In the matter of Novo Pty Ltd (in liquidation)

Legislation Cited: - Corporations Act 2001 (Cth), ss 588G, 588M

Cases Cited: - Re Novo Pty Ltd [2025] NSWSC 1033

Category: Consequential orders

Parties: Novo Pty Limited (in liquidation) (First Plaintiff)
Peter Krejci in his capacity as Liquidator of Novo Pty Limited (in liquidation) (Second Plaintiff)
Robert Anthony Kell (First Defendant)
Tony Pierro (Second Defendant)
Stephen Paul Chapman (Third Defendant)

Representation: Counsel:
N Simpson (Plaintiffs)
R Kell (First Defendant) (self-represented)
DS Weinberger (Second and Third Defendants)
Solicitors:
Bartier Perry Lawyers (Plaintiffs)
R Kell (First Defendant) (self-represented)
Keypoint Law (Second and Third Defendants)

File Number(s): 2024/188638

JUDGMENT

1. By my judgment delivered on 10 September 2025 (Re Novo Pty Ltd [2025] NSWSC 1033) (“Judgment”) I held that Novo Pty Ltd (“Novo”) had established its claim against Mr Kell, a director of Novo, for insolvent trading under s 588G(1) of the Corporations Act 2001 (Cth) (“Act”). I there noted that numerous debts were incurred by Novo in the period from November 2017 when it was insolvent. I also observed that the Plaintiffs must, in proving loss or damage for the purposes of s 588M of the Act, bring to account any anticipated or estimated return to creditors in the insolvency, including possible voidable transaction claims to which I referred in the judgment. I directed the parties to bring in agreed Short Minutes of Order to give effect to the judgment within 14 days, or, if there was no agreement between them, their respective short minutes of order and submissions as to the differences between them.

2. The Plaintiffs subsequently submitted short minutes of order quantifying the judgment they sought against Mr Kell in the amount of $930,472.19 and quantifying interest under s 100 of the Civil Procedure Act 2005 from 10 April 2019 to 1 October 2025 as $363,385.10. Those orders also provided, consistent with my judgment, that Mr Kell must pay their costs of the proceedings, where he had withdrawn his submitting appearance in respect of the proceedings.

3. The Plaintiffs read and relied on two further affidavits in respect of the orders sought. By his affidavit dated 26 September 2025, Mr Krejci, who is the liquidator of Novo, addressed the position in respect of a debt owed by Telstra to Novo, to which I referred in paragraph 42 of the Judgment and noted that that debt was fully recovered by 13 April 2022. His affidavit also addressed a potential unfair preference claim against the Australian Taxation Office, which had been noted in his second report to creditors and which I also noted in paragraph 42 of the Judgment. His evidence was that the amount of that voidable transaction claim was $133,397 and that he accepted a settlement offer of $100,000 against that claim. He had not pursued a claim against another company which was deregistered on 11 April 2020. His evidence was also that he had not pursued unreasonable director related transaction claims against Mr Kell, where he had pursued the insolvent trading claim against Mr Kell. Mr Krejci’s evidence in that affidavit was the total recoveries in the liquidation total $277,773.07 and there were no other anticipated future recoveries or returns to Novo in the liquidation, and the amount now claimed in the Judgment had been reduced by the amount of those total recoveries. He also there referred to a calculation of interest on that amount.

4. By his second affidavit dated 1 October 2025, Mr Krejci identified further payments of $116,081.10 made in respect of the Telstra debt and updated his calculation of total recoveries in the liquidation, which also took account of a settlement amount payable by the Second and Third Defendants in these proceedings, as noted in orders previously made by the Court. Mr Krejci there recalculated the consequential amount claimed in these proceedings and interest on that basis. I accept that updated calculation and note that no evidence to the contrary has been led by Mr Kell.

5. Mr Kell responded to the Plaintiffs evidence and submission by indicating that he had been given a “very short time” to respond to them and did not have access to Novo’s records, although I interpolate that he did not seek either an extension of time to respond or any access to those records. He indicated that he neither consented to nor opposed the orders sought, and he requested that his email be disclosed to the Court, as the Plaintiffs have done.

6. In submissions in support of the orders sought, Mr Simpson, who appears for the Plaintiffs, adopted the principles to which I had referred in the Judgment and referred to additional case law that was consistent with those principles, and to case law dealing with the calculation of interest. He submits, and I accept, that Mr Krejci’s second affidavit applies an appropriate approach, by deducting recoveries from the amount that would otherwise be recoverable under the insolvent trading claim and that the calculation of interest has in turn been undertaken on a proper basis.

7. For these reasons, I make the following orders:

8. Judgment in favour of the Plaintiffs in the sum of $930,472.19 against the First Defendant.

9. The First Defendant pay interest pursuant to section 100 of the Civil Procedure Act 2005 from 10 April 2019 to 1 October 2025 being $363,385.10.

10. The First Defendant pay the Plaintiffs’ costs of these proceedings on the ordinary basis, as agreed or as assessed.

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