Hall v Poolman

and may make such consequential or ancillary orders as the Court thinks fit.

1. It is well accepted that the power conferred by subsection (d) includes the power to extend the time for corporations to comply with their financial reporting obligations under the Act whereas subsection (c) encompasses the power to relieve a person from liability for a failure to comply with those obligations: see, eg, Re Phosphate Resources Ltd [2005] FCA 1705; (2005) 56 ACSR 169 (Phosphate Resources); Re Affinity Health Ltd [2006] NSWSC 579; (2006) 58 ACSR 461; Re Murray River Organics Ltd [2019] FCA 931; (2019) 138 ACSR 365 (Murray River); ComfortDelGro Corporation Australia Pty Ltd, in the matter of ComfortDelGro Corporation Australia Pty Ltd [2020] FCA 378 (ComfortDelGro); Canon Australia Pty Ltd, in the matter of Canon Australia Pty Ltd [2023] FCA 281 (Canon); MB Vic Pty Ltd, in the matter of MB Vic Pty Ltd [2022] FCA 874 (MB Vic); Pilbara Minerals Limited, in the matter of Pilbara Minerals Limited [2025] FCA 890 (Pilbara); Re Barrick Middle East Pty Limited [2023] WASC 122 (Barrick).
2. So much comports with the fact that s 1322(4) of the Act:

reflect[s] a long-standing legislative recognition that mistakes will happen in corporate governance and that it is not in the public interest that the validity of decisions made in relation to corporations be unduly vulnerable to innocent errors which may be corrected without substantial injustice to third parties. ...

(Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396, 414 [39]; see also In the matter of Order of AHEPA NSW Incorporated [2018] NSWSC 458 [22] - [24]; Re Wave Capital Ltd (2003) 47 ACSR 418, 426 [29]).

1. The operation of such section is, however, not unfettered. Section 1322(6) relevantly provides:

(6) The Court must not make an order under this section unless it is satisfied:

(a) in the case of an order referred to in paragraph (4)(a):

(i) that the act, matter or thing, or the proceeding, referred to in that paragraph is essentially of a procedural nature;

(ii) that the person or persons concerned in or party to the contravention or failure acted honestly; or

(iii) that it is just and equitable that the order be made; and

(b) in the case of an order referred to in paragraph (4)(c) - that the person subject to the civil liability concerned acted honestly; and

(c) in every case - that no substantial injustice has been or is likely to be caused to any person.

1. It follows, therefore, that in order to relieve the Officers of civil liability under s 1322(4)(c) of the Act, the Court must be satisfied, first, that such persons have "acted honestly" and second, that "no substantial injustice has been or is likely to be caused to any person". The Court need only be satisfied of that latter condition before granting an extension of time for the Entities to lodge the Reports (for FY22, FY23, FY24 and FY25) with ASIC under s 1322(4)(d) of the Act.

The inquiries prescribed by ss 1322(6)(b) and (c) of the Act

1. Any inquiry as to whether "substantial injustice" has been or is likely to be caused to any person requires a consideration of the effect of the irregularity sought to be cured and the effect of the proposed order (were it to be made): Murray River 371 - 372 [35]. In that sense, the "test" in s 1322(6)(c) of the Act is transactional and imposes a qualitative and evaluative assessment of the competing consequences for the parties affected: MB Vic [16]. In this context, and as noted in Re Compaction Systems Pty Ltd and the Companies Act [1976] 2 NSWLR 477 (at 493), the expression "substantial injustice" is to be understood to refer to a:

real, and not merely insubstantial or theoretical, prejudice ... it is insufficient to show that there may be some prejudice to a member if, on a consideration of the whole matter, the overwhelming weight of justice, as it were, is in favour of making the order.

(see also Super John Pty Ltd v Futuris Rural Pty Ltd [1999] NSWSC 627; (1999) 32 ACSR 398, 401 - 402 [14]).

1. It is noted that one mechanism by which the Court may seek to ensure that an order made under s 1322(4) does not cause "substantial injustice" is to make an ancillary order that permits any interested person who might suffer such an injustice to apply within a set period of time to vary or dissolve the primary order: Murray River 372 [38]; see also Re ICandy Interactive Ltd [2018] FCA 533; (2018) 125 ACSR 369, 387 [116] (ICandy); Barrick [76]; Pilbara [22].
2. In determining whether a person has acted "honestly" for the purposes of s 1322(6)(b) of the Act, the Court looks to an absence of evidence of (a) dishonesty; or (b) a deliberate disregard of the obligations under the Act: Barrick [18]; ComfortDelGro [49]: and whether the plaintiff has taken prompt action to remedy the relevant error(s) or omission(s) (though delay does not preclude the grant of relief): Murray River 370 - 371 [30]; ComfortDelGro [45]; MB Vic [14]; Re Flight Centre Technology Pty Ltd [2022] NSWSC 367; (2002) 160 ACSR 651, 660 [29], 667 [56] (Flight Centre). The term "honesty" has, in this context, been understood to carry its ordinary meaning (ICandy 379 [56], quoting Hall v Poolman [2007] NSWSC 1330; (2007) 65 ACSR 123, 193 - 194 [325]) and to embrace:

(1) inadvertence, oversight or a failure to turn one's mind to the relevant issue;

(2) an active, but incorrect, consideration of a legal or other issue as well as a failure to consider the issue at all; and

(3) a failure to understand or appreciate the significance of noncompliance,

(see, eg, ICandy 379 [55] and Murray River 370 - 371 [30] (and the authorities cited therein)).

1. Notwithstanding the satisfaction of the conditions in ss 1322(6)(b) and (c) of the Act, the Court retains a residual discretion as to whether to make the orders sought. In that sense, it might be said that the satisfaction of such conditions "are therefore necessary but not sufficient to ensure a favourable exercise of the discretion in s 1322(4)(c) and (d)" of the Act: Barrick [21]; Murray River 372 [39]; MB Vic [17]. Factors which have been considered to be relevant to the exercise of the discretion include, for example, whether (a) the relevant noncompliance arose as a result of imprudence, carelessness, or wilful ignorance of the law; (b) the steps taken by the plaintiff were likely sufficient, in substance, for the Act to achieve its object; (c) public policy would be undermined by making the orders sought; (d) the plaintiff acted promptly in commencing an appropriate inquiry once aware of the error; and (e) ASIC opposes the relief sought: Flight Centre 660 [29]; Barrick [21]; In the matter of Bremick Pty Ltd [2021] NSWSC 533 [16].

Recourse to s 1322(4) of the Act is necessary

1. As explained at length in the material before the Court, the plaintiffs require additional time in which to prepare and lodge the Reports for FY23, FY24 and FY25 and a retrospective extension of time in which to lodge the FY22 Reports to October 2025 (recall supra [3]). Such extensions are sought in circumstances where it is said that first, it was not clear until June 2025 that the Reports were required to be, but had not been, prepared; second, the work required to prepare the Reports was not performed during the course of the Administration; and third, the financial records of the Entities that had been maintained by the Administrators were in a "poor state".
2. The time required to prepare and audit the Reports for FY23, FY24 and FY25 are addressed in two affidavits of a Mr Vincent Azzopardi (dated 4 November 2025 and 28 November 2025). In brief, Mr Azzopardi estimates that each of the Entities will require up until 30 April 2026 in order to comply with their financial reporting obligations for FY23 and FY24; given that those obligations must be met before the FY25 Reports can be completed, Mr Azzopardi's "current best estimate" is that each of the Entities will require up until 30 June 2026 in order to comply with their financial reporting obligations for FY25. So much can be readily accepted.
3. On the basis of the foregoing (see, in particular, supra [13]), it is pellucid that, if relief was not granted under s 1322(4) of the Act, the Entities and Officers will be in breach of their statutory reporting obligations and exposed to potential civil penalties. Though the Entities are justified in asserting that such breaches are "a consequence of" the Administration, it is, for the reasons developed below, unlikely that any relevant blame can be attributed to the Administrators.

No substantial injustice has been or is likely to be caused to any person

1. On the material before the Court, it is difficult to identify any actual or perceived prejudice that would be occasioned by the grant of the relief sought (both in respect of the extensions of time and relief from liability). For instance, IGPH has one shareholder, Sev.en Global Investments a.s. (SGI). SGI indirectly owns both IGPC and IGPM and, per the affidavit of Mr Slechta (filed 27 November 2025), does not regard itself as being prejudiced by the grant of the Application. With respect to creditors, it is noted that the Entities are solvent and expected to remain so for at least the next 12 months (i.e., until November 2026) - being well past the dates upon which the Entities seek to lodge the un-lodged Reports- such that the grant of the Application cannot be understood as likely to occasion a real or tangible prejudice to any creditors of the Entities.
2. Further, it is noted that IGPM has not engaged in trading activity which requires an AFSL since it entered administration and "will not", according to the submissions of Ms Rich, engage in such activity in the future "until after it has complied with its AFSL reporting obligations under the Act with respect to FY23, FY24 and FY25" (emphasis in original). On that basis, there is no real risk of IGPM, as an AFSL holder, providing financial services without first complying with the reporting obligations that are set out under the Act.

The persons subject to the civil liability concerned acted honestly

1. The evidence before the Court discloses that the Officers have acted honestly in relation to the circumstances which have confronted them. So much is revealed by the fact that:

(1) the Entities' failure to lodge the FY22 - FY24 Reports are not matters for which they are responsible (as they did not assume management of the Entities until 7 May 2025);

(2) from 7 May 2025, the Officers have actively sought to (a) identify those Reports which were required to be, but had not been, lodged with ASIC; and, relatedly, (b) obtain the information required to prepare such Reports. To this end, they have instructed auditors and accountants to both prepare and lodge the Reports with ASIC as soon as reasonably practicable. As Ms Rich submits, "[t]his evidence demonstrates that the [O]fficers have acted with diligence and sufficient promptness" in the relevant circumstances;

(3) the Officers reported the Entities' contraventions of the Act to ASIC (see Canon [38]);

(4) by filing the Application, the Officers have, on Ms Rich's submission, sought "to bring the [Entities] into a position of compliance with the Act". So much is demonstrative of an appreciation of the importance of compliance with the obligations set out by the Act; and

(5) the Officers have already, in October 2025, completed and lodged the Reports for FY22 and have committed to do the same vis-à-vis FY23, FY24 and FY25 as soon as possible. Though this may not be done before 30 April 2026 (in relation to FY23 and FY24) and 30 June 2026 (in relation to FY25), such extensions are reasonable having regard to the evidence of Mr Azzopardi as well as the need to make up substantial lost time and deal with the Entities' records following a long and undeniably complicated administration.

1. Very properly, Ms Rich noted the existence of some delay between the Officers' identification of the Entities' non-compliance (June 2025) and the filing of the Application (November 2025). However, as the evidence reveals, that delay is explicable given the need to obtain the requisite financial records and ascertain, with the assistance of external experts, the extent of time that would be required to prepare the Reports in the appropriate form (and have them audited). In this respect, care must be taken not to underestimate the complexity of financial reporting. That being so, the effluxion of time referred to by Ms Rich cannot be understood as a failure, by the Officers, to remedy a known incidence of non-compliance by the Entities: see, eg, MB Vic [62].
2. Further and again, very properly, Ms Rich identified that the issue is "more difficult" vis-à-vis the Entities given that (a) they were under the management of the Administrators at the time of the relevant non-compliance; and (b) the Administrators have chosen not to provide an affidavit as to the circumstances in which the Reports were not lodged. I do not think there can be any criticism of the Administrators in this respect. In correspondence sent by their solicitors, it is suggested that the Administrators neither prepared nor lodged the Reports in respect of FY22, FY23 and FY24 because of financial limitations. Prima facie, that is understandable given that (a) whilst the Administrators were financially supported in the carriage of the Administration, it was not support which extended to every aspect of the operation of the Entities; (b) the future of the Entities was uncertain prior to March 2025; and (c) vast sums were expended defending substantial claims levelled against the Entities and the Administrators. In those circumstances, the prioritisation of monies towards the preservation (and recapitalisation) of the Entities over the preparation and lodgement of the Reports with ASIC might be understood to be reasonable.
3. Another matter identified by the Administrators' legal representatives was that there may have existed some misapprehension as to the Administrators' ability to seek an extension of time in which to lodge the Reports: see, generally in this respect, In the matter of RiverCity Motorway Pty Limited [2014] FCA 1008; (2014) 225 FCR 541, 553 - 554 [80] - [86].
4. In light of the foregoing, the conduct of the Administrators cannot be understood as dishonest. At worst, it comprised an oversight and an honest, albeit incorrect, understanding of the law. Most likely, their attention was diverted away from their statutory reporting obligations by the need to fend off the various challenges brought against the Entities: see, eg, Park, In the matter of IG Power (Callide) Pty Ltd (Administrators Appointed) (No 5) [2025] FCA 135 [2] - [4].

1. The preconditions to the exercise of power under ss 1322(4)(c) and (d) of the Act having been met (supra [25] - [27] and [32]), the Court may exercise its discretion to grant relief. To do so would neither offend the objects of the Act nor undermine public confidence in compliance with the Act. Nor would it occasion any discernible harm to any person. Further, it is apparent, at least per Ms Rich, that the Entities intend to "comply fully" with their statutory reporting requirements and the indulgence sought is limited temporally. Moreover, and most obviously, the fact that the non-compliance did not arise through any fault of the Officers is significant.
2. In those circumstances, the relief sought on the Application may be understood to be consistent with the remedial purpose of s 1322(4) of the Act and should, therefore, be granted.
3. As a brief aside, it is noted that certain confidentiality orders are pursued pursuant to s 37AF of the FCA Act. Those orders are, on any view, limited and relate to certain insolvency reports which concern the Entities (and whose release would be objectively damaging). Noting that the confidentiality sought to be preserved is not broad spectrum, this is a case where it is appropriate to make the confidentiality orders sought.

1. These are the amended and revised reasons for judgment given on 8 December 2025. Whilst the reasons given above refine and develop those that were delivered ex tempore, the substance of what was said that day has not been changed, nor has any other material change been made.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Derrington.