In the matter of Procent Pty Ltd (receivers and managers appointed to... [2025] NSWSC 1459 | Case summary

In the matter of Procent Pty Ltd (receivers and managers appointed to... [2025] NSWSC 1459 | Case summary | Zoe

Procent reads several affidavits in the proceedings, although it is not necessary to address all of the detail of its evidence in order to determine the proceedings.
By an affidavit dated 22 August 2025, Mr Nathan Elali, who is the development manager of Procent, notes that Procent is in the business of property development and is also the trustee of the Captain Cook Drive Trust (“Trust”) which is the beneficial owner of a property at Kurnell in New South Wales (“Kurnell Property”). The former trustee of the Trust was Kurvest Pty Ltd (“Kurvest”) and, in late January 2022, Kurvest entered into a mortgage over the Kurnell Property with Judo Bank Ltd (“Judo”). In June 2023, Kurvest was removed as trustee of the Trust, for reasons which are not addressed in the evidence, and Procent was appointed as trustee of the Trust.
In February 2024, Judo appointed Messrs Lord and Stone as receivers and managers of the Kurnell Property. Mr Elali addresses the circumstances of that appointment, but it is not necessary to address those further where, in separate proceedings, the Receivers, Procent and Kurvest agreed to consent orders under s 418A of the Act confirming the validity of the appointment of receivers of the Kurnell Property held by Procent as trustee of the Trust. Mr Elali also refers to subsequent correspondence with ASIC, where Procent’s solicitors requested changes to the ASIC’s register and ASIC rightly responded that it could not make those changes without an order of the Court. Mr Elali identifies aspects of the information maintained in ASIC’s records which he contends are incorrect, although I do not accept that proposition for the reasons noted below.
Mr Elali also notes that Procent is in the business of property development, and, apart from the Kurnell Property which it owns as trustee of the Trust, owns several other properties in its own right. Mr Elali refers to adverse impacts of information contained on ASIC’s register has had on Procent’s business. It is not necessary to address those impacts in detail, where I accept that the appointment of the receivers to the Kurnell Property and the public notice of that matter on the ASIC register have had significant adverse impacts for Procent.
By a second affidavit dated 12 September 2025, Mr Nathan Elali referred to further adverse impacts of the information contained in ASIC’s records, including the cancellation of Procent’s American Express card used for business purposes, adverse impacts on working relationships with third parties and the fact that a number of suppliers were now directing invoices to Mr Elali personally rather than to Procent, by reason of concerns as to Procent’s financial position. He also refers to difficulties which had been faced by Procent in selling a particular property, although it is by no means clear that the result from the information contained in ASIC’s records, to the steps which he has taken to develop a mechanism to purchase other properties for Procent, and to difficulties that Procent has faced with refinancing.
By a third affidavit dated 21 October 2025, Mr Nathan Elali notes that the Kurnell Property has now been sold, with an expectation that a surplus will be payable to Kurvest as the former trustee in respect of the property and notes that it is expected that the receivership of that property will nonetheless continue into 2026.
By an affidavit dated 22 August 2025, Mr Meredith-Elali, who is the sole director and sole shareholder of Procent, indicated that Mr Nathan Elali, who is his father and to whose evidence I referred above, is the development manager of Procent and has the day-to-day conduct of its property development business and that he authorised Mr Elali to make his affidavit on Procent’s behalf. By a second affidavit dated 12 September 2025, Mr Meredith-Elali also addresses dealings in respect of the installation of a sign at a particular property and dealings with American Express.
Procent also read the affidavit dated 27 November 2025 of its solicitor, Mr Herman, which refers to notification of this application to Judo and the receivers who have not taken an active role in the proceedings.
ASIC reads the affidavit dated 3 October 2025 of Ms Masters, who is a data and systems integrity manager in the registry frontline services business line of ASIC. She addresses ASIC’s role in maintaining national registers, the process for ASIC searches and the position in respect of the company extract in respect of Procent and the Forms 504 and 505 in respect of Procent. She also refers to the very large number of Forms 504 and 505 lodged with ASIC, even within a 12 month period, and the extent to which third parties access that information.
The parties tendered a voluminous joint exhibit, although it will be necessary only to refer to parts of that exhibit in order to determine the application. I will briefly refer to some of the documents that were in evidence, which are significant for the determination of the application. A Form 504 dated 7 October 2024 lodged by Judo, indicate that it had appointed a receiver or receiver and manager under s 427 of the Act to the property described in the schedule (Ex J1, 283). That scheduled was detailed and clear, indicating that the receiver was appointed to:

By letter dated 9 July 2025 (Ex J1, 355), the solicitors for Procent requested that ASIC rectify the ASIC register, contending that the appointment of the Receivers and Managers was only over the Kurnell Property and not over Procent. It seems to me that the ASIC Register, which drew attention to the Forms 504 and 505, did not suggest the contrary. ASIC replied by letter dated 23 July 2025 (Ex J1, 358), explaining the applicable statutory provisions and noting that Procent could seek a Court order to change or correct details on a register, as Procent has now taken.
A current and historical company extract from ASIC’s database under s 1274A of the Ac**t, dated 2 October 2025 (Ex J1, 544) records the status of Procent as “externally administered”. I will refer to that concept below. It indicates, correctly, that Messrs Lord and Stone have been appointed, under the heading “external administrator”, and defines their role as receiver/manager” and identifies documents relating to “External Administration and/or Appointment of Controller” and refers to the relevant Form 504B Notification of Appointment of a Receiver and Manager and Form 505B “Notice by External Administrator/Controller – Appoint/Cease Appointment of Receiver and Manager”. As I noted above, those forms correctly indicate that the receivers had been appointed only to the Kurnell Property. Further correspondence between solicitors acting for Procent and solicitors acting for the receiver were also tendered (Ex J1, 549, 601).
My attention was also drawn to a company search obtained from a third party provider (Ex J1, 421) which partly extracts the material contained in ASIC’s current organisation extract, consistent with the information to which I referred above, and adds certain further information sourced by that provider. I infer that a change in the ASIC register would alter some, but not necessarily all, of the information contained in that third party search.
Procent also tendered its financial statements for the year ended 30 June 2024, which indicated that it made a minimal profit in 2023 and a loss in 2024, but has net assets in excess of $4.1 million as at 30 June 2024. Procent also tendered a letter dated 31 October 2025 from the solicitors acting for the receivers, providing a settlement sheet in respect of the sale of the Kurnell Property for a very substantial price.

I should now address the applicable statutory provisions and case law. The term “controller” is relevantly defined in s 9 of the Act, in relation to property of a corporation, as meaning a receiver, or receiver and manager of that property. As Ms Cairns, who appears for ASIC, points out, the term “external administrator” is not defined for the purposes of Chapter 5 of the Act and would likely have its general law meaning in that Chapter. For completeness, Ms Cairns, who appears for ASIC, draws attention to the definition of “external administration of a company” in s 5-15 of the Insolvency Practice Schedule (Corporations) but that definition does not apply to Ch 5 of the Act given the exclusion in s 9 of the Act. As was common ground between the parties to the proceedings, the concept of “external administration of a company” is different, in character, from the appointment of a controller to property of a company.
The term “property” is defined in s 9 of the Act as meaning any legal or equitable estate or interest in, inter alia, real property and, in Part 5.2 (dealing with receivers and other controllers of property of corporations) has a meaning affected by s 416 of the Act. The term “receiver”, in Part 5.2, is also affected by s 416 of the Act. A company “officer” is defined in s 9AD of the Act as including, inter alia, a receiver of property of the corporation.
Section 416 of the Act defines “property”, in relation to a corporation, as meaning property, in the case of a company, in Australia or outside Australia and defines “receiver”, in relation to property of a corporation, as including a receiver and manager. Section 427 imposes notification obligations in respect of matters relating to a controller. Section 1274 in turn requires ASIC, subject to the Act, to keep such registers as it considers necessary in such form as it thinks fit. Section 1274(2) provides for inspection of documents lodged with ASIC. Regulation 9.1.01 of the Corporations Regulation in turn prescribes certain registers for the purposes of the Act, including a register of companies, and reg 9.1.02 specifies information that is prescribed in relation to a company, including the identity of the company’s officers and information as to any receivership in respect of a company. That is significant, so far as part of the relief sought by Procent is to exclude from ASIC’s register information that the regulations require to be included in that register.
Section 1322(4)(b) of the Act authorises the Court, on application by an interested person, to order correcting the rectification of any register kept by ASIC under the Act. The parties drew attention to several cases dealing with the scope of that provision, including Miltonbrook Pty Ltd v Westbury Holdings Kiama Pty Ltd (2008) 71 NSWLR 262; [2008] NSWCA 38; Re MIG Property Services Pty Ltd (No 2) (2012) 92 ACSR 234; [2012] VSC 606 at [97]; Re DJG Equities Pty Ltd [2014] NSWSC 194 at [5]ff; Re Centura Global Holdings Pty Ltd (2016) 111 ACSR 185; [2016] NSWSC 62 (“Centura”); Re Seabay Kitchen Pty Ltd [2019] NSWSC 790 at [12]ff and Re Azzurri Group Holdings Pty Ltd [2023] NSWSC 566 (“Azzurri”). Mr Salama fairly acknowledged that there is no example in the case law which Counsel have located where an order removing a document from ASIC’s register has been made other than in circumstances that that document was false or significantly misleading. Counsel have also located no case holding that the fact that information recorded in ASIC’s register, although true, may be disadvantageous to a company warrants the removal of that information from the register, or concealing it so that it is not available to persons who search that register. The decision in Azzurri is not such a case, since Williams J there recorded (at [54]) the common ground between the parties that the information recorded in a notice of a winding up application lodged with ASIC in that case was incorrect.

Mr Salama and Mr Douglas made very detailed submissions for Procent, in chief and in reply. Ms Cairns made relatively brief submissions for ASIC, which do not engage with all of the matters raised by Procent, and both parties addressed shorter oral submissions as to the relevant issues.
Procent identified seven issues for determination, not all of which were in contest. First, it is common ground, and I accept, that the register which is sought to be rectified is a register which is capable of rectification under s 1322(4)(b) of the Act: Centura at [56].
Procent identifies a second issue, whether the information concerning the appointment of the receiver in the register is “incorrect or misleading in circumstances where the inclusion of the information in the register is causing a substantial prejudice to the companies concerned”. It seems to me that that formulation of that issue obscures rather than clarifies the matters properly in issue. The question whether the information is incorrect or misleading has no logical link with the existence of any prejudice to Procent which arises from it; information may be correct and cause prejudice to Procent or it may be misleading without causing such prejudice to Procent.
The first aspect of this second issue is whether the information contained on ASIC’s register was incorrect or misleading, as distinct from the question of the prejudice that it is causing to Procent. In oral submissions, Mr Salama contended that the register wrongly implied that a receiver was appointed to Procent, as a corporate entity, than to a single property owned by Procent in its capacity as trustee of the trust of the Kurnell Property. I do not accept the register conveys that implication, where it draws the attention of users of the register to the Forms 504 and 505 lodged by Judo and the receiver which make clear that the receiver’s appointment is only to property of Procent, namely the Kurnell Property. Ms Cairns, who appears for ASIC, rightly submits in response that a receiver is appointed to a company’s property (in whole or part) and not to the company itself, although the receiver may also be given powers to manage the company’s affairs in respect of that property for the purposes of s 90 of the Act. She also rightly points out that ASIC’s register here identifies, as I have noted above, the receiver and manager was appointed only to the Kurnell Property.
In reply, Mr Salama contends that ASIC’s register itself, or the company extract retained from it, does not identify the receivers were appointed specifically to the Kurnell Property and not the properties owned by Procent in its own right and not as trustee. I do not accept that the register can be read in that manner, where that disregards the reference to the Forms 504 and 505 to which the register draws attention, which squarely disclose those matters. I recognise that, as Mr Salama points out, the evidence suggests that fewer persons access the Forms 504 and 505 than access to the information maintained on ASIC’s register but fair disclosure requires that information be made available to relevant persons, not that it be accessed or read by them. The relevant information is here made readily available, and attention is plainly drawn to it, so that the information contained in the register is correct and not misleading, whether or not readers of the register choose to access it.
Mr Salama also made detailed submissions as to previous dealings between Kurvest, Procent and Judo which was possibly directed to this issue. I do not consider it to be either necessary or appropriate to reach findings as to those dealings, where the Court had previously made consent orders under s 418A of the Act confirming the validity of the appointment of the receivers to the Kurnell Property. I cannot and should not go behind those orders and, once that appointment is treated as valid, as it must be, the question of how it came about does not arise for determination in this application.
It seems to me that the information concerning Procent contained on ASIC’s register is neither incorrect nor misleading, for the reasons that I indicated in summarising the relevant forms and noting the information contained in the register above. ASIC’s register discloses a matter that is required to disclose by the regulations to which I referred above, that the receivers appointed to the Kurnell Property are officers of Procent within the statutory definition of that term, and that proposition is no less true by reason of being disadvantageous to Procent. The register also refers to the fact that the receivers are appointed controllers of relevant property, as is the case, and it expressly draws attention to and makes available the Forms 504 and 505 lodged by Judo and the receivers, which are each explicit as to the extent of the receiver’s appointment, namely to the Kurnell Property. I accept that, as Procent submits, some of the persons dealing with Procent may not access the Forms 504 and 505 to which their attention is drawn on the register but that does not make the register misleading where it fairly draws attention to documents which disclose the true position, by reason only that some members of the public will not choose to access or read them.
Turning to the second aspect of this issue, Mr Salama also refers to several matters of prejudice to Procent which he submits arise from the information disclosed on the ASIC register, relying on the evidence to which I have referred above. These include the cancellation of Procent’s American Express business card, difficulties with working relationships, invoices directed to Mr Elali rather than Procent and difficulties with property acquisitions, refinancing and attempts to sell property. ASIC did not advance submissions as to whether the information contained in the register was causing “substantial prejudice” to Procent. As I also noted above in dealing with the evidence, I accept these matters are prejudicial to Procent, and that they are likely to have a connection with the disclosure on the ASIC register of information relating to the appointment of the receiver to the Kurnell Property. However, as I noted above, the existence of that prejudice does not indicate information in the register is either incorrect or misleading. It seems to me that it is plainly not, for the reasons noted above.
Where the information contained in ASIC’s register is neither incorrect nor misleading, neither the case law to which I have referred above, nor any public policy that I can see, support the rectification of the register to exclude this information merely because that information causes commercial prejudice to Procent.
A third and overlapping issue identified by Mr Salama is whether the consequences of including the relevant information in ASIC’s register are “plainly unfair and unjust” in the circumstances. ASIC did not advance submissions as to this issue. Mr Salama’s formulation of this issue seems to be drawn from an observation of Williams J in Azzurri at [53]. However, as I have noted above, that observation was made in a case where the parties accepted that the information contained on the register was incorrect. It does not support a proposition that the inclusion of true information in a company register maintained by ASIC is either unfair or unjust, although it may well be disadvantageous to a company in the relevant circumstances.
The fourth issue identified by Procent is whether the relevant notifications were required to be given to ASIC under statute. Mr Salama rightly acknowledges that the appointor of a receiver and the receiver are obliged to lodge Forms 504 and 505 respectively upon the appointment of receivers and managers over company property, under s 427(1) and s 427(2) of the Act respectively. Mr Salama refers to the use, in s 427(1) of the Act, of the language “receiver of property of a corporation” and, in s 427(2) of the Act, the term “controller of property of a corporation”. Mr Salama contends that trust property is not “property of a corporation” for the purposes of s 427 of the Act and that Judo and the receivers were therefore not required to give notices in Forms 504 and 505 in respect of their appointment to the Kurnell Property, because it was held by Procent as trust property.
Mr Salama relies, for that submission, on the decisions in Re Stansfield DIY Wealth Pty Ltd (in liq) (2014) 291 FLR 17 at 22; [2014] NSWSC 1484 and Carter Holt Harvey Wood Products Australia Pty Ltd v The Commonwealth (2019) 268 CLR 524; [2019] HCA 20 (“Carter Holt”) in support of that proposition. Ms Cairns submitted, for ASIC, that, where a receiver was appointed in respect of a debt incurred by a corporate trustee on behalf of a trust, then the reference in s 427 of the Act to “property of a corporation” included the trust’s property. Ms Cairns in turn made detailed submissions as to the implications of Stansfield and Carter Holt in that respect. In submissions in reply, Mr Salama makes further submissions as to Carter Holt and refers to a company law text which prefers the reasoning of the minority to the reasoning of the majority in Carter Holt. It would not be open to me, as a first instance Judge, to take that approach, that question does not arise for determination here. Mr Salama also advances detailed submissions as to Kurvest’s right of indemnity, as the former trustee and Procent’s right of indemnity as the present trustee and as to the implications of the transfer of trust property from Kurvest to Procent for the question whether the Kurnell Property is (apparently putting aside the fact that Procent is its registered proprietor) the property of Procent. It is not necessary to address those submissions, given the view which I take below as to the scope of s 427 of the Act, beyond noting that they highlighted the oddity of the claim that the appointor of a receiver, or the receiver, should be required to engaged with questions of this complexity in order to determine whether to give notice under s 427 of the Act within the short period in which such notice is required to be given.
I do not accept Procent’s submissions as to this issue. First, it seems to me that this submission turns upon a false dichotomy, where, at least for the purposes of s 427 of the Act, property can be both “property of a corporation” and trust property. That position is evidenced here by the fact that, as Mr Salama rightly accepted in submissions, Procent hold the registered title to the Kurnell Property, although it owes obligations as trustee as to the manner in which it deals with that property, and the Kurnell Property is plainly property of Procent at least in that sense. The reasoning of the High Court in Carter Holt, directed to the application of s 433 of the Act and not to the notification obligation under s 427, does not seem to me to be authority to the contrary. Second, it seems to me that the public policy reflected by s 427 of the Act supports a notification obligation which extends to property which is trust property, where the appointment of a receiver to property held by a company as trustee of a trust, which may be the only property under its control, will be relevant to its creditors. Third, it seems to me the construction which Procent seeks to give to s 427 of the Act would be unworkable in practice, where the appointor of a receiver will not necessarily know, and a receiver may well not know, whether property is or is not trust property at the date of the appointment, or within the time in which they would be required to give notice of the relevant appointment, and may not have access to the documentation which would be necessary to answer that question. It also seems to me that the statutory purposes of s 427 of the Act would be undermined by requiring persons appointing receivers, or receivers, to undertake a detailed investigation of the terms of a trust and a complex analysis of its legal implications in order to determine whether or not notification was required under s 427 of the Act.
I conclude that notification was required under s 427 of the Act because that notification obligation extends here to property of which Procent was the registered proprietor, which was property of the corporation for the purposes of s 427 of the Act, although it was trust property. In any event, even if, contrary to my view, notification was not required to be given to ASIC under s 427 of the Act, I would not exercise the judicial discretion conferred upon the Court under s 1322 to require rectification of the register to exclude the relevant information, where that information is true and not misleading and its inclusion in the register provides relevant information to creditors and persons dealing with Procent.
The fifth issue raised by Procent is a contention that the process by which the receivers were appointed and included in the register was invalid, by reference to a collateral challenge to Judo’s appointment as receivers under an instrument. ASIC submitted that it had no knowledge of the factual matters on which Procent relied in respect of this issue and did not make further submissions as to this issue. It is neither necessary nor appropriate to decide that issue, where the Court has already made consent orders, in other proceedings, confirming the validity of the appointment of the receivers. The sixth issue raised by Procent is whether the notification required to be given to ASIC contained incorrect information, again by reference to a collateral challenge to the appointment of the receivers. ASIC took issue with the proposition that the information contained in Forms 504 and 505 was incorrect and I have not accepted that submission above.
The seventh issue raised by Procent, which appears to overlap with the fourth or other issues raised by Procent, is whether the information contained in the receiver is not required by the Act or the Regulations. ASIC noted the outcome of Procent’s seventh issue depended on the outcome of its fourth issue, and ASIC repeated its earlier submissions in that respect. In reply, Mr Salama repeats, and possibly to some extent varies, Procent’s submissions as to this issue. It seems to me that, for the reasons noted above, the information as to the identity of the receivers was required so far as they are officers of Procent within the relevant statutory definition, and the information as to their appointment contained in the Forms 504 and 505 is required by s 427 of the Act.
Returning now to s 1322 of the Ac**t, I am not satisfied that here, the information contained in the register is either incorrect nor misleading, or that a basis for directing the rectification of the register under s 1322(4)(b) of the Act is established. Section 1322(6) also provides that the Court must not make an order under the section unless it is satisfied, inter alia, that no substantial injustice has been or is likely to be caused to any person by the making of that order. It seems to me that, here, the making of that order would cause substantial injustice to users of the register maintained by ASIC by depriving them of relevant information that is presently contained in the register.

In the matter of Procent Pty Ltd (receivers and managers appointed to property held as trustee of the Captain Cook Drive Trust)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

JUDGMENT

Nature of the application

Affidavit and documentary evidence

Applicable statutory provisions and case law

The issues raised by Procent and determination

Orders

Parties

Cases Cited (3)

Cited By (1)