Kairouz v Jasper Nominees Ltd [2026] FedCFamC2G 564

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

JASPER NOMINEES LIMITED (SEYCHELLES COMPANY NUMBER 224224)

1. The Applicant has leave to file an amended application (the Amended Application) seeking the following orders:

(a) A declaration that the Amended Bankruptcy Notice served on the Applicant is invalid and/or void.

(b) An order that the Amended Bankruptcy Notice be set aside on the basis that it is void, invalid or an abuse of process.

(c) Further and in the alternative, an order that the Amended Bankruptcy Notice be set aside on the basis that the Applicant has a set-off, cross claim or cross demand.

(d) Further and in the alternative, an order that the Amended Bankruptcy Notice be set aside on basis that there is a genuine dispute as to the debt.

(e) Such further or other orders as the Court deems fit.

(f) Costs

1. The Amended Application be filed and served by no later than 4pm on 21 April 2026.
2. The time for compliance with the Bankruptcy Notice dated 6 December 2023 and numbered BN262677 as amended on 20 March 2024 (the Amended Bankruptcy Notice) be extended until 7 days after the final determination of this proceeding
3. This matter be listed for a case management hearing on Thursday, 23 April 2026 at 9:30am.
4. Costs reserved.
5. Liberty to apply.

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).]

1. On 6 December 2023, the Official Receiver issued Bankruptcy Notice No. BN262677 (the Bankruptcy Notice) addressed jointly to the applicants, Mr Pierre Kairouz and Mr Antonio Murdaca. The Bankruptcy Notice was grounded on a judgment debt entered in favour of the respondent, Jasper Nominees Limited (Jasper), against the applicants by the Supreme Court of Victoria on 4 December 2023. The debt claimed as due to Jasper in the Bankruptcy Notice totalled $141,449,470.91 inclusive of interest.
2. The debt on which the Bankruptcy Notice relies was incurred by the applicants in their capacity as guarantors to a loan agreement between Jasper (the lender) and the now liquidated Global Meat Exports Pty Ltd ACN 630 286 172 (GME) (of which the applicants were directors).
3. The Bankruptcy Notice was first served on Mr Kairouz. Personal service of the Bankruptcy Notice on Mr Murdaca proved difficult.
4. On 27 December 2023, Mr Kairouz filed an initiating application in this court seeking an order that the bankruptcy notice be set aside (Kairouz Application). In that application Mr Kairouz indicated an intention to appeal the Supreme Court decision and sought to extend the time for compliance with the bankruptcy notice until the appeal of the underlying judgment had been heard and determined.
5. On or about January 2024, both Mr Kairouz and Mr Murdaca filed applications for leave to appeal the Supreme Court's judgment. The Court of Appeal subsequently heard both appeals together.
6. In February 2024, Jasper filed an application for substituted service of the Bankruptcy Notice on Mr Murdaca (proceeding number MLG266/2024), supported by an affidavit deposing to failed attempts to effect personal service upon him.
7. On 19 March 2024, a Registrar of this Court made orders for the Bankruptcy Notice to be amended and for substituted service of the amended Bankruptcy Notice on Mr Murdaca.
8. On 20 March 2024, Bankruptcy Notice No. BN262677 was amended by the Official Trustee in accordance with the court orders. The amendment deleted the words "service on you of the Bankruptcy Notice" in paragraph [1] and replaced them with "5 April 2024" (the Amended Bankruptcy Notice) [1]. On its face, the amended notice required the named debtors to make payment to Jasper or enter an arrangement for settlement of the debt by no later than 21 days after 5 April 2024.
9. The Amended Bankruptcy Notice was served on Mr Murdaca. The Amended Bankruptcy Notice was not served on Mr Kairouz.
10. On 24 April 2024, Mr Murdaca filed an originating application in this court, which sought to extend the time for compliance with the Amended Bankruptcy Notice until 7 days after the hearing and determination of his application for leave to appeal the Judgment and any appeal (Murdaca Application). Orders to that effect were made by consent on 23 May 2024.
11. On or about 24 February 2025, the Court of Appeal handed down its judgment, dismissing the applicants' appeal. On 24 March 2025, the applicants filed an application for special leave to appeal that decision in the High Court of Australia. The High Court refused special leave on 7 August 2025.
12. On 5 September 2025, Mr Murdaca filed an interlocutory application seeking leave to amend his originating application in this court to expand the grounds on which he claims the Amended Bankruptcy Notice should be set aside. On 9 September 2025, Mr Kairouz Application filed an interlocutory application seeking similar relief. The respondent, Jasper opposes both amendment applications.
13. The applications for leave to amend are the subject of these reasons.

1. To put the amendment applications in the proper context, it is necessary to briefly explain the additional grounds on which the applicants now seek to challenge the bankruptcy notices.
2. The first two grounds relate to whether service of the joint notice complied with rr 9 and 10 of the Bankruptcy Regulations 2021 (the Bankruptcy Regulations), respectively:

(1) the first ground asserts non-compliance with an essential requirement in that the Amended Bankruptcy Notice was not served on Mr Kairouz at all; and

(2) the second ground contends that the Amended Bankruptcy Notice is void and/or invalid because a copy of the judgment giving rise to the debt was not attached to the notice when it was served on Mr Murdaca.

1. These two grounds might be described as technical but, if established, may be fatal for the respondent creditor and any creditors petition.
2. The third ground introduces the applicants' purported set-off claim, which relates to the sale of GME. In substance the applicants claim that the receivers appointed by Jasper failed to achieve fair market value for the sale of GME, thus denying the applicants the benefit of a recovery which would have extinguished the guaranteed debt. The applicants contend that both Jasper and its appointed receivers failed to discharge statutory and common law duties which were owed to them as loan guarantors. Further, the applicants contend that Jasper "sat on its hands" and failed to sell two secured properties which, if sold, would have substantially reduced the debt owing under the loan. This third ground is more substantive and, if the amendment is allowed, will likely expand the scope of these proceedings and prolong them.
3. Prima facie, each of these three grounds are bases upon which a debtor can legitimately challenge a bankruptcy notice. The issue for this court is whether, at this stage in the proceedings, the applicants should be granted leave to include those grounds in their substantive applications.
4. The respondent creditor opposes the application to amend relying principally on case management principles enshrined in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 (Aon), and the codification of those principles in ss 190-192 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act).

1. There is a substantial factual overlap between the Kairouz Application and the Murdaca Application. Both applications concern the same joint bankruptcy notice, and the factual background preceding the applications apply equally to the applicants. As such, the two proceedings have largely travelled in tandem, and at the beginning of the hearing of these applications for leave to amend, counsel for the applicants requested that the substantive matters be heard together. There was no opposition to that course, and it is both logical and efficient to do so.
2. At the risk of repeating some of the events referred to in the introductory paragraphs, the following background was substantially agreed by the parties prior to the hearing of the interlocutory applications.
3. On 5 October 2021, a short-term loan agreement was signed between Jasper Nominees Limited and Global Meat Exports Pty Ltd (GME). The loan was secured against the business and assets of GME and by first mortgage over two properties, one in Brooklyn and one in West Footscray. Mr Kairouz and Mr Murdaca were two of several guarantors who guaranteed the obligations of the principal debtor, GME.
4. In March 2022, the Brooklyn premises were valued, with valuations ranging from a high of $104,000,000 to a low of $22,000,000, depending on use.
5. On 16 December 2022, following a repayment default by GME, Jasper commenced Supreme Court proceedings against Mr Kairouz and Mr Murdaca seeking immediate payment of the loss caused by GME's default.
6. On 7 October 2023, Jasper appointed Laurance Andrew Fitzgerald, Christopher Stephen Bergin and Gareth James O'Connor-Price (the Receivers) as receivers and managers over GME's bank accounts.
7. On 4 December 2023, Justice Osborne handed down a judgment in favour of Jasper. The Supreme Court entered judgment against Mr Kairouz and Mr Murdaca for $141,372,006.80 plus costs. Counterclaims by Mr Kairouz and Mr Murdaca were dismissed with costs.
8. On 6 December 2023, Jasper Nominees issued the Bankruptcy Notice against Mr Kairouz and Mr Murdaca.
9. On 13 December 2023, the Bankruptcy Notice was served on Mr Kairouz.
10. On 23 December 2023, an application was filed on behalf of Mr Kairouz to stay the Supreme Court judgment.
11. On 28 December 2023, an application was filed in this court on behalf of Kairouz to set aside the Bankruptcy Notice and extend the time for compliance (Kairouz Application).[2]
12. On 30 January 2024, Jasper appointed the Receivers as receivers and managers over all of GME's assets. On the same day, an Asset Sale agreement was signed by the Receivers and Cedar United Abattoirs Pty Ltd for the total purchase price of $38,376,770.52, with an initial payment of $1m and the balance over 5 years.
13. On 19 March 2024, following a successful application for substituted service, the court permitted an amendment to the joint bankruptcy notice. The Notice was formally amended by the Official Receiver on 20 March 2024. The Amended Bankruptcy Notice was served on Mr Murdaca in accordance with the substituted service order, albeit without a copy of the judgment debt attached. As mentioned, the Amended Bankruptcy Notice was not served on Mr Kairouz at all.
14. On 18 April 2024, Registrar Curnow made Orders in respect of the Kairouz Application that, inter alia, extended the time for compliance with the Bankruptcy Notice until 4:30pm on the day that the application to set aside the Bankruptcy Notice is determined.
15. On 24 April 2024, an application was filed in this court on behalf of Mr Murdaca seeking orders to extend the time for compliance with the Amended Bankruptcy Notice until 7 days after the hearing and determination of his application for leave to appeal the debt judgment.
16. On 26 April 2024, GME commenced proceedings against the receivers in the Supreme Court of Victoria. By those proceedings GME alleged, inter alia, that the receivers had breached their duty under s 420A of the Corporations Act (Cth) 2001. The impugned conduct of the receivers related to their sale of the GME assets and the allegation that they had failed in their duty to obtain a fair market price.
17. On 11 September 2024, the Victorian Court of Appeal heard the appeal against Justice Osborne's decision.
18. On 20 November 2024, GME was wound up in insolvency by an order of Gardiner AsJ. As a consequence, the proceedings between GME and the receivers were subsequently dismissed for want of prosecution.
19. On 24 December 2024, the Court of Appeal dismissed the appeal against the debt judgment.
20. On 24 March 2025, Mr Kairouz filed an application to the High Court of Australia seeking special leave to appeal the decision of the Victorian Court of Appeal. On 7 August 2025, the application for special leave to appeal was refused.
21. On 5 September 2025 and 9 September 2025 respectively, Mr Kairouz and Mr Murdaca filed interlocutory applications[3] which sought leave to amend their applications to include the additional grounds of objection (amendment applications).
22. On 8 October 2025, the interlocutory applications were heard in this court.

1. There is no free-standing right or entitlement to litigate later advanced additional grounds in support of an application to set aside a bankruptcy notice[4].
2. However, pursuant to s 33(1)(b) of the Bankruptcy Act 1966 (Cth) (the Bankruptcy Act) the Court has a broad power "at any time to allow the amendment of any written process, proceeding or notice under" the Act.
3. Further, r 8.09 of the Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2025 (the Rules) permits a party to apply to the Court for leave to amend an originating application for any reason. Rule 8.10 of the Rules provides for parties to apply to the court even if the application is otherwise out of time.
4. The Court undoubtedly has power to grant leave to amend an application to set aside a bankruptcy notice. The issue is whether in the circumstances of this case the court should exercise its discretion to do so. The court is required to exercise its discretion judicially.
5. In Richards v Hutchinson [2023] FCA 1102 Collier J identified "threshold issues" for the court's consideration when determining whether to allow amendments in bankruptcy matters, namely[5]
   • The original application to set aside the bankruptcy notice and supporting affidavit were valid; and
   • In accordance with the principles articulated by the High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at 211 -213, [93]-[98], the issue should be treated in the same manner as amendment to final pleadings, with such amendments and supplements not lightly countenanced.
6. In Aon, the High Court considered the tension between the necessity of facilitating the just resolution of the real issues in civil proceedings with minimum delay and expense (see rule 21 of the Court Procedures Rules 2006 (ACT)), and the necessity of allowing a party to properly plead and prosecute their case. The Court stated at [102]-[103]:

The objectives stated in r 21 do not require that every application for amendment should be refused because it involves the waste of some costs and some degree of delay, as it inevitably will. Factors such as the nature and importance of the amendment to the party applying cannot be overlooked ... It is the extent of the delay and the costs associated with it, together with the prejudice which might reasonably be assumed to follow and that which is shown, which are to be weighed against the grant of permission to a party to alter its case ... invariably the exercise of that discretion will require an explanation to be given where there is delay in applying for amendment ...

... generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for.

1. The applicants contend that they are entitled to utilise the rules of the court for the specific purpose of allowing the court to determine the real issues between the parties. In this case the applicants say that the amendments will allow them to press issues which have arisen after the entry of Judgment and after the date of the Bankruptcy Notice. The applicants point to the severity of consequences which attach to a bankruptcy and a sequestration and to the importance of the amendments to them. They submit that it is in the interests of justice for all issues regarding the validity of the Bankruptcy Notice and the Amended Bankruptcy Notice to be determined before a creditors petition can be presented.
2. While conceding that the court has power to amend in appropriate circumstances, the respondents say that this is not an appropriate occasion for the court to exercise its discretion. The respondents submit that the additional grounds lack substantive merit and that any amendment will subject them to further unnecessary delay, cost and prejudice.
3. The approach of the court to amendment applications is well-trodden. The court should be favoured with an explanation from the applicant as to why the amendment is sought now, if it could have been sought earlier. Where there has been any delay, there should be a reasonable excuse. Secondly, the court should consider whether the applicant for amendment can establish a prima facie or arguable case which demonstrates that any proposed new grounds have some prospect of success at trial. The court must also consider the prejudice a party might suffer as a result of the court exercising its discretion one way or the other. Finally, the issue of prejudice cannot be considered in a vacuum and the court must have regard to case management principles such as those enunciated in Aon and codified in relevant legislation, such as ss 190-192 of FCFCOA Act.
4. Of the matters to be weighed by the court in an application to amend a pleading, there is no requirement that they be considered in any particular order. What I propose to do here is to consider whether the applicants have established a prima facie case in relation to any of the new grounds, before then turning to the issues of delay and prejudice. The weight I give to each of the relevant factors and my ultimate decision on the application will be framed by the case management principles enshrined in Aon and this Court's enabling legislation.

1. At the interlocutory hearing on 8 October 2025, Mr C Brown KC appeared with Mr Hristovski as counsel for the applicants. Mr P Bick KC appeared with Mr Freire for the respondent.
2. The applicants read and relied upon the following affidavits for the purposes of the interlocutory hearing:

(a) the affidavit of Antonio Murdaca affirmed on 8 September 2025 (the Murdaca Affidavit) filed in the Murdaca Application;

(b) the affidavit of Pierre Kairouz sworn on 5 September 2025 (the Kairouz Affidavit) filed in the Kairouz Application;

(c) the affidavit of Frank Anthony Sanna sworn on 27 December, filed in the Kairouz Application; and

(d) the affidavit of Mario Merlo sworn on 24 April 2024, filed in the Murdaca Application.

1. The respondent referred extensively to the content of the Murdaca and Kairouz affidavits and their numerous annexures. In addition, the respondent read and relied upon the:

(a) the affidavit of Andrew John Green sworn on 21 August 2025, filed in the Kairouz Application; and

(b) the affidavit of Alyssa Jane Zambelis sworn on 23 September 2025, filed in both applications.

1. Prior to the hearing each of the parties provided the court with written outlines of submissions. Those detailed and helpful outlines were developed orally at the hearing.
2. I now turn to the additional grounds the applicants seek to include in their substantive applications.

A. Failure to attach the debt judgment to the Bankruptcy notice

1. The Bankruptcy Notice in its original form was not served on Mr Murdaca. An order for substituted service was made and supported by evidence of failed attempts to effect personal service upon him. The order for substituted service was made on 19 March 2024, but it also required an amendment to the Bankruptcy Notice which was effected by the Official Trustee on 20 March 2024.
2. A copy of the version of the Amended Bankruptcy Notice purportedly served on Mr Murdaca is exhibited to the Merlo Affidavit. The version of the Amended Bankruptcy Notice posted pursuant to the substituted service orders did not attach a copy of the Judgment which is referred to in the Amended Bankruptcy Notice. The fact that the debt judgment was not attached is not contested.

1. The applicants claim that by failing to attach the debt judgment to the Amended Bankruptcy Notice the respondent failed to comply with r 9 of the Bankruptcy Regulations and the requirements of s 41(2) of the Bankruptcy Act thereby rendering the notice defective and a nullity, incurable by operation of s 306(1) of the Act. The applicants submit that attachment of the judgment was an essential requirement at the time of service and without which, the notice cannot found an act of bankruptcy.
2. The applicants directed the court to a line of authority which they say affirms the correctness of this submission.
3. First, in Curtis v Singtel Optus (2014) 225 FCR 458; [2014] FCAFC 144, Mansfield, Gleeson and Beach JJ stated at [35]-[37]:

There are many authorities that refer to the importance of attaching a copy of the final judgment or order at the time of service ... The parties did not contest that such was an essential requirement at the time of service, and that it had been satisfied in the present case. Rather, the respondents to the appeal submitted that it was not a requirement at all (let alone essential) at the time of issue ... We disagree with the respondents' contention.

The validity of the bankruptcy notice is to be assessed at the time of issue (see Walsh v DCT at 340 per Gibbs CJ). As his Honour said, "the notice must be understood as speaking as at the date of its issue". What was required at this time?

Subsection 41(2) requires that the notice must be in the form prescribed by the Regulations. Sub regulation 4.02(2) provides that the bankruptcy notice "must follow Form 1 in respect of its format (for example, bold or italic typeface, underlining and notes)". Nevertheless, reg 4.02(3) indicates that only substantial compliance is necessary.

1. More recently, in Ritson v Commissioner of Police, New South Wales Police Force (No 3) [2019] FCA 853 (Ritson) Lee J observed at [43] (my emphasis added):

A failure of the creditor to attach the judgment to the bankruptcy notice as required by s 41(2) of the Bankruptcy Act with reference to Reg 4.02(1) - (2) and cl 2 of Form 1 in Sch 1 of the Bankruptcy Regulations, is a fatal defect that cannot be cured by the operation of s 306(1) of the Bankruptcy Act ... The purpose of the requirement is to clearly identify the judgment or order upon which the bankruptcy notice is founded ...

1. The finding in Ritson is consistent with the earlier case of American Express International Inc v Held [1999] FCA 321 where the Kenny J held at [15]-[17] (my emphasis added):

In Commonwealth Bank of Australia v Horvath (Junior), Finkelstein J also concluded that the failure to attach a copy of the relevant judgment or order constituted a failure to comply with an essential requirement of the Bankruptcy Act ... Finkelstein J observed in Horvath (Junior), it is important for the administration of justice that there be uniformity in the principles applied by judges in administering the bankruptcy law. That consideration provides a further reason for holding that the bankruptcy notice served on the debtor was a nullity by virtue of the petitioning creditor's failure to attach a copy of the relevant judgment or order to the notice.

I should think that the failure to attach a copy of the judgment or order underpinning the bankruptcy notice was a defect of such a kind which could reasonably mislead a debtor, notwithstanding that it did not actually do so ... But the fact that the defect did not mislead the debtor is, as the authorities show, immaterial as to whether or not the defect was merely formal ... In my view, the petitioning creditor's failure to attach a copy of the judgment to the bankruptcy notice served on the debtor (who was unrepresented and then in his late seventies and who had, it seems, fallen on hard times when his business of 40 years failed) was a defect which had the capacity reasonably to mislead

I find that the bankruptcy notice served on the debtor was a nullity and that it did not found an act of bankruptcy for the purposes of s 40(1)(g) of the Bankruptcy Act. Accordingly, the petition must fail.

1. The respondent criticises this proposed ground as an exercise in semantics and form over substance. The respondent submits that the intended purpose of attaching a copy of the judgment or order underpinning the bankruptcy notice is to provide fairness and clarity - to ensure that the recipient debtor knows what judgment debt is being pursued. Here it is submitted that such clarification was unnecessary as it would have been self-evident to the applicant that only one debt was due. It was submitted that the failure to attach the judgment to the amended bankruptcy notice served on Mr Murdaca could not have resulted in any confusion on his part as to what judgment was being pursued. Counsel for the respondent quipped about the unlikelihood of the applicants having more than one judgment for $141 million against them in 2023.
2. The respondents also note that Mr Murdaca was served with the Amended Bankruptcy Notice in March 2024 and that it was open to him from that time to take issue with the manner of service. The respondent submits therefore that even if there is some merit to the applicant's complaint about the form of the Amended Notice, that is outweighed by the inordinate delay and the prejudice to the respondent in having to meet an objection which could have been raised (and easily corrected) more than 18 months previously.

B. Failure to serve the Amended Bankruptcy Notice on Mr Kairouz

1. The Amended Bankruptcy Notice, addressed jointly to both Mr Murdaca and Mr Kairouz, was served on Mr Murdaca on 20 March 2024 but was not served on Mr Kairouz. The applicants contend that the respondent cannot rely on a bankruptcy notice to bankrupt Mr Kairouz in circumstances where they have not served that notice on him.

1. Central to the applicants' submission is that the Bankruptcy Notice (BN 262677) was issued jointly against both Mr Murdaca and Mr Kairouz. That bankruptcy notice was amended by order of the court on 19 March 2024, albeit in the course of an application by Jasper for orders for substituted service against Mr Murdaca. Mr Kairouz says that he was not aware of either the application for substituted service or the amendment[6].
2. Nonetheless, the applicant submits that there was only ever one extant bankruptcy notice and the effect of the order on 19 March 2024 was to amend that Bankruptcy Notice in a substantive manner, by extending the date for compliance to 5 April 2024. The Official Trustee amended the bankruptcy notice, amended the date for compliance and stamped the document. The applicants submit that the amendment in its terms applied equally to Mr Murdaca and Mr Kairouz.
3. If an act of bankruptcy is to be established, service of a bankruptcy notice is required by r 10 of the Bankruptcy Regulations and s 40(1)(g) of the Bankruptcy Act. Mr Kairouz has deposed that service of the Amended Bankruptcy Notice did not occur[7], a failure which he says amounts to a material non-compliance with the requirements of the Bankruptcy Act. It is the applicant's case that the respondent can no longer rely upon service of the original Bankruptcy Notice upon Mr Kairouz to establish an act of bankruptcy because the date for compliance has been superseded by the Official Receiver's amendment and Mr Kairouz was never favoured with the opportunity to meet the more recent demand.
4. Counsel for the applicants concede that they were unable to locate any authority regarding the amendment of a joint bankruptcy notice, or the consequences of a failure to serve that amended notice on one party.

1. The respondent again submits that this ground of opposition does not enjoy any reasonable prospect of success.
2. First, the respondent relies upon service of the (unamended) bankruptcy notice on Mr Kairouz on 13 December 2023 as effective service for the purposes of s 40(1)(g) of the Act. The respondent submits that any subsequent amendment does not by the provisions of the Act or otherwise require a separate act of service.
3. Secondly, the respondent submits that the amendments to the bankruptcy notice should be taken as being directed solely to Mr Murdaca. It is submitted that it is plain from the circumstances in which the amendment took place that the extended date for compliance was only ever intended to apply to Mr Murdaca as he had not previously been served. Given the limited purpose of the amendment, it is submitted that the amendments to the bankruptcy notice did not operate to render the original bankruptcy notice ineffective as against Mr Kairouz.
4. Thirdly, the respondent submits that there could be no obligation to serve the Amended Bankruptcy Notice on Mr Kairouz, given he had already commenced proceedings to set aside the first bankruptcy notice. On 13 December 2023, the original bankruptcy notice was served on Mr Kairouz, on 23 December 2023 Mr Kairouz filed an appeal in the Supreme Court and on 28 December 2023 he made an application to this court to set aside the notice. In other words Mr Kairouz' application to set aside the original bankruptcy continues to breathe life into it.
5. Fourthly, and relatedly, the respondent submits that if Mr Kairouz had been served with the Amended Bankruptcy Notice, he may have been misled and left uncertain about what was required to meet the creditor's demand. The original notice served on 13 December 2023 provided Mr Kairouz with a clear time frame to comply with the notice, or to otherwise file an application in respect of that notice. Mr Kairouz then filed an application, which the respondent submits, rendered service of the Amended Bankruptcy Notice superfluous and potentially confusing, introducing a further date to comply with the notice, or to file an application, despite having already commenced proceedings.
6. Finally, citing the High Court in Adams v Lambert (2006) 228 CLR 409; [2006] HCA 10, the respondent submits that the court should discourage pedantic objections to bankruptcy notices. Again, the respondent contends that the applicants are seeking to promote form over substance[8], and that their submissions are not assisted by any authority.

1. The applicants third proposed ground of objection is that "the Bankruptcy Notice be set aside on the basis that the Applicant has a set-off, cross claim or cross demand".
2. Section 40(1)(g) of the Bankruptcy Act sets a carve-out to the circumstances in which a debtor would otherwise commit an act of bankruptcy. It states:

(1) A debtor commits an act of bankruptcy in each of the following cases:

...

(g) if a creditor who has obtained against the debtor a final judgment or final order, being a judgment or order the execution of which has not been stayed, has served on the debtor in Australia, or by leave of the Court, elsewhere, a bankruptcy notice under this Act and the debtor does not:

(i) where the notice was served in Australia - within the time fixed for compliance with the notice; or

(ii) where the notice was served elsewhere - within the time specified by the order giving leave to effect the service;

comply with the requirements of the notice or satisfy the Court that he or she has a counter-claim, set-off or cross demand equal to or exceeding the amount of the judgment debt or sum payable under the final order, as the case may be, being a counter-claim, set-off or cross demand that he or she could not have set up in the action or proceeding in which the judgment or order was obtained; ...

1. The expression "counter-claim, set-off or cross demand" is not defined within the Bankruptcy Act. However, it is generally accepted that a "counterclaim" means a claim that might be the subject of a counterclaim in equity; a "set-off" means a claim that might be the subject of a set-off at common law; and a "cross-demand" refers to claims other than those, such as a claim for unliquidated damages for a tort or breach of contract[9].
2. As to the level of proof required for a debtor to satisfy the court that they have an offsetting claim which equals or exceeds the amount of a judgement debt, the debtor must show that he has a genuine demand and a prima facie case, even if then and there he does not adduce the admissible evidence which would make out the case at trial.
3. In Ebert v Union Trustee Co of Aust Ltd (1960) 104 CLR 346; [1960] HCA 50 at 350, Dixon CJ, McTiernan and Windeyer JJ stated:

The debtor clearly must satisfy the court that there exists in him a counter-claim, set-off or cross demand. "Cross demand" is the word relied upon here. The appellant cannot satisfy the court that a cross demand exists by showing no more than that she propounds one and states how she suggests that she can make it out. In Re Duncan; Ex parte Modlin [1917] NSWStRp 77; (1917) 17 SR (NSW) 152; 34 WN 49, Street J said that the debtor need not satisfy the court that there are reasonable grounds for believing that he will establish his cross action, but only that he has a bona fide claim which he is fairly entitled to litigate. This perhaps is expressed too favourably to the debtor. In Re a Debtor (1958) 1 Ch 81 Roxburgh J said: "But not every demand will suffice. A demand made in bad faith would not be good enough. The debtor must satisfy the court that he has a genuine demand ... But in my opinion a demand must be more than bona fide: the court must be satisfied that it has a reasonable probability of success" (1958) 1 Ch at p 99. Perhaps the standard may be expressed by saying that the debtor must show that he has a prima facie case, even if then and there he does not adduce the admissible evidence which would make out a prima facie case before a court trying the issues that are involved in his counter-claim, set-off or cross demand.

1. More recently in Glew v Harrowell, in the matter of Glew (2003) 198 ALR 331; [2003] FCA 373 at [8]- [9] Lindgren J stated:

In order to avoid committing the act of bankruptcy identified in para (g) of s 40(1) of the Act, Glew and Tresidder [the recipients of the bankruptcy notice] must satisfy the Court that they have a counter-claim, set-off or cross demand against Hunts of the kind described in that paragraph. What they must do in order to "satisfy the Court" for the purposes of s 40(1)(g) of the Act that they have the asserted counter-claim, set-off or cross demand has been variously described. The descriptions do not necessarily purport to be comprehensive definitions. To state that a debtor in receipt of a bankruptcy notice must show X does not necessarily imply that he or she need not also show Y, or that he or she will not be defeated if the creditor shows Z.

There are authorities suggesting that Glew and Tresidder must satisfy me of the following interrelated and sometimes overlapping matters:

• that they have a "prima facie case", even if they do not adduce evidence which would be admissible on a final hearing making out that case (Ebert v The Union Trustee Co of Australia Ltd [1960] HCA 50; (1960) 104 CLR 346 ("Ebert") at 350; Re Brink; Ex parte Commercial Banking Co of Sydney Ltd [1980] FCA 78; (1980) 44 FLR 135 ("Brink") at 141; Gomez v State Bank of NSW Ltd [2002] FCAFC 101 at [17], [18]);
• that they have "a fair chance of success" or are "fairly entitled to litigate" the claim: Brink at 141; Re Gould; Gould v Day [1999] FCA 1650 at [27], [28]; Re Capsanis; Capsanis v The Owners - Strata Plan 11727 [2000] FCA 1262 at [11]); and
• that they are advancing a "genuine" or "bona fide" claim (Re Capsanis; Capsanis v The Owners - Strata Plan 11727 [2000] FCA 1262 at [11]).

It may be that the first and second formulations are intended to cover the same ground. In Brink Lockhart J treated (at ALR 438-9; FLR 141) the reference to a "prima facie case" in Ebert as a reference to "a fair chance of success".

1. In summary, the applicants must satisfy the court that they have bona fide, prima facie case with a fair chance of success, even if they do not presently adduce evidence that would be admissible on a final hearing.
2. The principles governing an application to enlarge the grounds of opposition to a bankruptcy notice to include a set-off or similar claim were set out by Bromwich J in Coshott v Prentice, in the matter of Coshott (No 2) [2016] FCA 1531(Coshott) where his Honour opined at [40]-[42]:

....for an application to set aside a bankruptcy notice to be competent and trigger the automatic statutory extension of time for compliance in s 41(7), the offsetting claim must be "effective" or "real" at the time the application is made; it must be bona fide; it must on its face show a relevant offsetting claim. Such a jurisdictional requirement for a competent application cannot be supplemented after the time for compliance has expired because that is too late to engage jurisdiction and trigger an extension of time. The terms of s 41(7) do not contemplate or allow the automatic extension of time to take place unless the application is made within the time for compliance contained in the bankruptcy notice. The application is either competent and thus valid at the time it is made, and triggers the automatic extension of time, or it is not competent and is thus invalid and no such extension of time is triggered.

The above ostensibly bright-line test will not always be easy to assess, because it requires a determination as to what is meant by "effective", "real", bona fide or showing a relevant offsetting claim. It may also give rise to a live question as to what must be determined at the outset as a question of validity, and what can properly await the final determination of the application on its merits.

At the very least, on its face the application must be legally capable of succeeding on the basis of the offsetting claim then identified as existing and relied upon, even if more evidence might be required by the time of the hearing in order for the court to reach the requisite degree of satisfaction for a final determination. It is in the nature of a legal capacity test, rather than a sufficiency of evidence test. It is directed to enabling the application to proceed to a hearing, rather than determining its ultimate success. If the application on its face is not capable of succeeding because of a manifest defect or deficiency, then it will not be valid and nothing can later be done to remedy this.

1. Where an application is made to set aside a bankruptcy notice on the basis of an offsetting claim, the Court must weigh up considerations as to the legal and factual merit of the claim relied upon by the debtor and the justice of allowing the bankruptcy proceedings to go ahead or requiring them to await the determination of the claim[10]. The Court is not required to undertake a preliminary trial, but it must make some assessment[11]. As the court emphasised in Coshott, it is a legal capacity test, rather than a sufficiency of evidence test.

1. The Asset Sale Agreement signed by the Receivers and Cedar United Abattoirs Pty Ltd caused the GME business to be sold for approximately $38m. However, the applicants submit that the sale of GME should have realised somewhere between $160m-$200m, a market price transaction which would have extinguished the judgment debt in full. The applicants claim that as guarantors to the loan they were owed statutory (under s 420 of the Corporations Act 2001 (Cth)) and common law duties by Jasper and the receivers to realise the business assets in good faith and at fair market value for the benefit of the guarantors.
2. The applicants also contend that Jasper has sat on, and not realised, its security over the Brooklyn and West Footscray properties, the realisation of which security would have significantly reduced the amount owed to Jasper. The applicants will argue, if permitted to do so, that this failure by Jasper also constitutes a breach of duty for which the applicants are entitled to common law or equitable relief.
3. The applicant's first hurdle in establishing that they have a prima facie claim, is establishing that there exists a cause of action between them as guarantors and the mortgagee (Jasper), as opposed to the guarantors and the receivers. For reasons I will explain shortly, the respondent says that no cause of action lies against Jasper and thus the essential requirement of "mutuality" (that claims be between the same parties, made by the parties in the same capacity and ultimately sound in money[12]) cannot be made out. The respondent contends that the $141m judgment debt and the alleged offsetting claim are not "mutual and due in the same right"[13].
4. In Irani v St George Bank Limited (No 2) [2005] VSC 403 (Irani) Whelan J considered the application of s 420A of the Corporations Act 2001 (Cth). Section 420A imposes an obligation on a "controller" or mortgagee when exercising the power of sale over a company, to sell the company at market price. In the course of dealing with the principles relating to that section, Whelan J noted a number of duties which are imposed on mortgagees in general law, which inform and strengthen the operation of s 420A, but are not necessitated by its application. At [142] Whelan J said:

There was no significant difference in the parties' submissions as to the legal principles which should be applied concerning s 420A. It seems to me that the applicable principles are as follows:

1. At general law, in dealing with charged property in the course of enforcing a security, a mortgagee must use its powers of enforcement in good faith and for the purpose for which they were conferred. A receiver is subject to the same requirement.
2. The mortgagor, later-ranking chargees, and guarantors all have standing to complain about a breach by the mortgagee of this duty.

3. The onus of establishing a breach of this duty lies on the complainant.

1. The enactment of s 420A of the Corporations Act 2001 (Cth) has diminished the significance of the general law duty where what is in issue is the exercise of a power of sale.
2. Section 420A extends the general law duty owed by the mortgagee. The existing entitlements of guarantors and later chargees to equitable remedies in respect of any faulty or deficient exercise of the power of sale are enhanced and strengthened by the higher duty it establishes.
3. When considering a claim of breach of the duty concerning sale, as now provided for in s 420A, it is necessary for the court to determine whether the property in question has a "market value". If it does, subs (1)(a) applies. If it does not, subs (1)(b) applies.
4. The question of whether a property has a "market value" depends upon the degree of certainty with which value is ascertainable by reference to events in a market. For the purposes of s 420A, a property does not have a "market value" where market experience does not yield a value with sufficient certainty to be used as an integer. In that circumstance, subs (1)(b) will apply.
5. Both limbs of s 420A are concerned with the process of exercise of the power of sale. On the one hand, breach of the duty provided for is not established merely because market value or the best price reasonably obtainable is not achieved. On the other hand, breach may be found to have occurred even where it is established that market value or the best price reasonably obtainable was achieved.

1. The applicants submit that a long line of authority stands for the proposition that a guarantor is only liable for the principal debt and for what the principal debtor is liable for. Therefore, if there is a claim to be made by the principal debtor, but which cannot be made now because of GME's liquidation, then the guarantors can step into those shoes and reduce the quantum of the principal debt, and therefore reduce their own liability.
2. Mr Kairouz and Mr Murdaca contend that they have a significant counterclaim or set-off claim. They estimate that had Jasper and/or the receivers properly performed their obligations to sell the business and realise all of their securities at market value, the judgment debt would have been extinguished. The applicants point to various matters in support of the claim that Jasper/the receivers breached their duties by entering into an uncommercial sale. These include:

(a) the curious fact that Jasper appointed the receivers over the assets of GME on the very same day as they signed the contract of sale;

(b) the fact that the purchase price for the Asset Sale only required the payment $1 million on completion with the balance of the purchase price payable by way of instalments over 5 years;

(c) a number of valuations support asset values in excess of the sale price achieved by the receivers;

(d) a binding heads of agreement with an offer from Asian Overseas Community Development Investment Pty Ltd to purchase a 40% equity stake in GME for USD$200 million, with full settlement by 31 March 2023 - an offer made before the appointment of receivers;

(e) the absence of any valuations from the receivers as to the assets they were selling;

(f) the failure of the receivers to pursue offers and negotiations for the sale of the GME abattoir business from Terra Firma Meatco Pty Ltd and Meat Co Global; and

(g) a failure to properly advertise the sale of the business in both Australia and overseas and a failure to engage suitable brokers for the sale of the business.

1. The applicants submit that evidence of these issues would need to be the subject of subpoenas and/or discovery from the receivers, who would ultimately hold the majority of the relevant documents regarding the process of sale which they undertook. The applicants remind the court that, at this stage of the proceeding, they need only demonstrate a prima facie or arguable case which has some prospect of success - not evidence to prove that it will.

1. The respondents written and oral submissions were directed at exposing a fundamental misconception in the applicant's case. The respondent submits that there is no legal or factual basis for a claim against Jasper and therefore no mutuality between the judgment debt and any offsetting claim the applicants might wish to pursue.
2. The respondent emphasises the distinction between the position of Jasper (as the secured creditor) and that of the receivers appointed by Jasper over the assets of GME. The respondents submit that the applicants simply elide this critical distinction, distracting attention from the lack of mutuality in relation to claims between themselves and Jasper (as opposed to any claims the applicants might have against the receivers).
3. The respondent submits that on a proper analysis, any claim for breach of duty can only lie against the receivers. The respondent submits that the following matters demonstrate that the applicants' proposed claim against Jasper is legally unsound and is doomed to fail:

(a) the receivers and managers were appointed pursuant to the terms of the General Security Agreement made on 5 October 2021 between Jasper and GME. Clause 9.2(a) of that agreement provides that each receiver is the agent of the relevant guarantor unless an order is made for the winding up of the guarantor. Although the receivers were appointed by Jasper (the secured party) the instrument under which the receiver was appointed clearly provides that the receiver is the agent of the borrower/debtor;

(b) the impugned conduct (i.e. the sale of GME) occurred at a time when the receivers were acting as agents of GME, not Jasper;

(c) neither Mr Kairouz nor Mr Murdaca have hitherto raised any allegation of fact as might be capable of giving rise to a claim against Jasper in relation to the sale process. All such allegations, until now, have been directed at the receivers;

(d) further to the above, litigation which would have agitated issues pertaining to breach of duty was initiated in the Supreme Court between GME and the receivers. Neither applicant was a party to the litigation, nor were breach of duty allegations directed at the respondent Jasper;

(e) insofar as it is alleged that Jasper sat on its hands and failed to enforce its security by realising the Brooklyn and West Footscray properties, the respondent points to contractual provisions whereby Mr Kairouz, Mr Murdaca and other guarantors have expressly waived any right they might have had to require the secured party to proceed or enforce any other rights or securities or claim payment from any person before claiming from them;

(f) further and in any event, the respondent submits that there is no principle of law that a mortgagee has to sell all securities to reduce the exposure of guarantors. Nor is there a principle of law that a mortgagee has temporal obligations about realising securities. These are all matters for the judgement of the mortgagee[14]; and

(g) the valuation evidence relied upon by the applicants, including the equity injection offer from a Vietnamese investor, is of a poor calibre, inadmissible and worthy of little weight. The evidence, according to the respondent, does not get the applicants anywhere near the prima facie case they need to establish.

1. Counsel for the respondent submits that the applicants have adopted a course in these proceedings by, in effect, putting all their eggs in the basket of seeking to defeat the judgment debt on appeal. That has delayed the proceedings inordinately and has ultimately come to nothing. The respondent submits that having chosen that path, it is now too late for the applicants to recast their application by introducing grounds which could easily have been agitated earlier.

1. The respondent argues there has been inordinate delay in making the amendment application, noting that proceedings between GME and the receivers were commenced on 1 February 2024, more than 18 months prior to the application. The respondent submits that the facts in support of claims relating to the sale were known by that time and that the applicants have given no good reason why they did not seek to amend their applications in a more timely fashion. The respondent complains that the applicants only chose to get their house in order after all efforts to defeat the judgment debt had fallen away.
2. In terms of prejudice, the respondent submits that if leave to amend is granted at this stage, the effect will be to inordinately delay the determination of the applications, conduct which is inimical to the dictates of justice and to the good case management principles as enshrined in Aon and ss 190-192 of the FCFCOA Act.
3. The applicants dispute the respondent's allegation that the proposed amendments are belated and have been made without sufficient explanation. The applicants also submit that the respondent's claims of prejudice are overstated.
4. The Kairouz Application and the Murdaca Application which challenge the Bankruptcy Notice and the Amended Bankruptcy Notice respectively, were both made within time and are valid. Although the applications were made some time ago, the court has made numerous orders, by consent, in both proceedings extending the time for compliance with the bankruptcy notices.
5. The applicants concede that until recently all their efforts have been directed at exhausting the appeals against the judgment which only concluded on 7 August 2025 when the High Court refused Mr Kairouz's application for special leave. The applicants submit that they have not been sitting on their hands and that it was not unreasonable for them to focus their resources on challenging the judgment debt in the first instance.
6. The applicants emphasise that the application to amend and to supplement their applications to raise further grounds of opposition relate to matters which arose after the entry of judgment. For example, issues in relation to the asset sale of GME arose after the Kairouz application was filed.
7. While I have some considerable sympathy for the respondent's exhaustion with these proceedings, I am not persuaded that the applications to amend have been attended by unreasonable delay or that the timing of the applications gives rise to undue prejudice. I say this for the following reasons:

(a) first, neither of the applications are at what I would regard to be an advanced stage. This is not an Aon situation where a significant pleading amendment is sought on or just before the day of trial. Unquestionably the bankruptcy proceedings have been on foot in this court for some time, but the parties have, mainly by consent, kicked the can down the road while the applicants exhausted their appeal rights. Neither party has acted unreasonably in doing so, but the proceedings have not advanced to the stage of either party filing evidence and locking in their cases;

(b) second, I accept that the applicants did move to seek amendments reasonably promptly after all attempts to defeat the judgment debt had been exhausted. That is not to say they could not have made these applications earlier, but in my view, having regard to the cost and complication of fighting on multiple fronts, the decision to direct resources at appeal efforts was not surprising or unreasonable;

(c) third, Mr Kairouz deposed that he did not press the breach of duty allegations regarding the sale earlier as he believed the GME proceeding against the receivers would have attacked the same issues. It was not until March 2025 that the GME proceeding was dismissed for want of prosecution, so there has not been an 18-month delay as asserted by the respondent;

(d) fourth, I agree with the applicants' submission that even if they had pleaded the set-off claim earlier, it is quite likely that claim would have been stayed pending the outcome of the judgment debt appeals process and the outcome of any proceedings between GME and the receivers;

(e) finally, the Kairouz Application and the Murdaca Application have not yet been listed for hearing. Given the availability of trial dates in the Court's diary, it is unlikely that these matters will be able to be brought on together for many weeks, probably some months. If the court is inclined to grant leave for the applications to be amended, there should be sufficient time for the additional grounds to be worked up and for further material and submissions to be filed by all parties.

1. The respondent argues that case management principles weigh heavily against the court exercising its discretion to grant leave to the applicants to amend their applications. Those case management principles, embodied in the FCFCOA Act, require parties to conduct litigation and for the court to make case management orders which are consistent with the overarching principles of facilitating the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
2. The objectives of civil practice in this court, include the just determination of all proceedings, the efficient use of the judicial and administrative resources of the court, the efficient disposal of the court's overall caseload, the disposal of proceedings in a timely manner and the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute. I have taken these case management principles into account in determining the two applications currently before me.
3. Facilitating the just resolution of disputes according to law carries with it, insofar as is practicable, the obligation of quelling all issues in dispute between the parties. Finality in litigation is an important public interest consideration. There will be occasions where it might be necessary to restrain a party from advancing an argument where it arises too late in the litigation and where it would subject the other party to surprise, procedural unfairness, disproportionate cost or some other significant prejudice. Following Aon, I accept that the question for the Court is no longer whether prejudice can be ameliorated by an order for costs.
4. However, where it can be reasonably accommodated and where it is necessary to ensure that justice is done between the parties, the court should exercise caution before closing the door on an arguable case which has some prospect of success at trial. At the point where an amendment is sought, the court does not have before it all of the evidence that might be produced nor the benefit of cross-examination and fulsome legal submissions. An application for amendment calls for an assessment of whether a cause of action is arguable and whether the proceeding can be managed so as not to unreasonably prejudice either side. The court must strike the appropriate balance.
5. Based on the written and oral submissions and my consideration of relevant authorities, I am satisfied that the applications for leave to amend should be granted.
6. On the two "technical" grounds, I am satisfied that the applicants have established a prima facie case which should be taken to trial. There are authorities to support the argument that the failure to attach a copy of the judgment debt to a bankruptcy notice amounts to non-compliance with an essential requirement of the Act. It is a potentially dispositive point and Mr Murdaca should be granted leave to press it.
7. The question of whether the respondent was required to effect service of the Amended Bankruptcy Notice on Mr Kairouz is not resolved by authority either way. The present circumstances which involve a joint bankruptcy notice introduce a novel complication. I am persuaded that there is a sufficiently arguable case that an amended bankruptcy notice supersedes an earlier notice and establishes a separate foundation for an act of bankruptcy. If that is so, the failure to serve an amended notice on a debtor may have adverse consequences in terms of its validity.
8. Finally, I am left with the applicants' assertion that they have a counterclaim, set-off or cross demand for the purposes of s 40(1)(g) of the Bankruptcy Act. The respondent argues strongly that this claim is both factually and legally unsound. Factually, it is said that it is supported by inadmissible weak evidence. Legally, it is submitted that no claim can lie against Jasper because, pursuant to the relevant loan agreement, the receivers were appointed to act as agents for the debtors.
9. The words "counterclaim, set-off or cross demand" should be considered broadly[15] and are intended to catch all claims by a debtor as would render it inappropriate, unfair or inequitable that the bankruptcy notice procedures under the Bankruptcy Act be utilised by a creditor[16]. A debtor or debtors should not lightly be closed out from prosecuting their opposition to a bankruptcy notice where they have a prima facie or arguable case with some prospect of success. The question at this point in a proceeding is whether the debtors have the legal capacity to mount their claim, not whether they can presently adduce sufficient evidence to do so.
10. On balance, I am satisfied that the set-off claim is sufficiently arguable that it should be permitted to go to trial. It is not entirely without merit. The respondent's argument (in contract) that the receivers acted as agents for the debtors is not a complete answer to the duties which have been identified in cases such as Irani. Notwithstanding the asserted contractual position, Jasper's appointment of the receivers is arguably a step taken "in dealing with charged property in the course of enforcing a security". As such, the general law requires that the mortgagee and receiver use their powers of enforcement in good faith and for the purpose for which they were conferred[17]. The obligation to obtain a fair market value is arguably embedded within those duties and guarantors have standing to complain in equity against the lender[18].
11. The set-off allegations may ultimately come to nothing at trial, and there will be consequences for the applicants if that is so. However, there is presently sufficient evidence before the court for an inference to be drawn that the contract for the sale of GME, on a down payment of $1 million deposit, might not have been commercial. There is evidence, which can be tested at trial, that the business might have achieved a higher price if Jasper's appointed receivers had engaged with others who had previously shown interest in the GME business. I am also satisfied on the evidence, as it currently stands, that it is arguable that a commercial sale of the business and the secured properties could have realised funds equal to or greater than the outstanding judgment.

1. For the reasons set out above, I grant leave for each of the applicants to amend their applications to include the additional grounds as proposed in their respective interlocutory applications. Any such amended applications are to be filed within 7 days.
2. In the Kairouz proceeding, the time for compliance with the Bankruptcy Notice dated 6 December 2023 and if applicable the Amended Bankruptcy Notice dated 20 March 2024 be extended until 7 days after the final hearing and determination of this proceeding.
3. In the Murdaca proceeding, the time for compliance with the Amended Bankruptcy Notice dated 20 March 2024 be extended until 7 days after the final hearing and determination of this proceeding.
4. The substantive applications should be heard as quickly as reasonably possible. These applications will be listed for a case management hearing at 9.30am on Thursday, 23 April 2026. Before 4pm this Friday the parties should confer and agree on an estimate of the time that will be required for the final hearing and inform my chambers accordingly. I will endeavour to inform the parties of a proposed trial date on Monday and I expect the parties to then confer and, if possible, reach agreement on case management orders which will ensure that the matters are prepared for trial. The case management conference can be vacated if the parties reach a sensible agreement.
5. I will now hear the parties on the question of costs of the interlocutory applications.

I certify that the preceding one hundred and nineteen (119) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes.

[1] Affidavit of Mario Merlo filed 24 April 2024, Exhibit MM-1, 4.

[2] Applicant's Originating Application filed 28 December 2023, 2.

[3] Formerly referred to as an "Application in a Proceeding".

[4] Coshott v Prentice, in the matter of Coshott (No 2) [2016] FCA 1531 at [48] per Bromwich J (Coshott).

[5] Richards v Hutchinson [2023] FCA 1102 at [65] per Collier J.

[8] See, Adams v Lambert (2006) 228 CLR 409; [2006] HCA 10 at [34], 421-422 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ.

[9] See e.g., Re Judd; Ex parte Pike [1924] NSWStRp 59; (1924) 24 SR (NSW) 537 at 539-540.

[10] Guss v Johnstone [2000] HCA 26 at [40]; see also a recent discussion of the principles in Anderson v Stonnington City Council [2026] FCAFC 34 (Banks-Smith, Dowling and McDonald JJ)

[11] Re Brink; Ex parte Commercial Banking Co of Sydney Ltd [1980] FCA 93; (1980) 30 ALR 433 at 436

[12] See, Lloyd's Bank NZA Ltd v National Safety Council of Australia, Victorian Division (in liq) [1993] VicRp 88; [1993] 2 VR 506.

[13] Gelonesi v G. Abignano (Investment) Pty Ltd [2020] FCA 898 at [77] per Perry J.

[14] Hill Foundation Pty Ltd v 131 MVR Pty Ltd [2022] NSWSC 520 at [9] per Macfarlan JA.

[15]Clear Hall v Moloney (2012) 264 FLR 299; [2012] FMCA 216 at [44], 308 per Driver FM.

[16] Re Judd; Ex parte Pike [1924] NSWStRp 59; (1924) 24 SR (NSW) 537 at 539-540.

[18] Westpac Banking Corporation v Zilzie [2017] 2 Qd R 214; [2016] QSC 238 at [29]- [37]