Ligon 158 Pty Ltd (in liq) v Binetter [2026] FCA 55

[4]

Choy v Tiaro Coal Ltd (in liq) [2018] NSWCA 205; (2018) 98 NSWLR 493

Ligon 158 Pty Ltd (in liq) v Binetter [2026] FCA 55 | Case summary | Zoe

[32]

After the tax audit that commenced in 2006, Mr Binetter, Ms Kelliher, the Commissioner of Taxation and various other individuals and entities executed a global settlement agreement on 5 October 2018 settling proceedings relating to a fraudulent tax evasion scheme. That settlement comprised three interrelated deeds: a deed to which the Commissioner of Taxation was a party (Commissioner's Deed); a settlement deed entered into by numerous parties, including the liquidators of several companies and Mr Binetter (Liquidator's Deed); and the Deed of Release. Collectively, these documents formed the global settlement.
On 16 May 2018, Mr Sheahan was appointed as liquidator of Ligon 159 Pty Ltd (in liquidation), the fifth applicant in these proceedings. Ligon 159 is not a party to the Deed of Release.
On 9 October 2018, Mr Ian Lock and Mr Sheahan were appointed liquidators of Erbin Finances Pty Ltd (in liquidation) and Rawbin Finances Pty Ltd (in liquidation), the third and fourth applicants respectively in these proceedings. Both Erbin and Rawbin are parties to the Deed of Release.
On 12 November 2018, Mr Lock and Mr Sheahan were appointed voluntary administrators of Ligon 158 Pty Ltd (in liquidation) and Erma Nominees Pty Ltd (in liquidation), the first and second applicants respectively in these proceedings. Both Ligon 158 and Erma are parties to the Deed of Release.
At or about the time of the global settlement, companies controlled by Mr Binetter and/or Ms Kelliher released intra-group claims as between those companies as well as claims against, at least, Mr Binetter and/or Ms Kelliher. These releases are alleged to have occurred at a time when it was contemplated that a number of companies controlled by Mr Binetter and/or Ms Kelliher would be placed into liquidation.
On 1 November 2020, the third respondent in these proceedings, ACN 078 881 035 Pty Limited (in liquidation) (formerly known as Shield Holdings Australia Pty Ltd), was deregistered as a result of administrative action taken by the Australian Securities & Investments Commission following the default of Mr Binetter, who was its sole director.
On 29 November 2022, Ligon 158, Erma, Erbin and Rawbin, together with Mr Sheahan in his capacity as liquidator of the first to fourth respondents, commenced proceedings in this Court: Action NSD 1023/2022 (Shield proceeding). In that matter, the applicants sought to have Shield restored to the Company Register and for Mr Sheahan to be appointed as its liquidator. Mr Binetter was an interested party in the Shield proceedings and opposed Shield being reinstated.
In an interim judgment delivered by Cheeseman J in NSD 1023/2022 on 6 March 2024, her Honour described the background to those proceedings in the following terms: Ligon 158 Pty Limited (in liq) v Shield Holdings Australia Pty Limited (de-registered) [2024] FCA 144 [9]-[16]:

[33]

It is convenient by way of introduction to describe the complex background in a relatively general way.

The plaintiffs contend that each of the corporate plaintiffs was involved to varying degrees in a tax evasion scheme conducted by members of the Binetter family, and that their respective director(s) acted in breach of duty in causing them to become involved in the alleged scheme. As a consequence the corporate plaintiffs contend that they have arguable claims for accessorial liability against entities that relevantly received funds from or participated in the alleged scheme. I will refer to the corporate plaintiffs' claims of this nature as the scheme-based claims.

Erbin and Rawbin contend that they suffered loss which ultimately manifested in the form of revised assessments issued by the Commissioner of Taxation in June 2020 which included an increase in the company's assessable income plus interest and penalty. Erbin and Rawbin contend that Andrew [Binetter], as sole director breached his duty to each of them by causing them to participate in certain transactions with an Israeli bank and thereby caused loss to each company, which ultimately manifest in the relevant revised assessments. Mr Sheahan deposes to his belief that Erbin and Rawbin were involved in the alleged scheme by acting as finance companies in borrowing money from an Israeli bank and claiming the interest on those loans as a deduction in their tax returns in circumstances where the loans were matched by deposits made by Binetter companies with the Israeli bank (or a related bank). In the nomenclature used in the evidence, Erbin and Rawbin, together with Gerobin Finances Pty Limited and Marbin Finances Pty Ltd are referred to as the New Finance Companies. Erbin and Rawbin further contend that they each have a claim for relief against companies that received funds derived from the impugned transactions or otherwise knowingly participated in the underlying breach of director's duty.

Ligon 158 and Erma are alleged to have been involved in furtherance of the scheme as a result of their respective directors' breaches of duty and thus similarly have claims against other companies based on their involvement in the alleged scheme.

The alleged scheme in this proceeding is substantially similar to another tax evasion scheme that was alleged in earlier proceedings involving Binetter related entities and family members. In the earlier scheme, entities within the Binetter group incurred significant tax liabilities following the issue of revised assessments when the Commissioner became aware of the scheme. The impact of the substantial revised assessments caused four Binetter companies, which acted as finance companies in transactions with Israeli banks that were at the heart of the scheme, to become insolvent. Detailed findings as to the nature of the wrongdoing were made by Gleeson J (when her Honour was a Judge of this Court) following a trial in proceeding SAD5 of 2015. Her Honour's findings in relation to the nature of the scheme were relevantly upheld on appeal by the Full Court: BCI Finances Pty Limited (in liq) v Binetter (No 4) [2016] FCA 1351; 348 ALR 227 (liability); BCI Finances Pty Limited (in liq) v Binetter (No 5) [2017] FCA 1524 (damages and costs); BCI Finances Pty Limited (in liq) v Binetter [2018] FCAFC 189; 362 ALR 597 (Allsop CJ, Moshinsky and Colvin JJ) (Binetter Full Court).

In addition to the potential scheme-based claims, Mr Sheahan's evidence is that Ligon 158 and Erma are creditors of Shield pursuant to a running loan account revealed in the companies' books and records.

Mr Sheahan's investigations are continuing but on the information presently available to him he believes that Shield received funds in connection with the alleged scheme. Mr Sheahan deposes to his belief that Shield may also have been relevantly involved in the alleged scheme as a result of Andrew's [Binetter] breach of duty as its sole director and accordingly it may also have scheme-based claims or tracing claims available to it against some members of the Binetter family and Binetter related entities.

The plaintiffs seek orders for the reinstatement of Shield as a necessary anterior step to the winding up of Shield. The plaintiffs contend that winding up is appropriate on the just and equitable ground because there is no party otherwise to take control of Shield if it is reinstated. Andrew [Binetter] who was the sole director at the time Shield was deregistered does not seek to continue as director if Shield is reinstated on the register. The plaintiffs contend that Mr Sheahan is uniquely placed to be appointed as liquidator. The plaintiffs submit that the reinstatement and thereafter winding up of Shield are necessary to enable investigation and potentially pursuit of claims available to Shield to effect recoveries for the benefit of the plaintiffs' creditors. The principal external creditor of Erbin and Rawbin is the Commissioner.

(square brackets provided)

[34]

The purpose of reinstating Shield was to wind it up on just and equitable grounds with Mr Sheahan appointed as liquidator (given his involvement with pursuing claims which led to the global settlement), to investigate and, potentially, pursue claims available to Shield to effect recoveries for the benefit of the creditors of Ligon 158, Erma, Erbin and Rawbin. That was on the basis that Shield may have received funds in connection with the alleged scheme described in general terms by Cheeseman J.
In the interim judgment, her Honour accepted the plaintiff's submissions that the interested parties (which included Mr Binetter) sought to take advantage of Shield's administrative deregulation by ASIC in circumstances where Shield was deregistered as a consequence of Mr Binetter's default.
On 5 April 2024, formal orders were made by her Honour directing ASIC to reinstate the registration of Shield. Her Honour made further orders that day appointing Mr Alan Walker as Shield's liquidator. Further, pursuant to s 601AH(3)(d) of the Corporations Act 2001 (Cth), her Honour ordered that the limitation period in respect of any action by the plaintiffs in those proceedings, during the period from and including 29 November 2022, be suspended until the date of Shield's registration being reinstated. The effect of Cheeseman J's orders suspending time was that the limitation period, insofar as Shield was concerned, was not due to expire for some 18 months.
Her Honour did not appoint Mr Sheahan as Shield's liquidator on the basis that in the particular context of that matter, there was a likelihood of a conflict arising as a result of the 2018 settlement and the Deeds entered into by the Binetter entities: interim judgment at [233].
Following Cheeseman J's orders made on 5 April 2024, on 16 April 2024 the plaintiffs in the Shield proceedings filed an interlocutory application seeking Mr Sheahan's appointment as special purpose liquidator of Shield. Mr Binetter opposed that application.
Further, after 5 April 2024, a dispute occurred between, at least, Mr Binetter and the Commissioner of Taxation which I am informed by the applicants was accepted by the parties as potentially affecting Mr Sheahan's application to be appointed as a special purpose liquidator.
On 9 January 2025, Cheeseman J made orders appointing Mr Sheahan as a special purpose liquidator: Ligon 158 Pty Limited (in liq) v Shield Holdings Australia Pty Ltd (in liq) (Special Purpose Liquidator) [2025] FCA 3.
Since the Deed of Release was dated 5 October 2018, the first to fifth applicants in these proceedings filed the current proceeding to avoid the risk of any causes of action becoming time barred. Consequently, on 4 October 2024, the originating application and statement of claim in these proceedings were filed.
The relief sought includes:

[44]

O'Bryan J noted the caution to be exercised when considering whether orders previously made and on a final basis should be re-opened for consideration and set aside: at [43]. In Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 4) [2010] FCA 398; (2010) 269 ALR 76 at [69], Yates J observed that even in the case of procedural orders, the principle of finality of litigation has a role to play particularly in the context of case management and the overarching purpose identified in s 37M of the FCA. See also Skinner v Commonwealth of Australia [2012] FCA 1194 at [10] (Flick J), citing FAI General Insurance Company Limited v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268 at 283-284 (Wilson J; Brennan, Deane and Dawson JJ agreeing).
These are not rigid conditions but discretionary guidelines with the discretion being exercised judicially: see also Nugawela v Dudley (Trustee) (No 2) [2024] FCA 285 at [23]- [24], [31] (Jackson J).
If the applicant seeks to extend the time for service of an originating application under FCR 1.39, the court will consider whether reasonable steps were taken to serve the process promptly, as service must occur at least five days before the return date: FCR 8.06. The application must be supported by a good reason, especially if the limitation period has expired.
Where the limitation period has expired, courts must balance justice and finality.
In such cases, the reason must be "one of substance": Horne v Retirement Guide Management Pty Ltd [2017] VSCA 47; (2017) 54 VR 325 at [161] and [187(ii)], citing with approval Savcor at [41]; Hastie Group Ltd (in liq) v Moore [2016] NSWSC 1682 at [45] (Ball J).
Delay after the expiry of the limitation period is treated as "particularly serious", and liquidators, in particular, are expected to be diligent in pursuing prompt service: Tolcher v Gordon [2005] NSWCA 135 at [3] (Hodgson JA); In the matter of ACN 004 410 833 Ltd (formerly Arrium Limited) (in liq) & Ors [2023] NSWSC 461 at [76] (Black J) and the authorities there cited.
The applicants carry the burden to prove that the respondents were not prejudiced by the delay: Horne at [161].
Apart from any actual prejudice, presumptive prejudice may arise from delay in service. That prejudice may be mitigated by notice to the respondent. The court will weigh any presumptive prejudice in considering whether to grant an extension: Horne at [159].
A court may refuse to extend time if the timing of service was made conditional on third parties' actions, or if the applicant seeks time to do something that could have been done earlier: Horne at [184]; Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104 at [82] (Ipp JA; Tobias and McColl JJA agreeing_); Jabiru Satellite Ltd v Societe Generale_ [2021] VSC 544 at [52] (Delany J).
While the Federal Court Rules provide a procedural framework, these decisions are often fact-specific and guided by the overarching goal to relieve against injustice.

[50]

Although Mr Walker had been appointed pursuant to Cheeseman J's orders made 5 April 2024, on 16 April 2024 Mr Sheahan had filed an interlocutory application seeking directions and orders as to the conduct of the liquidation of the first to fourth applicants in this matter, in particular that Mr Sheahan be appointed a special purpose liquidator. That interlocutory application was supported by Mr Walker, the general purpose liquidator: T 29/10/24 at p 2.43-45.
The application was opposed by Mr Binetter and at the time of the application to extend time, Cheeseman J was part-heard on that interlocutory application. As I have noted, the interlocutory application was delayed by a dispute between, at least, Mr Binetter and the Commissioner of Taxation.
Mr Sheahan deposes in his first affidavit that he intended to put his first affidavit and the first interlocutory application in this matter before Cheeseman J in the Shield proceedings.
At the hearing of the application on 29 October 2024, Senior Counsel for the applicants informed the Court of Mr Binetter's opposition to Mr Sheahan's application that he be appointed a special purpose liquidator. The Court was also advised that the fact of these proceedings, the application, and the first Sheahan affidavit had been brought to Cheeseman J's attention in the Shield proceedings, such that thereby those matters had been brought to Mr Binetter's attention: T 29/10/24 p 3.1-8.
Senior Counsel explained that the period of extension for time to serve the proceedings was a short period of time to permit the matter before Cheeseman J to be worked through: T 29/10/24, p 3.10-19.
A further matter brought to the Court's attention on 29 October 2024 was that Mr Sheahan understood Mr Binetter and Ms Kelliher were both residing in the United States of America. Senior Counsel also advised the Court that Mr Binetter had been served with a draft of these proceedings with the consequence that Mr Binetter was alert to and on notice of the content both of the proceedings and the proposed application to extend time for service: T 29/10/24 p 4.14-32.
The applicants also explained to the Court that a 3-month extension of time was sought at the "outer limit" subject to any difficulties with service or anything emerging in the proceedings before Cheeseman J: T 29/10/24 p 5.4-14.
The respondents submit that the first Sheahan affidavit relied upon by the applicants fails to address any of the critical legal principles relevant to an application for an extension of time for service. The respondents describe the first Sheahan affidavit as "wholly inadequate" contending it does not satisfy the applicants onus to justify an extension under FCR 8.06, which requires that service be effected "as soon as practicable".
The respondents submit further that the applicants did not explain the significant delay in serving proceedings, particularly when Mr Walker had been appointed as liquidator more than six weeks before.
I do not accept these submissions. On the issue of delay, it is apparent from the matters I have set out above why service was not, and could not, be effected earlier. Further, both Mr Binetter and Ms Kelliher were residing outside of Australia so there was always going to be a period of time before service could be effected.
Next, the respondents refer to Horne, in which the Court of Appeal held that where proceedings are commenced on the final day of a limitation period, liquidators bear a heightened duty to act with alacrity and prove that the delay caused no prejudice to the respondents.
The respondents contend that the applicants improperly assumed for themselves the discretion to determine the appropriate time for service. They submit that the applicants delayed service in order to allow Mr Walker to clarify Shield's role in the proceedings, effectively treating that uncertainty as justification for delaying service. The respondents contend that this is to confer upon a non-party the right to decide the period for service, which lies exclusively with the Court.
The respondents submit further that the asserted lack of funding available to Mr Walker is not a proper basis for granting an extension of time. I do not accept that submission. The lack of funding was not the only basis, but even if it was, in these particular circumstances it was an appropriate application to make.
In any event, the applicants distinguish this case from Horne, where liquidators delayed proceedings until the last minute for commercial reasons and then sought extensions as a matter of a litigation strategy. In contrast, the applicants submit they did not delay tactically, nor did they seek to deprive the respondents of procedural fairness.
The applicants submit that unlike Horne, there was no return date fixed in the present case, the causes of action differed (Horne involving voidable transactions), and effecting personal service if an attempt had been made was not certain in the present case.
The applicants submit further that the plaintiffs in Horne had not approached the Court before expiry of the limitation period, the notice given in Horne was inadequate, and the delay due to third-party funding decisions is unlike the present facts.
The applicants submit that waiting for related proceedings (such as the special liquidator application) was acceptable and distinct from the facts in Horne, where the regime under the Corporations Act was specific and the factual circumstances did not align.
I accept the applicants' submissions and that the factual circumstances in this matter are such that Horne is distinguishable.
On the issue of which liquidator would have the conduct of these proceedings, the applicants submit that they sought a fixed period for conferral and did not make it conditional on Shield's position. They observe that steps in relation to the appointment of a special purpose liquidator were already underway and part-heard before the application to extend time.
The applicants submit that delay in conferral with Mr Walker was not due to inaction but because Mr Walker only indicated on 13 June 2024 that he would not take steps on the Deed of Release.
Further, a complete copy of the Report on Company Activities and Property submitted by Mr Binetter to Mr Walker in relation to Shield was only provided to Mr Sheahan on 3 October 2024. Mr Sheahan deposes that attached to that Report was a Deed of Release and Discharge to which Shield was a party (Shield Deed). Mr Sheahan deposed that if enforceable, the Shield Deed, which Mr Sheahan had not seen previously, had implications for the utility of claims against Shield. The applicants contend this warranted care in progressing service due to potential cross-claims. I accept those submissions.
The applicants submit further that it would be inappropriate to serve proceedings when the applicants had no intention to actively take steps in the action at that time, which would unnecessarily burden the respondents with the costs of appearances. I accept that submission.
Next, the applicants submit that the delay in filing proceedings was not attributable to any want of diligence or strategic conduct. Instead, the applicants submits that the delay arose due to procedural complexities and the contested nature of the Shield proceedings which were managed transparently. I accept that submission.
The applicants rely on the principles in Victa Ltd v Johnson (1975) 10 SASR 496, 503, where Bray CJ held that in evaluating delay, the court must consider not only, "whatever attempts have been made at service," but also, "the length of the delay, the reasons for the delay, the conduct of the parties and the hardship or prejudice caused to the plaintiff by refusing the renewal or to the defendant by granting it".
The applicants submit that they acted with due expedition. The applicants point to the fact that the Court suspended the running of the limitation period against Shield for the duration of the Shield proceedings. Consequently, proceedings could not have been commenced during that time which explains further why the proceedings were issued on 4 October 2024. The result is that proceedings were commenced almost 18 months before the applicable limitation period was due to expire insofar as Shield is concerned. They submit the delay was not strategic but arose due to the differential limitation periods applying to claims against the company and its directors. The applicants maintain that this consideration created necessary complexity, yet they still acted promptly to reinstate Shield and commence proceedings.
I accept those submissions.
Next, the applicants submit that the Shield proceedings were hotly contested and took nearly 18 months. It involved complex disputes over external administration, the appointment of a special purpose liquidator, and issues concerning the Commissioner's support for different parties. These issues delayed progress and were not within the applicants' control.
The applicants submit they acted properly by filing proceedings but holding off on service to avoid interfering with concurrent proceedings before Cheeseman J. This approach was a matter of procedural fairness, not commercial pragmatism.
The applicants emphasise that they consistently kept the Court, the general purpose liquidator, and the first and second respondents informed of its intentions through the Shield proceedings. The applicants contend this transparency rebuts any suggestion of a procedural ambush.
I accept those submissions, at least insofar as Mr Binetter is concerned. Ms Kelliher was not a party to the Shield proceedings, but I accept that there was no intention to ambush Ms Kelliher.
Further, notwithstanding Horne may be distinguished on its facts, I accept that the proper approach at a general level is as described by the Court of Appeal of Victoria at [168], i.e.: the proper approach is to ask when is it practicable for service to be effected.
Adopting that approach, it is readily apparent in the particular circumstances of this matter, that the applicants took immediate steps to obtain an extension of time for serving the proceedings. In all the circumstances, that application was both prudent and considered. There is nothing that has been put forward by Mr Binetter and Ms Kelliher which points to a reason why, on a re-hearing, the order extending time should not have been made.
It must be borne in mind that Mr Binetter opposed the reinstatement of the registration of Shield and was well-aware of the purpose for which reinstatement of registration was sought. Mr Binetter also opposed the appointment of Mr Sheahan as a special purpose liquidator.
The suggestion by the respondents that there has been delay in serving the proceedings and that the applicants have not satisfied the onus required to obtain an extension of time is, in the particular circumstances of this matter, without merit and I do not accept it. The applicants have acted with alacrity given the particular circumstances with which they were faced.

[51]

Next, the respondents submit that the applicants breached their duty of candour by failing to draw to the Court's attention either to the relevant legal principles or the contentions likely to be raised by the respondents: Town and Country Sport Resorts (Holding) Pty Ltd v Partnership Pacific Limited (1988) 20 FCR 540 at 543 (the Court).
The respondents submit that the duty on such an application is to place before the Court all matters relevant to the exercise of discretion, including those which may be adverse to the applicants' position. The respondents submit that the applicants on this occasion have misrepresented the state of communication with the respondents by asserting to the Court "the fact" that the application had been brought to Mr Binetter's attention, when in fact the only conveyed fact was Mr Sheahan's intention to make an application.
I do not accept there was a breach of the duty of candour by the applicants. Further, I do not accept the applicants misrepresented anything. In the circumstances of this matter, there is a distinction without a difference between the application being brought to Mr Binetter's attention and the intention to make the application.
As to actual prejudice, the applicants submit that the issue of delay and timing did not result in actual prejudice to the respondents because Shield had notice of the proceedings.
As part of that submission, the applicants contend that both Mr Binetter and Ms Kelliher were aware of the proceedings in this matter, such that the Court should infer Ms Kelliher had notice of Mr Sheahan's intention to seek an extension of time, and the Court should not accept arguments to the contrary without direct evidence.
Whereas it is a matter for the applicants to explain why there is no actual prejudice to the respondents, that was done by virtue of Senior Counsel pointing out to the Court that the draft proceedings had been provided to Mr Binetter as part of the Shield proceedings.
Ms Kelliher was not a party to the Shield proceedings, but she is Mr Binetter's wife and a party to the Deed of Release. Further, the point remains that had there been actual prejudice suffered by Ms Kelliher that was peculiarly within her knowledge, I would have expected evidence of that prejudice. On the re-hearing, neither Mr Binetter nor Ms Kelliher made any suggestion of actual prejudice arising out of matters that were solely within their knowledge.
Not only was there no evidence, Ms Kelliher did not rely on any affidavit sworn or affirmed by her, nor for that matter did Mr Binetter. In the absence of any evidence from Ms Kelliher that she was not aware of Mr Sheahan's intentions, I am prepared to infer she was aware of it.
It seems Mr Binetter suffers from a medical condition, the details of which are the subject of confidentiality orders. In or about mid-December 2024, Mr Malcom Stewart had a conversation with Mr Binetter which made him aware of Mr Binetter's medical condition. That evidence was provided by Mr Stewart in the second Stewart affidavit.
To the extent Mr Binetter has a medical condition, that is not prejudice sufficient to warrant the order extending time not being made and in any event post-dates the hearing on 29 October 2024.
As to presumptive prejudice, the applicants submit that none arises in this case because Mr Binetter was already involved in related proceedings about the tax evasion scheme and the applicants were seeking Shield's reinstatement for the purpose of bringing these claims.
They submit further that to the extent there may be any presumptive prejudice, that has been mitigated by reason of Mr Binetter being put on notice of the claim: Jabiru at [75]. I accept those submissions and that any presumptive prejudice to Mr Binetter has been mitigated by providing the draft statement of claim to Mr Binetter.
As to Ms Kelliher, for the same reasons as I have set out above as to why I am prepared to infer that Ms Kelliher knew of Mr Sheahan's intentions to bring an application to extend the time for service, I am prepared to infer Ms Kelliher was aware of the nature of the claim which the applicants proposed to bring with that knowledge gained through Mr Binetter's involvement in the Shield proceedings, such that any presumptive prejudice to Ms Kelliher has been mitigated.
Next, the applicants submit that any presumptive prejudice must be weighed against the interests of creditors obtaining a trial on the merits - especially considering the fraudulent tax evasion scheme: Choy v Tiaro Coal Ltd (in liq) [2018] NSWCA 205; (2018) 98 NSWLR 493 at [56]. The applicants draw on the Court's finding in Ligon 158 at [212] that there exists a public interest in the pursuit of claims against Shield. I accept that submission, however Ms Kelliher submits there was no such finding against her. I accept that submission such that I give no weight to it in relation to Ms Kelliher.
As to drawing the Court's attention to the relevant principles, those principles make it abundantly clear that their application is fact specific. No principle has been identified by the respondents which, on a proper application, militate against the exercise of the discretion.
The relevant governing principles make it clear that the discretion to extend time is fact specific. The obligation to serve as soon as practicable must be considered against the complexity of the background to this matter; the issue over which liquidator was to have the conduct of these proceedings; as well as Mr Binetter's opposition to both the re-registration of Shield and Mr Sheahan's interlocutory application that he be appointed a special purpose liquidator.
Nothing in the materials advanced by the respondents show a reasonably arguable or prima facie case to either oppose the order extending time nor provide sufficient merit to justify setting aside the order.
Further, in the particular circumstances of this matter, the principle of finality, particularly in the context of case management and s 37M of the FCA, are firmly against setting aside the order.

[53]

On 9 December 2024, the applicants' solicitors, Iles Selley, contacted Pitcher Partners Legal (NSW), who acted for Mr Binetter, requesting confirmation by 5pm the next day of whether it was authorised to accept service for Mr Binetter and/or Ms Kelliher.
On 10 December 2024, Pitcher Partners Legal responded to the letter from Iles Selley dated 9 December 2024 in which they did not confirm whether it had instructions to accept service on behalf of Mr Binetter, with references in that letter to "my client" being a reference to Mr Binetter only.
On 12 December 2024, Ms Thomas of Iles Selley attended the South Australian Registry of the Federal Court to lodge documents necessary to effect personal service on Mr Binetter and Ms Kelliher under the Hague Convention pursuant to Division 10.6 of the FCR.
On 17 December 2024, the Registry emailed ABC Legal Services seeking expedited service on Mr Binetter and Ms Kelliher.
On 4 January 2025, a process server engaged by ABC Legal Services made unsuccessful attempts to serve Mr Binetter and Ms Kelliher personally with the documents in Puerto Rico.
On 7 January 2025, the Registry emailed Ms Thomas of Iles Selley informing her that service had been attempted on 4 January 2025 but that it was unsuccessful.
Also on 7 January 2025, Iles Selley contacted Pitcher Partners Legal requesting urgent confirmation as to whether it had instructions to accept service on behalf of Mr Binetter and Ms Kelliher. An automatic reply advised that Mr Ardagna of Pitcher Partners Legal was on leave until 13 January 2025.
As I have noted, on 9 January 2025, Cheeseman J made orders appointing Mr Sheahan as special purpose liquidator. Later that same day, the applicants filed an interlocutory application seeking an order under FCR 1.39 extending time for service to 10 February 2025. This application was supported by the first Thomas affidavit.
On 10 January 2025, the Court made orders varying the orders of 29 October 2024 by extending the time for service to 10 February 2025.

[57]

The respondents contend that such delays evidence a leisurely and nonchalant approach, incompatible with the duty of diligence imposed on a liquidator tasked with ensuring prompt service.
The applicants submit that the second extension was necessitated solely by the difficulty in personally serving the individual respondents. I accept that submission. So much so is clearly evident on the materials before the Court at the time of the second application.
The applicants submit that the criticisms of delay made by the respondents is unwarranted. The applicants had already made attempts at personal service before the second extension of time was sought. That is so and I accept the applicants' submission.
The applicants submit further that correspondence had already commenced with Pitcher Partners Legal before the second application was made. Pitcher Partners Legal had advised they would respond when able, and delays over the Christmas and New Year break should not be viewed as "leisurely", particularly when service attempts were ongoing. I accept that submission. In particular, in the specific circumstances of this matter, I have no hesitation in rejecting the submission that the delay was excessive and/or unexplained. To the extent there is a suggestion the applicants' approach has been "leisurely", I do not accept it.
As to the period of nine weeks delay from commencement of the proceedings, the applicants submit that such a period is not unreasonably long in the circumstances, especially given it included the Christmas/NewYear period. They also note that the application to extend time for service was filed on the same afternoon that judgment was delivered appointing Mr Sheahan as special purpose liquidator of Shield. I accept those submissions.
The applicants submit further that at no point did Pitcher Partners Legal convey they were authorised to accept service for Mr Binetter. They submit that on that basis, no useful purpose would have been served by additional or earlier follow-ups. I accept that submission.
Next, the applicants submit that Mr Binetter and/or Ms Kelliher cannot rely on the delays caused by their own legal representatives' failure to respond to correspondence or to provide instructions. I am not in a position to determine whether or not Pitcher Partners Legal delayed and I give this submission no weight.

[79]

The second submission advanced by the respondents is that the applicants seek declaratory and associated relief that various provisions in the Deed of Release are void as being against public policy, however the applicants have not joined all of the parties to the Deed of Release.
That submission proceeds on the basis that there is at least an arguable possibility that the rights and/or liabilities of other parties to the Deed of Release may be affected by the relief and orders sought by the applicants. The respondents submit further that the rights and/or liabilities of parties to the other documents forming part of the global settlement may be affected by the relief and orders sought by the applicants.
The applicants submit that although it is asserted there is an arguable possibility that other parties to the Deed may be affected by the relief sought, there is no detail or evidence showing how those unnamed parties would actually be affected. I accept that submission.
The applicants submit that Mr Binetter and Ms Kelliher, being members of the Binetter family group, would be in a position to know whether rights of other parties to the Deed might be affected, but they have provided no evidence to that effect. I do not know if that is the case or not and so I give that submission no weight.
The applicants submit further that failure to join all parties to a deed does not necessarily prevent the Court from setting aside the deed inter partes. Any orders made would not bind third parties, especially when the relief sought involves only personal or proprietary rights only. The applicants submit further that concerns about other parties can be managed by giving those parties an opportunity to be heard at trial. I accept those submissions.
Finally, the applicants submit that in any event, there are still distinct claims for damages that are unaffected by the issue of joinder. I accept that submission.
Further, it must be borne in mind that these proceedings are at a stage where the proceedings have been served. Once the respondents have filed their defences, then the Court and the applicants will be better placed to consider whether other parties should be joined.
To contend that because of some, as yet to be determined, possibility that other parties might (not will) be affected by the orders and relief sought by the applicants is a sufficient basis to warrant the proceedings being summarily dismissed or stayed, is unsustainable.

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