division 2) in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) is invoked.

1. In An Introduction to the Jurisdiction of the Federal Court of Australia,[17] Allsop J (as his His Honour was then), writing extra-judicially explained associated jurisdiction in these terms:

Though related, in a sense, to the question of the extent of the controversy or "accrued" jurisdiction, s 32 provides for a conferral of jurisdiction in other federal matters not otherwise conferred, but available to be conferred, if there is conferral of some jurisdiction. Thus, if there is conferral by Commonwealth statute X of some federal jurisdiction, and jurisdiction under topic Y could be conferred on the Federal Court (by reference to ss 75 and 76 of the Constitution) but has not been so conferred and it is associated with the matter conferred by statute X, s 32 confers jurisdiction on the Court in respect of topic Y for the disposition this controversy.

1. In Rana v Google Inc,[18] Allsop CJ, Besanko and White JJ explained the nature of the "associated jurisdiction" and its distinction from "accrued jurisdiction":[19]

In the context of this appeal, something should be said about two other aspects of this Court's jurisdiction. First, the "associated jurisdiction" conferred under s 32 of the Federal Court of Australia Act is not concerned with the conferral of jurisdiction to determine non-federal matters that are said to be associated with a federal matter: see Lindell G, Cowen and Zines's Federal Jurisdiction in Australia (4th ed, Federation Press, 2016) at 200. It is not a synonym for "accrued" jurisdiction. The effect of s 32 is to confer jurisdiction to deal with a federal matter for which jurisdiction has not been conferred upon the Court where it is associated with another federal matter for which jurisdiction has been so conferred...

1. In FJE20, Allsop CJ, Mortimer and S C Derrington JJ considered whether the Federal Circuit Court (FCC) (a precursor to the FCFCOA (Div 2)) had jurisdiction to determine a common law claim for damages for a negligence claim in respect of the applicant's detention. At first instance, the primary judge held that the FCC had neither "accrued" nor "associated" jurisdiction to hear the negligence claim. The Full Court upheld the appeal on other grounds without needing to resolve the correctness of the primary judge's decision on this matter. The Court suggested that the parties consider transferring the matter from the FCC to the Federal Court, which would have removed the need to resolve the jurisdictional question.
2. In Turner v Owen,[20] Pincus J noted[21] that associated jurisdiction was not discretionary because the court had a positive obligation to exercise jurisdiction granted.[22]
3. Four questions arise in relation to s 134 of the FCFCOA Act:

(1) Is the Applicant's application for relief a matter in which the jurisdiction of the FCFCOA (Div 2) is invoked (PPSA Matter)?

(2) Is the application for leave under s 471B of the Corporations Act a matter or part of a matter not otherwise within the jurisdiction of the FCFCOA (471B Matter)?

(3) Is the 471B Matter "associated with" the PPSA Matter?

(4) Is the associated jurisdiction of the FCFCOA (Div 2) excluded in the case of power or jurisdiction conferred on a "Court" as defined in s 58AA of the Corporations Act including the power to grant leave under s 471B?

Jurisdiction of the FCFCOA (Div 2) in the PPSA Matter

1. Section 207 of the PPSA confers jurisdiction on the FCFCOA (Div 2) under the PPSA, subject to a monetary limit of $750,000.
2. Section 123(1) of the PPSA provides:

Secured party may seize collateral

1. A secured party may seize collateral, by a method permitted by law, if the debtor is in default under the security agreement.

1. In Riseley v Toyota Finance Australia Ltd,[23] (Risley) Besanko J stated:

As I have said, I raised the question of the power of the Federal Circuit Court to make the orders with the solicitor for Toyota Finance. I did so because the first order of the Federal Circuit Court states that it was made pursuant to s 123 of the Act. That section provides, relevantly:

1. A secured party may seize collateral, by any method permitted by law, if the debtor is in default under the security agreement.

On the face of it, this section gives the secured party a right which it may exercise, not power or jurisdiction to the Court.

Section 206 of the Act provides that Part 6.2 deals with the jurisdiction of a court with respect to a matter (a PPS matter) arising under a provision of this Act authorising an application to be made to a court; or otherwise arising in relation to this Act; or otherwise arising in relation to a security agreement or a security interest. By reason of s 207, jurisdiction with respect to a PPS matter is conferred on the Federal Circuit Court subject to the limit of the Court's jurisdiction in terms of an award not exceeding $750,000 or such other amount as may be prescribed by regulations. Section 10 defines a PPS matter as having the meaning given by s 206 of the Act.

Toyota Finance referred to the decision of the Supreme Court of New South Wales in Bank of Queensland Limited v Star Trek Pty Ltd [2019] NSWSC 1712 (Bank of Queensland v Star Trek) in which Adamson J said that there was support for a secured party who falls within s 123 approaching the Court to obtain authority from the Court that its methods are unquestionably "permitted by law" within the meaning of s 123. Justice Adamson considered that there was support for the bank's approach in Duggan A and Brown D, Australian Personal Property Securities Law (2nd ed, 2016, LexisNexis Butterworths) at [12.36]. In the circumstances, her Honour considered that the secured creditor in that case had established a right to declarations in property and an entitlement to seize property. In this case, declarations were not actually made by the Federal Circuit Court, but it seems that declarations could have been made following the authority of Bank of Queensland v Star Trek. Justice Adamson went on to say that where it was necessary to gain entry and access to property for the purposes of seizing it, the debtor could be restrained from preventing the secured party from doing those acts. Her Honour said (at [18]):

I regard these orders as appropriate ancillary orders to permit the Bank to enforce its security, to require Star Trek to allow this to occur and to require the Trustee to grant entry and access to the Matraville property for that purpose.

I consider the orders made in this case to be in the nature of orders which follow from declarations that could have been made by the Court had they been sought. A similar approach has been adopted in other cases: BOQ Credit Pty Ltd v Chatah [2017] NSWSC 1444; P_orter Equipment Australia Pty Ltd & anor v Barton Ventures Pty Ltd & anor_; Porter Equipment Australia Pty Ltd v Tyremil Pty Ltd & ors [2018] QDC 87. In the circumstances, it seems that there was power to make the order.

1. The Applicant's application for declarations in property and an entitlement to seize property consistently with s 123(1) of the PPSA and for ancillary relief is a matter that is within the jurisdiction of the FCFCOA (Div 2).

Whether the 471B matter is not otherwise within jurisdiction

1. There is no express conferral of jurisdiction on the FCFCOA (Div 2) found in Part 9.6A of the Corporations Act. Further, the power under s 471B of the Corporations Act is conferred on the "Court" (as defined in s 58AA of the Corporations Act), which is expressed in terms that do not include the FCFCOA (Div 2). The s 471B Matter is a matter not otherwise within the jurisdiction of the FCFCOA (Div 2).

Whether the 471B Matter is "associated with" the PPSA Matter

1. The starting point for this question involves characterisation of each of the relevant "matters" for the purpose of the application of s 134 of the FCFCOA Act.
2. In Citta Hobart Pty Ltd v Cawthorn,[24] Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ stated:[25]

A "matter" referred to in s 75 or s 76 of the Constitution encompasses a justiciable controversy about a legal right or legal duty having an existence that is not dependent on the commencement of a proceeding in the forum in which that controversy might come to be adjudicated. Amongst the circumstances in which a justiciable controversy answers the description in s 76(ii) of a matter "arising under" a law made by the Commonwealth Parliament is where a Commonwealth law is relied on as the source of a claim or a defence that is asserted in the course of the controversy. And amongst the circumstances in which a justiciable controversy answers the description in s 76(i) of a matter "arising under" the Constitution is where the invalidity or inoperability of a Commonwealth or State law is asserted in the course of the controversy in reliance on the Constitution . In each case, the assertion operates to characterise the totality of the justiciable controversy and continues to characterise the totality of the justiciable controversy even where the assertion is later resolved in the exercise of judicial power or even withdrawn.

1. The question of "[w]hat is and what is not part of the one controversy depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships".[26] Unlike the "accrued jurisdiction", it is unnecessary for the two matters here to be part of the same "matter";[27] it is sufficient for the separate matters to be "associated".
2. In Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd,[28] Barwick CJ held that "the word 'associated' [in s 32 of the FCA Act] embraces matters which may be disparate from each other".
3. In PCS Operations Pty Ltd v Maritime Union of Australia,[29] Gaudron J held that the question of whether the conspiracy claims were associated with claims alleging breaches and contraventions of the Workplace Relations Act 1999 (Cth) and the Corporations Act "involves no more than a question of practical judgment".
4. Applying "practical judgment", I consider that the 471B Matter and the PPSA Matter, while "disparate from each other" are sufficiently connected so as to be "associated matters" for the purpose of s 134 of the FCFCOA Act. The relevant connection is provided for by the identity of the parties, the fact of the Respondent's winding up, and a significant aspect of each of the proceedings concerns the effect of the Respondent's winding up on litigation.[30] This conclusion is consistent with the approach taken in both Donnola v Silverleaf Constructions Co Pty Ltd (No 2),[31] (Donnola), Wilkie v Mobile Pipe Solutions Ltd,[32] (Wilkie) and Self Care Corporation Pty Ltd v Green Forest International Pty Ltd (No 17)[33] (Self Care).

Is the associated jurisdiction of the FCFCOA (Div 2) excluded

1. The next question is whether the jurisdiction conferred on a "Court" by Part 9.6 of the Corporations Act is, by reason of s 58AA, exclusive so as to prevent it from being picked up by s 134 of the FCFCOA Act as part of the associated jurisdiction of the FCFCOA (Div 2).
2. In Shergold v Tanner,[34] (Shergold) Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ stated:

A law of the Commonwealth is not to be interpreted as withdrawing or limiting a conferral of jurisdiction unless the implication appears clearly and unmistakably.

(Emphasis added) (Footnotes omitted)

1. In Ogawa v Federal Magistrate Phipps,[35] (Ogawa) Finkelstein J stated:[36]

By Ch III of the Constitution, federal Parliament is given power to create federal courts and to invest them with federal jurisdiction, including jurisdiction which is exclusive of the jurisdiction of other federal courts.

...

Parliament has laid down that the Federal Magistrates Court is precluded from exercising jurisdiction in a matter arising under any part of the Trade Practices Act apart from a matter under Pt V. This is so whether or not an action in respect of that mater has begun in the Federal Court. Moreover, it would subvert Parliament's intention if one were to accept the University's contention that s 18 of the Federal Magistrates Court Act (the "associated jurisdiction" provision) has the effect of giving to the Federal Magistrates Court jurisdiction over a federal claim that is within the exclusive jurisdiction of the Federal Court. In my view whatever claims may be picked up as part of the Federal Magistrates Court's associated jurisdiction they do not include claims that are within the exclusive jurisdiction of another federal court.

(Emphasis added)

1. The provision conferring jurisdiction on the Federal Court under consideration in Ogawa was s 86(1) of the Trade Practices Act 1974 (Cth) (now repealed) (Trade Practices Act) which provided that its jurisdiction was "exclusive of the jurisdiction of any other court other than: (a) the jurisdiction of the Federal Magistrates Court under subsection (1A)" (Emphasis added).
2. In Rhind v Deliveroo Australia Pty Ltd (Administrators Appointed),[37] Judge WJ Neville noted that an application for leave under s 440D of the Corporations Act would need to be brought in a Superior Court because of the terms of s 58AA. His Honour did not need to consider the question because it was tacitly accepted by the parties that leave could not be given by the FCFCOA (Div 2). No argument was advanced or considered concerning the associated jurisdiction of the court.
3. In Zemin & Kaba (No 2),[38] Judge Street transferred a Family Law proceeding to the FCFCOA (Div 1) so that orders could be made under s 601AH of the Corporations Act reinstating a company on the basis that the FCFCOA (Div 2) did not have power under that section. No argument was advanced or considered concerning the associated jurisdiction of the court.
4. In Donnola, Judge Manousaridis held that the FCFCOA (Div 2) has associated jurisdiction to make orders granting leave under s 500(2) of the Corporations Act. Section 500(2) provides that after the passing of a resolution for voluntary winding up, "no action or other civil proceeding is to be proceeded with or commenced against the company except by leave of the Court". His Honour held that:

For s 58AA of the Corporations Act to impliedly exclude the application of s 134 of the FCFC Act to matters arising under the Corporations Act, there must be something in the text of s 58AA, or in the statutory context in which s 58AA appears, that unmistakably manifests an intention that matters arising under the Corporations Act must not be dealt with as part of a single controversy that involves one or more other matters that is or are before a (federal) court that does not otherwise have jurisdiction in relation to a matter arising under the Corporations Act. No such intention is manifested, either by the text of s 58AA of the Corporations Act, or by the statutory context in which s 58AA appears.

1. In Walker (Administrator), in the matter of Childcare Development Opportunities Pty Ltd,[39] Stewart J referred to the decision in Donnola, noting that it "may be that" the FCFCOA (Div 2) could exercise jurisdiction conferred on the FCFCOA (Div 1) by s 1337C(1) of the Corporations Act, but there was "some uncertainty to that".
2. In Wilkie, Judge Ladhams followed Donnola in holding that the FCFCOA (Div 2) had associated jurisdiction to grant leave under s 471B of the Corporations Act.
3. In Macmartin v Bunnings Group Ltd,[40] (Macmartin) Judge Champion held that the applicant's whistleblower claims made under Part 9.4AAA of the Corporations Act were within the associated jurisdiction of the FCFCOA (Div 2). But the provisions under consideration were not ones reserved to a "Court" within the meaning of s 58AA.

In the absence, however, of a provision of the Corporations Act expressly or by clear and unmistakeable implication excluding the jurisdiction of the court there is no reason to interpret the relevant provisions of Part 9.6A as mandating an interpretation that the associated jurisdiction of this court under s. 134 of the FCFCOA Act is to be read down so as to preclude this court having associated jurisdiction as to a Part 9.4AAA claim. As Allsop J said in Macteldir the "associated jurisdiction under [s. 134] is the conferral of jurisdiction in another, different, federal matter, in respect of which jurisdiction could be, but has not been, conferred". The "associated" matter may be disparate from the matter in which jurisdiction is regularly invoked.

1. In Self Care, Judge Cameron expressed disagreement with Donnola, stating:

The issue therefore is what effect s.58AA of the Corporations Act may have on this Court's associated jurisdiction over Corporations Act matters. Should this Court's associated jurisdiction to decide Corporations Act matters be engaged, it is ostensibly a plenary one because, unlike the courts referred to in pt.9.6A of the Corporations Act, its jurisdiction is not defined other than by the relevantly unqualified terms of s.134 of the FCFCOA Act. However, s.58AA of the Corporations Act purports to reserve jurisdiction over certain matters under that Act to those courts within its definition "Court" of which this Court is not one: Re Hot Frog Pty Ltd (No 2). Section 134 of the FCFCOA Act, the subsequent and more general provision touching on jurisdiction, and s.58AA of the Corporations Act, the earlier and more specific provision touching on jurisdiction, are therefore in conflict. In relation to such situations, in a passage later cited in Firebird Global Master Fund II Ltd v Republic of Nauru [2015] HCA 43; (2015) 258 CLR 31 at 60 [85], Barton ACJ said in Maybury v Plowman [1913] HCA 43; (1913) 16 CLR 468:

... The judgment under appeal turns upon the application of the principle involved in the maxim "generalia specialibus non derogant" to cases in which the legislature, after having dealt specially with a particular matter, has afterwards passed an enactment in general terms wide enough to repeal, or supersede, or qualify the original provision. ... I wish to quote a passage from the judgment of Wood V.C. in Fitzgerald v. Champneys, quoted by Stirling J. in the case cited, as follows: - "The reason in all these cases is clear. In passing the special Act, the legislature had their attention directed to the special case which the Act was meant to meet, and considered and provided for all the circumstance of that special case; and, having so done, they are not to be considered by a general enactment passed subsequently, and making no mention of any such intention, to have intended to derogate from that which, by their own special Act, they had thus carefully supervised and regulated." (at 473-474). (references omitted)

In all cases it is a matter of comparing the language of the two provisions to see whether the later has, to the extent the provisions are in conflict, repealed the earlier. I find nothing in the text of s.134 of the FCFCOA Act, to suggest that the present is such a case.

In Corporations Act proceedings where jurisdiction is not reserved to the courts falling within s.58AA's definition "Court", such as Macmartin v Bunnings Group Ltd [2025] FedCFamC2G 832, this Court's associated jurisdiction to decide mattes under the Corporations Act is not relevantly restricted. However, in other matters, which are to be dealt with by a "Court", such as s.500, s.58AA does restrict it. The present matter is such a one because Self Care seeks from this Court a grant of leave under s.500 of the Corporations Act. Consequently, although the application for leave under s.500 of the Corporations Act is associated with other Federal matters in this proceeding, by reason of s.58AA(2) of that Act, this Court has no jurisdiction to deal with it.

1. As framed by Judge Cameron, the issue is what effect s 134 of the FCFCOA Act has on jurisdiction in Corporations Act matters, and whether the enactment of s 134 was intended to derogate from the earlier specific enactment (s 58AA of the Corporations Act); each of which can be traced back to earlier provisions without altering the order of enactment.[41]
2. With great respect, I am unable to agree with Judge Cameron's analysis that s 58AA of the Corporations Act and s 134 of the FCFCOA Act are in conflict. Jurisdiction is conferred on courts other than the FCFCOA (Div 2) by Part 9.6A of the Corporations Act, including the Federal Court, State and Territory Supreme Courts, the FCFCOA (Div 1) and State Family Courts, and State and Territory lower courts.
3. The Constitution permits federal jurisdiction to be conferred on federal courts. Federal jurisdiction may be conferred "including jurisdiction which is exclusive of other federal courts".[42] Federal jurisdiction is "the authority to adjudicate derived from the Commonwealth Constitution and laws".[43] It is attracted by subject matter, identity of parties or the nature of relief sought.[44]
4. Sections 1337B of the Corporations Act confers jurisdiction on the Federal Court of Australia with respect to civil matters arising under the Corporations Act. Section 1337C of the Corporations Act confers jurisdiction on the FCFCOA (Div 1) with respect to civil matters arising under the Corporations Act. The jurisdiction so conferred is "federal jurisdiction".[45]
5. Section 134 of the FCFCOA Act commences by providing that to the extent that the Constitution permits, jurisdiction is conferred on the FCFCOA (Div 2) in respect of matters not otherwise within its jurisdiction.
6. As Judge Cameron identifies, s 58AA of the Corporations Act is not a provision which confers jurisdiction. Section 58AA is concerned with specifying which court(s) may exercise particular jurisdiction under the Corporations Act, or to put it another way s 58AA "is definitional rather than jurisdictional".[46] The definitions "Court" or "court" are used as the mechanism for demarcation of jurisdiction between courts for which jurisdiction is expressly provided in the Corporations Act.
7. In Edensor, Gleeson CJ, Gaudron and Gummow JJ said of s 58AA of the Corporations Law at a time when the purported conferral of jurisdiction upon the Federal Court in respect of civil matters arising purely under the Law by the cooperative scheme embodied by the Law had been held to be invalid by Re Wakim, Ex parte McNally[47] (Wakim):[48]

The significance for the present litigation of the definition of "Court" in s 58AA(1) was solely in distinguishing those courts which, as confirmed by s 58AA(3), had jurisdiction in relation to matters under the Corporations Law of Victoria, being the jurisdiction dealt with in Pt 9 of the Victorian Corporations Act. Nothing in s 58AA conferred jurisdiction. Nor did it impliedly amend the text of Pt 9 so as to produce "the need to conflate the two texts to arrive at the combined legal meaning". Rather, s 58AA assumes the full operation of Pt 9. The provision was a somewhat tortuous means of directing the attention of the reader of the Corporations Law of Victoria to the consequences of the conferral of jurisdiction by Pt 9 of the Corporations Law of Victoria.

One evident purpose of Pt 9 (and its analogues) was, so far as possible, to ensure that the jurisdiction in corporations matters arising under the laws of any State or Territory could be exercised by the appropriate courts of every State and Territory and by the Federal Court and the Family Court of Australia...

(Emphasis added) (Footnotes omitted)

1. Section 58AA of the Corporations Act is limited in its terms to courts that are identified in Part 9.6A of the Corporations Act. It says nothing about courts other than those courts. It does not purport to grant "exclusive jurisdiction" to the "Court" in the way of a provision like s 86(1) of the Trade Practices Act which was considered in Ogawa. While I accept that s 58AA qualifies the generality of Part 9.6A, I cannot discern an intention to exclude courts other than "courts" (i.e. State and Territory lower courts) exercising jurisdiction conferred on "Courts" as defined in s 58AA of the Corporations Act.
2. The strongest indication of exclusive jurisdiction that I have found in the Corporations Act is the definition "superior court matter" which means "a civil matter that the Corporations Law clearly intends (for example, by use of the expression 'the Court') to be dealt with only by a superior court."[49] (Emphasis added). However, I consider that this does no more than describe the division of jurisdiction that is conferred by Part 9.6A of the Corporations Act. The only instance of that defined term is found in s 1337E of the Corporations Act, when describing the jurisdiction of lower courts (as defined).
3. I do not consider that the extrinsic material in Self Care at [12] sheds light on the present question. The FCFCOA (Div 2) is neither a lower court for the purposes of the definition "court" nor a superior court for the purpose of the definition "Court". To the extent that the discussion in the explanatory memorandum evidenced an intention to confine the jurisdiction of lower courts, read in the context of the terms of the Corporations Legislation Amendment Bill 1994 (Cth), that intention was directed to inferior State and Territory courts. The explanatory memorandum explained the operation of s 58AA using the language that was ultimately employed in the Corporations Law (then Corporations Act), which defines "lower court" to mean "a court of a State or Territory that is not a superior court".[50]
4. Further, the counter-factual considered in In the Marriage of Smith,[51] (Smith) and referred to in Self Care does not, in my opinion, resolve the present question. The counter-factual concerned the question of whether, if the Family Court had assumed accrued jurisdiction, it could have exercised a power given to the "Court" under State legislation (the Family Provision Act 1982 (NSW)). The passage extracted from the decision of Mason, Brennan and Deane JJ at [24] was to the effect that it was impossible to read the reference to "Court" in the State legislation otherwise than as a reference to the Supreme Court. The analogy sought to be drawn in Self Care is that "Court" in s 58AA of the Corporations Act could not include the FCFCOA (Div 2) because it is not included in that definition.
5. A critical point of distinction between Self Care (and the present case and Donnola) and Smith is that the Corporations Act jurisdiction sought to be applied by s 134 of the FCCOA Act is federal and not State jurisdiction, as was the case in Smith.
6. In Edensor, Gleeson CJ, Gaudron and Gummow JJ rejected a submission that an order made by Merkel J under ss 737 and 739 of the Corporations Law (which was relevantly implemented by State legislation) had a purely State operation when considered as part of a matter:

It should be emphasised that the law of a State cannot withdraw from this Court federal jurisdiction conferred by s 75 of the Constitution, nor the federal jurisdiction which a court (State or federal) otherwise may exercise under a conferral or investment of jurisdiction by a law made under s 76 or s 77 of the Constitution; nor may a State law otherwise limit the exercise of federal jurisdiction. These propositions were recognised (as established authority required) by Gibbs CJ, Wilson and Dawson JJ in Smith v Smith. Their Honours, however, construed the State law relevant in that case, s 31 of the Family Provision Act 1982 (NSW), as one making the efficacy of an agreement depend upon approval by the State Supreme Court; it was as if, absent a seal or stamp, "the agreement is not effective, whether it is sought to be enforced in a State court or in a federal court". Mason, Brennan and Deane JJ pointed out that the effect of s 31 was to qualify the pre-existing prohibition against contracting out of certain statutory benefits and s 31 laid down a precondition to the rendering effective of an agreement to contract out. It followed that the Family Court in the course of its exercise of federal jurisdiction to approve a maintenance agreement in substitution for rights under the Family Law Act 1975 (Cth) had no power to approve a release of rights under the State law; an application for curial approval under s 31 was not a justiciable controversy but a condition precedent to a binding contract.

The reasoning in Smith v Smith is inapplicable to the present litigation. Sections 737 and 739 of the Corporations Law, the remedial provisions relied upon for order 7 made by Merkel J, contemplated the exercise of federal jurisdiction. The legislature of Victoria did so by the inclusion of ASIC among the class of applicants for relief under those provisions This means that, contrary to the apparent basis upon which the reasoning of the Full Court proceeded, these provisions could never have had a "pure" State operation.

(Footnotes omitted) (Emphasis added)

1. Their Honours also rejected a contention that following Re Wakim, the word "Court" in the remedial provisions could not be read as including, as a matter of the law of Victoria, the Federal Court.[52] They noted that it was well established from decisions in relation to s 79 of the Judiciary Act that "a State statute may be applicable as a source of rights and remedies in federal jurisdiction even though, on its own terms, that law identifies only the courts of the enacting State as the courts to provide those remedies".[53] They concluded that seised as it was of jurisdiction in the matter, the Federal Court did not lack power to make the orders.[54]
2. As Judge Champion observed in Macmartin, unlike Ogawa, "there is no preclusionary provision in Part 9.6A of the Corporations Act". Section 58AA is, for the reasons I have stated, not such a provision. Further, it is a principle of construction that a provision conferring jurisdiction such as s 134 of the FCFCOA Act should not be read down "by making implications or imposing limitations which are not found in the express words" (Emphasis added).[55]
3. The central question of construction is whether Parliament when enacting s 58AA of the Corporations Act intended to limit jurisdiction under powers conferred on "Courts" such that it was not able to be exercised by "lower courts" as defined, or lower courts generally. The "implication appears clearly and unmistakably"[56] in respect of the former proposition, but not the latter. The express words limit the jurisdiction of "lower courts" as defined, but not otherwise. It follows that I do not consider there to be conflict between s 58AA of the Corporations Act and s 134 of the FCFCOA Act.
4. Given that I am confronted with conflicting decisions in Donnola and Wilkie, on the one hand, and Self Care on the other, by analogy with the principle applicable where there are conflicting appellate authorities, I should follow the "more convincing" decision.[57] For the reasons that I have set out above, in my overall assessment I consider that the decisions in Donnola and Wilkie are "more convincing", and therefore ought to be followed. In my opinion, the FCFCOA (Div 2) is seised of jurisdiction in the 471B Matter because it is associated with the PPSA Matter, which is a matter within jurisdiction. Further, I do not consider that the jurisdiction is excluded or limited by Part 9.6A or s 58AA of the Corporations Act. The FCFCOA (Div 2) has jurisdiction and power to grant relief under s 471B of the Corporations Act in this case as part of its associated jurisdiction.
5. The exercise of the jurisdiction that the FCFCOA (Div 2) possesses is not discretionary.[58] Courts have the duty and authority to decide, "in the sense of forming an opinion about"[59] their jurisdiction, and a duty to exercise jurisdiction properly invoked.[60] I do not consider that this is an appropriate case for transfer of proceedings to the Federal Court.[61] Such a course would simply circumvent rather than resolve the jurisdictional question that is raised by the application for relief under the Corporations Act. If such a course were correct, logically it should be followed in every case in the FCFCOA (Div 2) where a party sought the exercise of accrued jurisdiction that is conferred on "Courts" under the Corporations Act. I consider that it is in the interest of the administration of justice that the jurisdictional question be determined rather than avoided. Having concluded that the FCFCOA (Div 2) has jurisdiction, that jurisdiction must be exercised.

Whether leave under s 471B should be granted

1. In Fair Work Ombudsman v Sushi Bay Pty Ltd,[62] Wigney J stated:

Section 471B of the Corporations Act provides as follows:

While a company is being wound up in insolvency or by the Court, or a provisional liquidator is acting, a person cannot begin or proceed with:

1. a proceeding in a court against the company or in relation to property of the company; or

b. enforcement process in relation to such property;

except with the leave of the Court and in accordance with such terms (if any) as the Court imposes.

As can readily be seen, s 471B does not identify the principles that are to be applied in determining whether leave to proceed should be granted. Nor does it identify the considerations that must, or must not, be taken into account. The relevant principles have, however, been discussed in a number of decisions in this and other courts in respect of s 471B and cognate leave to proceed provisions: see, for example Re Gordon Grant & Grant Pty Ltd (1983) 7 ACLR 669; [1983] 2 Qd R 314 at 315 - 317; Vagrand Pty Ltd (In Liq) v Fielding [1993] FCA 179; (1993) 41 FCR 550 at 554 - 555; Eopply New Energy Technology Co Ltd v EP Solar Pty Ltd [2013] FCA 356 at [22]; Executive Director of the Department of Conservation and Land Management v Ringfab Environmental Structures Pty Ltd [1997] FCA 1484; Rushleigh Services Pty Ltd v Forge Group Ltd (In Liq) [2016] FCA 1471 at [14] - [18]; Australian Competition and Consumer Commission v Australian Institute of Professional Education Pty Ltd (in liq) [2017] FCA 521 at [22] - [26] (ACCC v AIPE).

The key principles may be summarised as follows.

First, a decision granting or refusing leave to proceed against a corporation in liquidation involves the exercise of a discretion which must be exercised judicially.

Second, the purpose of having a requirement for leave is to prevent a corporation in liquidation being subjected to actions that may be expensive and carried on at the expense of the creditors of the company, perhaps unnecessarily.

Third, in determining whether leave should be granted, the Court considers whether the balance of convenience lies in allowing the applicant to proceed by pursuing a proceeding to judgment, or whether the applicant should be left to pursue his or her claim by lodging a proof of debt with the liquidator. The onus is on the applicant to demonstrate why it is more appropriate to pursue the claim in question by way of legal proceedings.

Fourth, for leave to be granted, it must be shown that there is a serious or substantial question to be tried and a real dispute between the parties. Leave will not be granted where the applicant does not demonstrate that the claim is genuine or where the proceedings would be futile.

1. Leave can be granted under s 471B of the Corporations Act now for then (i.e. have effect from an earlier date such as commencement of the proceedings).[63]
2. In my opinion it is appropriate to grant leave to the Applicant, now for then, to commence and continue these proceedings having regard to the following:

(a) the Application would appear to be based on genuine and arguable grounds;

(b) the grant of leave would not subject to the Respondent and its Liquidator to expensive legal proceedings and actions at the expense of creditors of the Respondent, noting that the Liquidator does not dispute the Applicant's claim to a 'security interest' in the Vehicles and does not propose to contest the relief being sought;

(c) the proceedings relate to the enforcement of a perfected 'security interest' which means that the proceeding does not concern a claim in respect of an ordinary unsecured interest that ought to be dealt with by the Liquidator under the proof of debt provisions of the Corporations Act;

(d) having regard to the nature of the Applicant's claims, including its claimed rights under s 123(1) of the PPSA and under the loan agreements, it is appropriate that the Applicant continue these proceedings rather than proceed without the imprimatur of the court; and

(e) while the Liquidator has disclaimed the Vehicles, some of the relief that the Applicant seeks affects the rights and interests of the Respondent, for example, the declaration that the Respondent is in default of its obligations under the loan agreements has the potential to affect both the Respondent and its creditors in the event that the Applicant sought to prove in the winding up of the Respondent for a shortfall under its security.

1. Rule 8.09 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law Rules) 2025 (Cth) (2025 GFL Rules) provides:

Amendment generally

An applicant may apply to the Court for leave to amend an originating application for any reason, including:

1. to correct a defect or error that would otherwise prevent the Court from determining the real questions raised by the proceeding; or
2. to avoid the multiplicity of proceedings; or
3. to correct a mistake in the name of a party to the proceeding; or
4. to correct the identity of a party to the proceeding; or
5. to change the capacity in which the party is suing in the proceeding, whether the changed capacity is one that the party had when the proceeding started or has acquired since that time; or
6. to substitute a person for a party to the proceeding; or
7. to add or substitute a new claim for relief, or a new foundation in law for a claim for relief, that arises:
   1. out of the same facts or substantially the same facts as those already pleaded to support an existing claim for relief by the applicant; or
   2. in whole or in part, out of facts or matters that have occurred or arisen since the start of the proceeding.

1. By the proposed Amended Application attached to the Applicant's submissions dated 22 September 2025 (Proposed Amendments), the Applicant seeks declaratory and ancillary orders to enforce the Applicant's right to possession of the Vehicles, including orders directed to parties who might be in possession of the Vehicles.
2. In Bank of Queensland Limited v Star Trek Pty Ltd,[64] (Star Trek) Adamson J explained why it was appropriate to seek relief clarifying that its proposed method of recovery is permitted by law within the meaning of s 123 of the PPSA:[65]

In order to enforce its right under s 123 of the Act to seize the Secured Property, it will be necessary for the Bank to enter onto the Matraville Property, which is owned by the Trustee and, potentially, disturb the operation of Star Trek and the business conducted on the Matraville Property. The Bank has taken the view that it ought obtain authority from this Court for this course so that its methods are unquestionably "permitted by law" within the meaning of s 123. There is support for the Bank's approach in the following passage from Anthony Duggan, David Brown, Australian Personal Property Securities Law (2nd ed, 2016, LexisNexis Butterworths) at 12.36:

"According to subs 123(1), the secured party may seize the collateral 'by any method permitted by law'. At general law the main limitations are to be found in the laws governing breach of the peace and trespass. The secured party or its agent may not use unlawful force to seize the collateral. For example, if the grantor is present and resists the seizure, the secured party may not resort to violence. The appropriate response is to back down and obtain a court order for seizure of the collateral."

1. In Toyota Finance Australia Ltd v THA Group Pty Ltd (No 2),[66] Judge Champion held that it was appropriate to make declarations so as to "provide a clear statement of the Applicant's rights to possession of the vehicle".
2. In Volkswagen Financial Services Australia Pty Limited v Tate[67] and Volkswagen Financial Services Pty Ltd v Glass Shop Perth Pty Ltd,[68] a concern about potential interference with third party rights caused the court to limit the orders giving the applicant access to premises to take possession of vehicles the subject of a security interest.
3. The question of whether to grant relief, and the extent and nature of that relief, is a matter that can be resolved at the final hearing. For present purposes, I am satisfied that the Proposed Amendments are necessary and appropriate for "determining the real questions raised by the proceeding". I note that the Applicant's intention was that the Proposed Amendments be "drawn with a view to minimising the risk of sanctioning trespass, noting that the applicant's lawful right of entry is limited by the power to enter granted to it by the Agreement."[69] Because of the Disclaimer, the relief that is necessary with respect to the Respondent is likely to be limited, but again, that is a question for the final hearing.

Joinder of parties by Court order

1. A party may apply to the Court for an order that a person be joined as a party to the proceeding if the person:
   1. ought to have been joined as a party to the proceeding; or
   2. is a person:
      1. whose cooperation might be required to enforce a judgment; or
      2. whose joinder is necessary to ensure that each issue in dispute in the proceeding can be heard and finally determined; or
      3. who should be joined as a party to enable determination of a related dispute and, as a result, avoid multiplicity of proceedings.
2. A person must not be added as an applicant without the person's consent.
3. If a person is joined as a party under this rule, the start date of the proceeding for the person is the date on which the order is made.
4. An application under subrule (1) need not be served on any person who was not served with a copy of the originating application.

1. David Robert Jones and Ian Jones are persons "whose joinder is necessary to ensure that each issue in dispute in the proceeding can be heard and finally determined" and it is appropriate to join them as respondents. David Robert Jones is the deceased guarantor's father. Ian Jones is the deceased guarantor's uncle. There is some evidence that the Kenworth might be at David Robert Jones' property in April 2025, or that the Vehicles might be in possession of Ian Jones. The question of whether there is sufficient evidence to justify relief directed to, or binding upon, those persons, or in respect of property that they are in possession or occupation of, is a matter for final hearing.[70]

1. In the premises, I consider that it is appropriate to make orders:

(a) granting leave to the Applicant under s 471B of the Corporations Act, now for then, to commence and continue these proceedings;

(b) granting leave to the Applicant to amend the Application in accordance with the Proposed Amendments;

(c) joining David Robert Jones and Ian Jones as respondents; and

(d) reserving costs.

I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary.

[1] Affidavit of Andrew Ward sworn 14 August 2025 (Ward Affidavit).

[10] Affidavit of Jason Pomaroff sworn 25 September 2025 at [9].

[11] (2022) 401 ALR 94 at [5].

[12] (2014) 292 FLR 348 at [106].

[13] Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [1999] FCA 1151; (1999) 95 FCR 292 at [14].

[14] See for example Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 276 CLR 216 (Citta) at [31].

[15] Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73 at [14] (Toohey J).

[16] See s 78B(5) of the Judiciary Act. Re Culleton [2017] HCA 3; (2017) 340 ALR 550.

[17] [2007] FedJSchol 15.

[18] [2017] FCAFC 156; (2017) 254 FCR 1.

[22] Compare Houghton v Arms [2006] HCA 59; (2006) 225 CLR 553 at [27] in relation to the question of whether accrued jurisdiction is discretionary.

[23] [2021] FCA 1566.

[24] [2022] HCA 16; (2022) 276 CLR 216.

[26] Fencott v Muller (1983) 152 CLR 457 at 608 (Mason, Murphy, Brennan and Deane JJ).

[27] PCS Operations Pty Ltd v Maritime Union of Australia (1998) 153 ALR 520 (PCS) at [12] (Gaudron J).

[28] (1981) 148 CLR 457 at [36].

[29] (1998) 153 ALR 520 at [12].

[30] Noting that the concept of a "matter" is something independent of the litigation.

[31] [2024] FedCFamC2G 577 (Judge Manousaridis).

[32] [2025] FedCFamC2G 1160 at [15] and [16] (Judge Ladhams).

[33] [2025] FedCFamC2G 1426 at [11] (Judge Cameron).

[34] [2002] HCA 19; (2002) 209 CLR 126 at [34] (Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ).

[35] [2006] FCA 361; (2006) 151 FCR 311 at [12] (Finkelstein J).

[37] [2023] FedCFamC2G 50 (Judge W D Neville).

[38] [2023] FedCFamC2F 748 (Judge Street).

[39] [2024] FCA 1133 (Stewart J).

[40] [2025] FedCFamC2G 832 at [38] (Judge Champion).

[41] For example, s 58AA of the Corporations Law and s 18 of the Federal Magistrates Act 1999 (Cth) and s 32 of the Federal Court of Australia Act 1976 (Cth).

[42] Ogawa at [10] (Finkelstein J).

[43] Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR (Pt 2) 1087 at 1142.

[44] Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 (Edensor) at [3].

[46] Macmartin at [38] (Judge Champion).

[49] This echoes some of the language used in s 58AA(2) of the Corporations Act.

[50] See s 9 and Corporation Legislation Amendment Act 1994 No. 104 of 1994 - Schedule 1, s 4.

[51] (1986) 161 CLR 217.

[55] Owners of "Shin Kobe Maru" v Empire Shipping Co Inc (1994) 181 CLR 404 at 421.

[57] AKQ16 v Minister for Immigration & Anor [2019] FCCA 90 at [40] citing Baker v The Queen [1975] AC 774 at 788. See generally ASC v Marlborough Gold Mines Ltd (1993) 177 CLR 48.

[58] Turner v Owen (1990) 96 ALR 119.

[59] R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598 at 618.

[60] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [9] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

[62] [2023] FCA 548 at [9]- [15].

[63] Compare Home Corp Projects (No 100) v Australian Home Mortgage Corporation) v Australian Home Mortgage Corporation [2021] NSWLR 701 and Re Sydney Formworks Pty Ltd (in liq) [1965] NSWR 646.

[64] [2019] NSWSC 1712 at [16] (Adamson J).

[66] [2025] FedCFamC2G 1190 (Judge Champion).

[67] [2024] FedCFamC2G 491 (Judge Cameron).

[68] [2024] FedCFamC2G 537 (Judge Ladhams).

[69] Volkswagen Financial Services Australia Pty Limited v Pairama [2024] FedCFamC2G 1395 at [16] (Judge Cameron) and Volkswagen Financial Services Australia Pty Limited v Victorian Inspection Testing and Compliance Services Pty Limited [2024] FedCFamC2G 641 at [36] (Judge Champion).

[70] Ward Affidavit at [22] and [23] and [26] to [28].