IN THE MATTER OF LC INVESTMENTS (WA) PTY LTD (IN LIQUIDATION) [2025] WASC 89 (17 March 2025)

1. The originating process was initially listed for hearing on 14 March 2025. Notice of the application was given to the Australian Securities and Investments Commission (ASIC); Lynette Jan Clarke (the sole director, company secretary and shareholder of LC Investments); Hills Scrap Metal Pty Ltd ACN 682 204 137 (the entity which appears to be in possession of the Trust Property); and creditors of LC Investments by way of a circular to creditors.
2. On 13 March 2025, after obtaining confirmation that neither ASIC nor any recipient of notice of the application had indicated to Messrs Pracilio and Knight that they wished to be heard,[1] I acceded to a request by Edwards Mac Scovell Legal, the plaintiffs' solicitors, made by letter filed on 10 March 2025 to determine the application on the papers.[2]
3. For the reasons set out below, orders were made substantively in accordance with the minute that was filed on behalf of the plaintiffs on 10 March 2025.

1. In support of the application, the plaintiffs rely on two affidavits. The first is the affidavit of Mr Pracilio sworn on 21 February 2025, to which he attached documents marked PJP‑1 to PJP‑7. The second is the affidavit of George Anthony Robert Hampson, a solicitor employed by Edwards Mac Scovell Legal, sworn on 10 March 2025, to which Mr Hampson attached documents GARH‑1 to GARH‑6. In support of the application, an outline of submissions and minute of proposed orders were also filed on 10 March 2025.
2. Set out below is an overview of the background to the application, as revealed by the affidavits sworn in support of the application and emphasised in the submissions filed. It is not intended to be a comprehensive recitation of all of the evidence before the court.
3. LC Investments was incorporated on 1 August 2016, and since incorporation, Lynette Jan Clarke has been the sole director, company secretary and shareholder of LC Investments.[3]
4. On 19 November 2024, Messrs Pracilio and Knight were appointed as liquidators of LC Investments upon the application of the Deputy Commissioner of Taxation pursuant to the orders of Registrar Trott in the Federal Court of Australia in proceeding WAD 303 of 2024.[4]
5. Mr Pracilio deposed that prior to his appointment as liquidator, LC Investments had acted as the trustee of The Clarke Family Trust through which a business known as Hills Recycling was conducted.[5] The business had commenced trading on or around 1 August 2016, and was mainly concerned with the collection and procurement of scrap metal (ferrous and non‑ferrous) which would then be sorted, processed and sold to larger scrap metal dealers for profit (the Business). The Business traded from premises in Mundaring, leased in the name of Ms Clarke's husband, Rodney Aaron Palmer.[6] Mr Pracilio also deposed to the basis for his belief that Mr Palmer had de facto control of the Business, which prior to the appointment of the liquidators and without documentation had been transferred to Hills Scrap Metal for no consideration; and that Hills Scrap Metal continues to operate the Business from the same premises in Mundaring using LC Investments' assets and customer base.[7] Mr Palmer is the sole director and shareholder of Hills Scrap Metal.[8]
6. Mr Pracilio attached to his affidavit what he deposed to be a true and correct copy of the deed which established The Clarke Family Trust (the Trust Deed),[9] which document is headed 'Discretionary Trust Deed'; is dated 10 August 2016; records LC Investments as being the sole trustee; and records the beneficiaries as being the children of Ms Clarke, plus certain specified additional beneficiaries.[10] He also deposed that neither he nor Mr Knight were aware of any amendment or variation having been made to the Trust Deed, including change to the trustee or to the beneficiaries.[11]
7. On the basis of his investigations and knowledge of matters at hand concerning the affairs of LC Investments, Mr Pracilio deposed to his belief that LC Investments:[12]

(a) was established for the sole purpose of acting as trustee of The Clarke Family Trust;

(b) was the trustee of The Clarke Family Trust from 10 August 2016 to the date of his and Mr Knight's appointment as liquidators;

(c) did not act as trustee of any other trust;

(d) operated the Business exclusively in its capacity as trustee of The Clarke Family Trust;

(e) did not trade in its own right;

(f) did not operate any business or conduct any activities in any capacity other than as trustee of The Clarke Family Trust, including in its own right;

(g) does not own any assets in its own right or as trustee of any other trust; and

(h) at all times held assets on trust, in its capacity as trustee of The Clarke Family Trust.

1. Pursuant to cl 7.6(2) of the Trust Deed, on the appointment of the liquidators, the office of trustee of The Clarke Family Trust was determined and vacated.[13]
2. In order to progress the liquidation, Mr Pracilio wishes to realise the Trust Property held by LC Investments as (now bare) trustee of The Clarke Family Trust, and apply the funds derived from the sale of the Trust Property to (among other things) the liabilities of LC Investments incurred in its capacity as trustee of The Clarke Family Trust.[14]
3. If the court were to appoint Messrs Pracilio and Knight as receivers and managers of Trust Property for the purpose of dealing with those assets, Mr Pracilio deposed that he and Mr Knight intend to discharge that role concurrently with their existing roles as the liquidators of LC Investments, and for that reason, Mr Pracilio does not expect such an appointment will materially increase the steps that will need to be taken in dealing with the Trust Property.[15]
4. As to the potential impact on creditors, it is Mr Pracilio's evidence that he is not aware of, and cannot conceive of, any prejudice or injustice that would ensue for any party in the event that orders were made in the terms of the application, noting that none of the parties registered on the Personal Property Securities Register had asserted any claim against the Trust Property in question.[16] However, it is Mr Pracilio's opinion that if the orders sought are not granted, it is likely that the creditors of LC Investments (as trustee of The Clarke Family Trust) will be prejudiced as a result of the liquidators' inability to first, deal with and realise the Trust Property; and secondly, to complete the liquidation of LC Investments in a timely way and without unnecessary protraction.[17]

1. ASIC was served with copies of, among other things, the originating process and Mr Pracilio's affidavit sworn on 26 February 2025, as required by r 2.8 of the Supreme Court (Corporations) Rules 2004 (WA).[18] I am satisfied that service on ASIC was effected a reasonable time before the hearing of the application (which had been listed on 14 March 2025).
2. ASIC did not give the plaintiffs notice of an intention to be heard, and consistent with ASIC's policy regarding court applications made under ch 5 and sch 2 of the Corporations Act, it was not anticipated that ASIC would provide formal correspondence in respect of this application as the court had not specifically requested ASIC's assistance nor had it ordered ASIC to respond in writing to the application; and ASIC had not been named a party in this application.[19]
3. Mr Hampson also deposed to service by post on Ms Clarke on or around 26 February 2025;[20] to service by post on the beneficiaries of The Clarke Family Trust by service on Ms Clarke;[21] to service by post on Hills Scrap Metal on or around 26 February 2025;[22] and to notice to creditors by a circular to creditors dated 5 March 2025, issued by email and, in the case of the Fair Entitlements Guarantee and the Australian Taxation Office, via their respective online portals.[23]
4. As was deposed by Mr Hampson,[24] and confirmed by the plaintiffs' solicitors on 13 March 2025,[25] no person or entity that was given notice of the application gave any indication to the plaintiffs' solicitors that they wished to be heard with respect to the application.

Should the first and second plaintiffs be appointed as receivers and managers of The Clarke Family Trust?

1. The legal principles that govern this application are well known and as noted by counsel for the plaintiffs, were summarised by Hill J in Re Aqua Blue Plumbing (Qld) Pty Ltd (in liquidation); Ex parte Ross Stephen Thomson as liquidator of Aqua Blue Plumbing (Qld) Pty Ltd (in liquidation) [2024] WASC 177 at [11] ‑ [20]. They were also summarised more recently by her Honour in Gregory Bruce Dudley and Jerome Hall Mohen as joint and several liquidators of NLR (WA) Pty Ltd (in liquidation) v Bragg [2024] WASC 501 at [13] ‑ [16]. I adopt the principles summarised by her Honour in the disposition of this application.
2. Where a company has been removed as trustee of a trust under the terms of the trust deed and a new trustee appointed, the company holds the trust assets as bare trustee and does not have the right to retain them as against the new trustee.[26] While the company's right of indemnity and accompanying equitable lien over the assets of the trust survives the appointment, the liquidator of the company does not have the power to sell assets to satisfy its right of indemnity absent intervention by the court.[27] The liquidator, in essence, has two options. First, to apply for an order that confers power on the liquidator to deal with the assets of the trust or, secondly, to apply to be appointed as receiver and manager of the trust. The court can either grant relief authorising the sale of trust property or appoint the liquidator as receiver over the trust assets.[28]
3. Courts are generally willing, upon an appropriate application, to make orders permitting the liquidator of a (former) corporate trustee to sell trust assets. This is because the trust assets are not property of the company but are trust property in which the company has an interest by way of lien or charge to secure its right of exoneration.[29] Any proceeds from the exercise of a corporate trustee's right of exoneration can only be applied to satisfy the liabilities of the trust.[30]
4. The court has power, pursuant to s 25(9) of the Supreme Court Act and O 51 r 1 of the Rules of the Supreme Court 1971 (WA), to appoint a receiver where it appears to be just and convenient.
5. Appointing a liquidator or administrator of a corporate trustee as a receiver of a trust's assets facilitates and simplifies the external administration of the corporate trustee by providing for the trust's business and assets to be under the same control as the corporate trustee while it is in external administration. This aids in the vindication of the trustee company's right of indemnity out of the trust's assets.[31]
6. Once the sale of the trust's assets has occurred, the proceeds may be appropriated by way of exoneration as part of the conduct of the liquidation in accordance with the statutory priorities set out in pt 5.6, div 6 of the Corporations Act.[32] This includes the costs of the liquidation. Further, orders may be made nunc pro tunc to authorise any sale of assets that have already occurred.[33]
7. In the present case, it is submitted that the liquidators had, based on their enquiries to date, formed the view that all of LC Investments' assets and liabilities were held and owned in its capacity as trustee of The Clarke Family Trust, and that it did not trade in its own right. On that basis, it is submitted that there is no risk of the Trust Property being applied to general creditors (as opposed to creditors of The Clarke Family Trust) as there are no such creditors. Accordingly, it is submitted that no prejudice to creditors would be occasioned by permitting the liquidators to realise the Trust Property to satisfy those creditors' claims (if the proceeds from that realisation are sufficient to do so).[34] I accept that the submissions made on behalf of the liquidators are supported by the affidavit evidence of Mr Pracilio.
8. I also accept that the termination of LC Investments' appointment as trustee of The Clarke Family Trust is preventing the liquidators from carrying out their statutory obligations under the Corporations Act.
9. In the circumstances deposed to, I accept that it is appropriate that the liquidators be appointed receivers and managers of the Trust Property. Otherwise, as was observed on behalf of the liquidators, there will be no other trustee or other entity with power to realise assets so as to pay the creditors of LC Investments, with respect to the debts which it incurred in its capacity as trustee of The Clarke Family Trust.
10. Further, and in the absence of any relevant conflict, I note that it is commonly the case that the court will appoint the liquidator of the corporate trustee as receiver without security.[35] There is no reason in the circumstances of this case to do otherwise, particularly as Messrs Pracilio and Knight will remain subject to the continued supervision of the court. Therefore, the need for Messrs Pracilio and Knight to give security under O 51 r 3(1) of the Rules of the Supreme Court will be dispensed with.
11. On behalf of the liquidators, it was submitted that if the court were prepared to make such orders for the purposes of facilitating the sale of the Trust Property and the application of the proceeds in favour of trust creditors, it would also be appropriate to make an order to the effect that the liquidators, in acting as receivers and managers, have the powers provided for under s 420 of the Corporations Act in respect of the Trust Property.[36] I accept that such an order is appropriate and expedient in the circumstances. I also accept that Messrs Pracilio and Knight ought be entitled to be paid the costs, expenses and remuneration incurred by them as liquidators and as receivers and managers from the Trust Property, including the costs of and incidental to this application. That order shall be made pursuant to s 90‑15 of the Insolvency Practice Schedule (Corporations).
12. Counsel for the plaintiffs submitted that if there is any question as to whether any person affected by this application has been provided adequate notice, the orders sought will protect those persons from any possible prejudice arising from this application by allowing them to apply to vary or set aside the orders (if made).[37]
13. The express allowance for any aggrieved party to apply to this court to vacate or vary the proposed orders affords protection to persons affected from possible prejudice that might otherwise arise from this application. However, the plaintiffs' proposed order contemplated that there be liberty to apply on not less than 14 days' written notice to the liquidators. I do not consider notice of such duration to be necessary or appropriate in the circumstances. Rather, there will be liberty to apply to any person affected by the orders to vary or set aside the orders on not less than three business days' written notice to the liquidators.
14. I am otherwise satisfied that in all of the circumstances that the orders sought by the plaintiffs are consistent with the legal principles outlined above, and that discretion ought be exercised in favour of the appointment of the liquidators as receivers and managers, and in favour of the making of orders substantially in the form promoted in the plaintiffs' minute of proposed orders.
15. In circumstances where the liquidators are both to be appointed as receivers and mangers over the Trust Property, a further order will be made to the effect that a function or power of a receiver and manager of Trust Property may be performed or exercised by any one of Messrs Pracilio and Knight, or by two of them together.

Direction pursuant to s 90-15(1)

1. Division 90 of the Insolvency Practice Schedule (Corporations) concerns the review of an external administration of a company, which may be undertaken by the court (div 90 subdiv B), or by another registered liquidator (div 90 subdiv C).
2. By s 90‑15(1) the court is afforded a plenary power by which it may make such orders as it thinks fit in relation to the external administration of a company,[38] and without limiting subsection (1), examples of the types of orders that the court may make are listed in s 90‑15(3).
3. While s 90‑15(3) does not limit subsection (1), it provides context for the proper construction of what will be orders in relation to the external administration of a company.[39] Relevantly, included by way of example is an order determining any question arising in the external administration of the company.[40] Section 90‑15(4) contains a non‑exhaustive list of matters that the court may take into account in exercising the discretion under s 90‑15.
4. The court's power under s 90-15(1) of the Insolvency Practice Schedule (Corporations) is expressed in broad and unconfined terms[41] and the ambit of s 90‑15 has not yet been fully considered by the authorities.[42] That said, it is well settled that the power in s 90‑15(1) to make such orders as the court thinks fit in relation to the external administration of a company, which includes the power to make an order determining any question arising in the external administration of a company, is wider than the power previously contained in s 479(3) and s 511 of the Corporations Act,[43] and accommodates the determination of substantive rights. Of course, such power cannot be exercised without affording potentially affected parties an opportunity to be heard.[44]
5. The scope of the power to give directions and advice contained in s 90‑15 of the Insolvency Practice Schedule (Corporations) is arguably the same as, or likely wider than, the scope of s 90‑15 predecessors.[45]
6. As observed by Stewart J in Re Union Standard International Group Pty Ltd (No 2) at [8]:

The court's power under s 90-15(1) includes a power to give directions about a matter arising in connection with the performance or exercise of an administrator's functions or powers: Reidy, in the matter of eChoice Ltd (Administrators Appointed) [2017] FCA 1582 at [26] - [27] (Yates J). In this respect, s 90-15(1) confers a power to give directions that was previously conferred by ss 447D(1) and 479(3) of the Act concerning administrators and liquidators, respectively: see Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth [2019] HCA 20; 93 ALJR 807 at [166] (Gordon J); Reidy at [27] (Yates J); and Kelly (liquidator), in the matter of Australian Institute of Professional Education Pty Ltd (in liq) [2018] FCA 780 at [30] (Gleeson J). The principles governing directions to administrators and those governing directions to liquidators are relevantly analogous: Re Ansett Australia Ltd (No 3) [2002] FCA 90; 115 FCR 409 at [43] (Goldberg J).

1. As to the function and scope of s 90‑15(1) of the Insolvency Practice Schedule (Corporations), I adopt the observation made by Stewart J in Krejci, in the matter of Union Standard International Group Pty Ltd (Administrators Appointed) (No 2) at [9], which follows the decision of Goldberg J in Re Ansett Australia Ltd (No 3) [2002] FCA 90; (2002) 115 FCR 409 at [44]:[46]

The function of a judicial direction of this kind is not to determine rights and liabilities arising out of a particular transaction, but to confer a level of protection on the administrator. An administrator who acts in accordance with a judicial direction, having made full and fair disclosure to the court of the material facts, has 'protection against claims that they have acted unreasonably or inappropriately or in breach of their duty in making the decision or undertaking the conduct' proposed.

1. The value of a direction is to protect the external administrator from liability for breach of duty or unreasonable behaviour provided that full disclosure has been made to the court.[47]
2. Whether to exercise the power under s 90‑15(1) will often be informed by the principles that applied on such an application to the court for directions.[48] The approach of the court on an application for directions by an external administrator are well‑established. The court will not give an administrator or a liquidator a direction if the direction relates to the making of a business or commercial decision. There must be something more before the court will give a direction. The 'something more' may be a legal issue of substance or procedure or an issue of power, propriety or reasonableness. Put differently, there must exist some issue calling for the exercise of legal judgment.[49]
3. In GDK Projects Pty Ltd, in the matter of Umberto Pty Ltd (in liq) v Umberto Pty Ltd (in liq) [2018] FCA 541 at [33], Farrell J recognised the power in s 90‑15(1) to be 'in its terms, unconstrained', but held that 'despite the breadth of the power ... it is difficult to envisage circumstances where the power could be exercised if the court could not be satisfied that it would be just and unless the applicant had demonstrated sufficient utility to the external administration'.
4. Cognisant of the nature of the court's power (described above), I accept that the court's power under s 90‑15(1) to make orders extends, in appropriate circumstances, to giving directions of the kind sought by the plaintiffs by this application.
5. I also accept that by operation of s 90‑20 of the Insolvency Practice Schedule (Corporations), Messrs Pracilio and Knight have standing to apply for relief pursuant to s 90‑15 by virtue of being officers of LC Investments.[50]
6. Further, the directions sought are in relation to the external administration of LC Investments, thus within the scope of s 90‑15(1). (For the purposes of s 90‑15(1), a company is taken to be under external administration if (among other things) a liquidator has been appointed in relation to the company).[51]
7. Having regard to the investigations undertaken by the liquidators and where there is no evidence that LC Investments traded or held assets other than in its capacity as trustee of The Clarke Family Trust, the plaintiffs submit, and I accept, that it is appropriate to give directions in the form sought by the application, that Messrs Pracilio and Knight, in their capacities as receivers and managers and as liquidators, will be justified and acting reasonably in proceeding on the basis that:

(a) LC Investments carried on business solely in its capacity as trustee of The Clarke Family Trust;

(b) all assets of LC Investments are properly characterised as property held by LC Investments in its capacity as trustee of The Clarke Family Trust; and

(c) all of the creditors of LC Investments are creditors of The Clarke Family Trust.

1. I am satisfied in the circumstances deposed to that the exercise of power to give the requested direction is just, that the plaintiffs have demonstrated clear utility to the external administration of LC Investments, and I do not consider the relief sought to be in any way inconsistent with the objects of the Insolvency Practice Schedule (Corporations).

1. For these reasons, I am satisfied it is appropriate to make the orders pressed on behalf of the receivers, now extracted and reproduced at sch A.
2. Finally, as is noted above, in relation to the costs of the application, the plaintiffs sought orders for the costs of the application be costs in the winding up of LC Investments and otherwise be paid from the Trust Property. As the activities of LC Investments were only as trustee of The Clarke Family Trust, it follows that, save for its right of exoneration and the supporting lien, LC Investments has no assets of its own (that is, held in its own right). In these circumstances, it is appropriate that the costs of this application be met from the Trust Property (as reflected in order 6 of the orders reproduced at sch A to these reasons).

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

[1] Email communication from the plaintiffs' solicitors sent to the Associate to Strk J on 13 March 2025.

[2] Letter to the Associate to Master Russell filed on 10 March 2025.

[3] Affidavit of PJ Pracilio sworn on 21 February 2025 par 10, PJP-2.

[4] Affidavit of PJ Pracilio sworn on 21 February 2025 par 8, PJP-1, PJP-2 (page 16).

[5] Affidavit of PJ Pracilio sworn on 21 February 2025 par 14.

[6] Affidavit of PJ Pracilio sworn on 21 February 2025 par 15.

[7] Affidavit of PJ Pracilio sworn on 21 February 2025 pars 20, 21.

[8] Affidavit of PJ Pracilio sworn on 21 February 2025 pars 22 - 23, PJP-4.

[9] Affidavit of PJ Pracilio sworn on 21 February 2025 par 11, PJP-3.

[10] Affidavit of PJ Pracilio sworn on 21 February 2025 par 12.

[11] Affidavit of PJ Pracilio sworn on 21 February 2025 par 13.

[12] Affidavit of PJ Pracilio sworn on 21 February 2025 par 16.

[13] Affidavit of PJ Pracilio sworn on 21 February 2025 par 37, PJP‑3 (page 39).

[14] Affidavit of PJ Pracilio sworn on 21 February 2025 par 39.

[15] Affidavit of PJ Pracilio sworn on 21 February 2025 par 40.

[16] Affidavit of PJ Pracilio sworn on 21 February 2025 par 41.

[17] Affidavit of PJ Pracilio sworn on 21 February 2025 par 42.

[18] Affidavit of GAR Hampson sworn on 10 March 2025 par 3, GARH-1, GARH-2.

[19] Affidavit of GAR Hampson sworn on 10 March 2025 par 7, GARH-3.

[20] Affidavit of GAR Hampson sworn on 10 March 2025 pars 9 ‑ 11; GARH-4.

[21] Affidavit of GAR Hampson sworn on 10 March 2025 pars 10 ‑ 11; GARH-4.

[22] Affidavit of GAR Hampson sworn on 10 March 2025 pars 13 ‑ 14; GARH-5.

[23] Affidavit of GAR Hampson sworn on 10 March 2025 pars 16 - 18, GARH-6.

[24] Affidavit of GAR Hampson sworn on 10 March 2025 pars 12, 15, 18.

[25] Email communication from the plaintiffs' solicitors sent to the Associate to Strk J on 13 March 2025.

[26] Lemery Holdings Pty Ltd v Reliance Financial Services Pty Ltd [2008] NSWSC 1344 [50] (Brereton J).

[27] See Jones v Matrix Partners Pty Ltd; Re Killarnee Civil & Concrete Contractors Pty Ltd (in liq) [2018] FCAFC 40; (2018) 260 FCR 310 [44], [85] ‑ [91] (Allsop CJ), [139], [142] (Siopis J), [198] (Farrell J); Caterpillar Financial Australia Ltd v Ovens Nominees Pty Ltd [2011] FCA 677 [22] ‑ [28] (Gordon J).

[28] Jones v Matrix Partners Pty Ltd; Re Killarnee Civil & Concrete Contractors Pty Ltd (in liq) [44] (Allsop CJ); [196] (Farrell J).

[29] Cremin, in the matter of Brimson Pty Ltd (in liq) [2019] FCA 1023 [49] (Moshinsky J).

[30] Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth [2019] HCA 20; (2019) 268 CLR 524 [40] (Kiefel CJ, Keane & Edelman JJ), [106] (Gordon J).

[31] In the matter of Mecfab Holdings Pty Ltd [2015] NSWSC 46 [9].

[32] Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth [55] - [58] (Kiefel CJ, Keane & Edelman JJ), [95] - [97] (Bell, Gageler & Nettle JJ), [171] (Gordon J).

[33] Jones v Matrix Partners Pty Ltd; Re Killarnee Civil & Concrete Contractors Pty Ltd (in liq) [91], [152], [198] (Farrell J).

[34] Plaintiffs' outline of submissions par 17.

[35] In the matter of Hercules Car Parking Systems (Victoria) Pty Ltd [2018] NSWSC 409 (Brereton J).

[36] Plaintiffs' outline of submissions par 21.

[37] Plaintiffs' outline of submissions par 15.

[38] Section 90-15(1) of the Insolvency Practice Schedule (Corporations).

[39] Frigger v Mervyn Jonathan Kitay as liquidator of Computer Accounting & Tax Pty Ltd [2022] WASC 347 [23].

[40] Section 90-15(3)(a) of the Insolvency Practice Schedule (Corporations).

[41] Australian Securities and Investments Commission v Jones [2023] WASCA 130 [306]. See also, Kelly (as joint and several liquidators of Halifax Investment Services Pty Ltd (in liq) (ACN 096 980 522)) v Loo (No 8) [2020] FCA 533; (2020) 144 ACSR 292 [51], cited in Krejci, in the matter of Union Standard International Group Pty Ltd (Administrators Appointed) (No 2) [2020] FCA 1111 [7].

[42] In the matter of Broens Pty Ltd (in liq) [2018] NSWSC 1747 [39]; See also Re Hawden Property Group Pty Ltd (ACN 003 528 345) (in liq) [2018] NSWSC 481; (2018) 125 ACSR 355 [7] ‑ [8], cited in Ex parte Frigger [2020] WASC 365 [12].

[43] In the matter of HIH Insurance Limited (in liquidation) ACN 008 636 575; In the matter of FAI General Insurance Company Ltd (in liquidation and subject to a scheme of arrangement) ACN 000 327 855; In the matter of HIH Casualty and General Insurance Limited (in liquidation and subject to schemes of arrangement) ACN 008 482 291 [2018] NSWSC 1886 [4] ‑ [5].

[44] Re Hawden Property Group Pty Ltd (ACN 003 529 345) (in liq) [8], citing Meadow Springs Fairway Resort Ltd (in liq) (ACN 084 358 592) v Balanced Securities Ltd (ACN 083 514 685) [2007] FCA 1443 [49] - [51] referring to Australian Securities Commission v Melbourne Asset Management Nominees Pty Ltd (Receiver and Manager Appointed) [1994] FCA 1031; (1994) 49 FCR 334, 352; Re Willmott Forests Ltd (ACN 063 263 650) (Receivers and Managers Appointed) (in liq) (No 2) [2012] VSC 125; (2012) 88 ACSR 18 [45] ‑ [46]; In the matter of ICS Real Estate Pty Ltd (in liq); and In the matter of Independent Contractor Services (Aust) Pty Ltd (in liq) [2014] NSWSC 479 [25]. See also In the matter of Australian Property Custodian Holdings Ltd (ACN 095 474 736) [2021] VSC 51 [35]; and Hill, in the matter of Autocare Services Pty Ltd (administrators appointed) [2021] FCA 167 [44].

[45] Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth [166] (Gordon J); Kelly (as joint and several liquidators of Halifax Investment Services Pty Ltd (in liq) (ACN 096 980 522) v Loo (No 8) [52] (Gleeson J), quoting Re Bonython Metals Group Pty Ltd (ACN 141 527 294) (in liq) (No 8) [89] Gleeson J).

[46] See also Re ONE.Tel Ltd [2014] NSWSC 457; (2014) 99 ACSR 247 [32] (Brereton J); followed in Pirina, In the matter of Fund Options (Australia) Pty Ltd (in liq) [2020] FCA 1256 (Farrell J).

[47] Re Ansett Australia Ltd (No 3) [44] (Goldberg J); In the matter of Nexus Energy Ltd [2014] NSWSC 1041 [12] - [13]; Nipps v Remagen Lend ADA Pty Ltd; Re Adaman Resources Pty (No 4) [2021] FCA 644 [38]; and Re GGA Lifestyle Pty Ltd (Administrators Appointed); ex parte Woodhouse [2019] WASC 167 [21], citing Re GB Nathan & Co Pty Ltd (1991) 24 NSWLR 674, 679 ‑ 680 (McLelland J).

[48] Re GGA Lifestyle Pty Ltd (Administrators Appointed); ex parte Woodhouse [18] (Vaughan J), citing In the matter of Broens Pty Ltd (in liq) [2018] NSWSC 1747 [39] (Gleeson J). See also Whalley, in the matter of Poles & Underground Pty Ltd (Administrators Appointed) [2017] FCA 486 [41] (Gleeson J); and Krejci (liquidator), in the matter of Community Work Pty Ltd (in liq) [2018] FCA 425 [45] ‑ [47] (Gleeson J).

[49] Re Ansett Australia Ltd (No 3) [65] (Goldberg J); adopted in In the matter of Nexus Energy Ltd [12] ‑ [13] (Black J); Nipps v Remagen Lend ADA Pty Ltd; Re Adaman Resources Pty (No 4) [38] (Banks‑Smith J); and Re GGA Lifestyle Pty Ltd [19] ‑ [20]. See also Re ONE.Tel Ltd [33] (Brereton J).

[50] Section 90‑20(1)(d) of the Insolvency Practice Schedule (Corporations), read with s 9 of the Corporations Act (pt (f) of the definition of 'officer').

[51] Section 5‑15(c) of the Insolvency Practice Schedule (Corporations).