Page v Conneely, in the matter of Shyzi Pty Ltd

KATE CONNEELY & RAHUL GOYAL (IN THEIR CAPACITIES AS RECEIVERS & MANAGERS OF SHYZI PTY LTD (ACN 071 103 396) (RECEIVERS & MANAGERS APPOINTED) ATF THE PHILLEM NO. 1 TRUST AND THE PHILLEM NO. 2 TRUST

SHYZI PTY LTD (ACN 071 103 396) (RECEIVERS & MANAGERS APPOINTED) (IN ITS OWN RIGHT AND IN ITS CAPACITY AS TRUSTEE OF THE PHILLEM NO. 1 TRUST AND THE PHILLEM NO. 2 TRUST)

KATE CONNEELY & RAHUL GOYAL (IN THEIR CAPACITIES AS RECEIVERS & MANAGERS OF OHMUT PTY LTD (ACN 167 697 118) (RECEIVERS & MANAGERS APPOINTED) ATF THE ONE HUNDRED MILE UNIT TRUST) (and others named in the Schedule)

NOMENCLATURE USED TO DESCRIBE THE PARTIES IN THESE ORDERS:

Plaintiffs means Ms Page, the first plaintiff, and Harmat, the second plaintiff.

Shyzi Receivers means Kate Conneely and Rahul Goyal in their capacity as Receivers and Managers of Shyzi as trustee for the Phillem No. 1 Trust and the Phillem No. 2 Trust, together the first defendant.

Shyzi Pty Ltd ACN 071 103 396 (Receivers & Managers Appointed) in its own right and in its capacity as trustee of the Phillem No. 1 Trust and the Phillem No. 2 Trust, the second defendant.

Ohmut Receivers means Ms Conneely and Mr Goyal in their capacity as Receivers and Managers of Ohmut as trustee for the One Hundred Mile Unit Trust (the Ohmut Trust), the third defendant.

Ohmut Pty Ltd ACN 167 697 118 (Receivers & Managers Appointed) as trustee for the Ohmut Trust, the fourth defendant.

Tallywalker Receivers means Tony Miskiewicz and Mr Goyal in their purported capacity as Receivers and Managers of Tallywalker, the fifth defendant.

Tallywalker Pty Ltd ACN 600 692 886, the sixth defendant.

CLAH means CL Asset Holdings Pty Ltd ACN 104 475 345, the seventh defendant.

1. Until 4.00pm on 24 April 2026, and notwithstanding order 1(a) hereof, the Shyzi Receivers undertake not to:

(a) sell, transfer, assign or otherwise dispose of;

(b) attempt to sell, transfer, assign or otherwise dispose of;

(c) enter into any contract for the sale or disposition of; or

(d) complete any transaction for the sale or disposition of,

the property and assets identified and listed in Annexure A (Assets).

1. The Shyzi Receivers undertake that by 4.00pm on 17 April 2026 they will inform the Plaintiffs and CLAH of:

(a) the Assets in respect of which they intend to exercise a power of sale;

(b) in what order they propose to sell any such Assets; and

(c) which, if any, of the Assets they do not at that time intend to exercise a power of sale over.

1. Nothing in the undertakings noted in notation A and B above, prevents the Shyzi Receivers from:

(a) taking steps to preserve, protect or insure the Assets;

(b) obtaining valuations in respect of each of the Assets;

(c) undertaking inquiries with selling agents or brokers in respect of the promotion and marketing for sale the Assets; and

(d) applying to the Court on 3 days' notice to the Plaintiffs to vary or be relieved from this undertaking.

Discharge of previous orders and enforcement of undertakings

1. The interlocutory injunction granted pursuant to:

(a) order 3 of the orders of Justice O'Bryan made on 7 October 2020 (the 7 October 2020 orders) be discharged and the Shyzi Receivers be at liberty to sell, dispose or otherwise deal with any of the property and assets of Shyzi; and

(b) order 4 of the 7 October 2020 orders be discharged and the Ohmut Receivers be at liberty to sell, dispose or otherwise deal with any of the property and assets of Ohmut.

1. Any application for an inquiry into the loss suffered by the Shyzi Receivers, the Ohmut Receivers and CLAH (if any) by reason of the interlocutory injunctions granted pursuant to orders 3 and 4 of the 7 October 2020 orders, is to await the outcome of the taking of accounts pursuant to orders 5 and 15 hereof.

1. For the reasons delivered on 19 December 2025, it is declared that the appointment by CLAH of the Shyzi Receivers as receivers and managers to the property of Shyzi on 11 September 2020 pursuant to cl 14.1 of the General Security Agreement between Shyzi and CLAH was validly made for the purposes of s 418A of the Corporations Act 2001 (Cth).
2. The Shyzi Receivers are liable in their capacity as receivers to render an account in respect of the receivership of Shyzi.
3. Upon the sale of the assets and property of Shyzi listed in Annexure A to these orders and the payment of the net proceeds thereof into Court, the taking of accounts arising from the receivership is referred to a Registrar of the Court.
4. In the taking of accounts pursuant to order 5, the Registrar is to:

(a) determine the correctness of the accounts as between the parties to the accounting;

(b) identify and quantify any interest chargeable on any debt owed by Shyzi to CLAH;

(c) identify and quantify all fees, remuneration, commissions, charges, costs and disbursements claimed or drawn by the Shyzi Receivers as receivers and managers of Shyzi for which Shyzi is liable to pay and the contractual or statutory basis for Shyzi's liability;

(d) identify and quantify all fees, charges, costs and expenses claimed by CLAH in relation to Shyzi's debt to CLAH and the contractual or statutory basis for the claim;

(e) identify and quantify all monies received by the Shyzi Receivers as receivers and managers of Shyzi or to their order from 11 September 2020 to the end date determined by the Registrar; and

(f) identify and quantify all payments made, and liabilities, outgoings and preservation costs incurred by the Shyzi Receivers as receivers and managers of Shyzi.

1. The Registrar is not to revisit the validity of the Shyzi Receivers' appointment, the construction of the contractual instruments, or any issue of liability (including as to the existence of specific debts at particular points in time) which has been determined by the Court.
2. The Registrar may give directions necessary for the efficient taking of the account, including directions as to:

(a) convening case management hearings;

(b) the form and verification of the Shyzi Receivers' accounts;

(c) objections to particular items;

(d) the production of documents; and

(e) the filing of affidavit evidence.

1. The Registrar may receive evidence on oath or affirmation and require the production of documents for the purposes of the taking of the account.
2. Upon completion of the account, the Registrar is to provide a written report stating:

(a) the outcome of the account;

(b) the amount (if any) found to be owing by or to the Shyzi Receivers; and

(c) the Registrar's recommendation as to any orders addressed to the costs of and incidental to the taking of accounts.

1. Any party may file objections to the Registrar's report within 21 days of its provision (or such further period of time as the Registrar may stipulate when providing the written report).
2. Liberty to apply on 3 days' notice:

(a) to the Registrar on the account; and

(b) to the Court in respect of the Registrar's report.

1. For the reasons delivered on 19 December 2025, it is declared that the appointment by CLAH of the Ohmut Receivers as receivers and managers to the property of Ohmut on 30 July 2020 pursuant to cl 14.1 of the General Security Agreement between Ohmut and CLAH was validly made for the purposes of s 418A of the Act.
2. The Ohmut Receivers are liable in their capacity as receivers to render an account in respect of the receivership of Ohmut.
3. Upon the sale of the assets and property of Ohmut listed in Annexure B to these orders and the payment of the net proceeds thereof into Court, the taking of accounts arising from the receivership is referred to a Registrar of the Court.
4. In the taking of accounts pursuant to order 15, the Registrar is to:

(a) determine the correctness of the accounts as between the parties to the accounting;

(b) identify and quantify any interest chargeable on any debt owed by Ohmut to CLAH;

(c) identify and quantify all fees, remuneration, commissions, charges, costs and disbursements claimed or drawn by the Ohmut Receivers as receivers and managers of Ohmut for which Ohmut is liable to pay and the contractual or statutory basis for Ohmut's liability;

(d) identify and quantify all fees, charges, costs and expenses claimed by CLAH in relation to Ohmut's debt to CLAH and the contractual or statutory basis for the claim;

(e) identify and quantify all monies received by the Ohmut Receivers as receivers and managers of Ohmut or to their order from 30 July 2020 to the end date determined by the Registrar; and

(f) identify and quantify all payments made, and liabilities, outgoings and preservation costs incurred by the Ohmut Receivers as receivers and managers of Ohmut.

1. The Registrar is not to revisit the validity of the Ohmut Receivers' appointment, the construction of the contractual instruments, or any issue of liability (including as to the existence of specific debts) which has been determined by the Court.
2. The Registrar may give directions necessary for the efficient taking of the account, including directions as to:

(a) convening case management hearings;

(b) the form and verification of the Ohmut Receivers' accounts;

(c) objections to particular items;

(d) the production of documents; and

(e) the filing of affidavit evidence.

1. The Registrar may receive evidence on oath or affirmation and require the production of documents for the purposes of the taking of the account.
2. Upon completion of the account, the Registrar is to provide a written report stating:

(a) the outcome of the account;

(b) the amount (if any) found to be owing by or to the Ohmut Receivers; and

(c) the Registrar's recommendation as to any orders addressed to the costs of and incidental to the taking of accounts.

1. Any party may file objections to the Registrar's report within 21 days of its provision (or such further period of time as the Registrar may stipulate when providing the written report).
2. Liberty to apply on 3 days' notice:

(a) to the Registrar on the account; and

(b) to the Court in respect of the Registrar's report.

1. For the reasons delivered on 19 December 2025, it is declared that the purported appointment by CLAH of the Tallywalker Receivers as receivers and managers of the property of Tallywalker on 30 July 2020, said to have been made pursuant to cl 13.1 of a purported General Security Agreement between CLAH and Tallywalker dated 6 April 2017 (purportedly amended on 28 August 2018), was not validly made and was of no legal effect including for the purposes of s 418A of the Act.
2. From 30 July 2020, the Tallywalker Receivers had no authority to take possession of, control, or deal with the property of Tallywalker in reliance on the purported appointment.
3. Within 14 days of the date of these orders, the Tallywalker Receivers deliver up to Tallywalker's possession and control items 1 to 30 identified in Annexure C to these orders, including all chattels, plant and equipment, books and records, electronic data, bank account authorities and keys or access credentials relating to the property of Tallywalker.
4. Within 28 days of the date of these orders, the Tallywalker Receivers deliver up to Tallywalker's possession and control items 31 and 32 identified in Annexure C to these orders and any further items or property identified and agreed as having been held by the Tallywalker Receivers as the property of Tallywalker.
5. Within 14 days of the date of these orders, the Tallywalker Receivers provide to Tallywalker:

(a) all books and records created or obtained during the purported receivership relating to the property of Tallywalker; and

(b) a written account of all receipts and payments relating to the property of Tallywalker.

1. Upon compliance with orders 25 to 27 of these orders, order 5 of the 7 October 2020 orders be discharged.
2. Tallywalker has leave to apply for an order that notwithstanding the invalidity of their appointment, the Tallywalker Receivers render an account of all property received and all dealings undertaken pursuant to the purported appointment, such leave to be exercised within 7 days of the making of these orders.
3. Pursuant to s 1322(4)(a) of the Act, any act, matter or thing purported to have been done by Nathan Brooks in his role as sole director of Tallywalker during the period 5 April 2017 to 18 March 2019 is not invalid by reason of any contravention of cl 19.1 of the Constitution of Tallywalker (which requires that Tallywalker has at all times a minimum of two directors).
4. The register kept by the Australian Securities and Investments Commission (ASIC) in relation to Tallywalker, be rectified pursuant to s 1322(4)(b) of the Act to reflect the position that:

(a) Nathan Brooks was appointed director on 12 March 2017;

(b) Anthony Miskiewicz and Rahul Goyal were not appointed as receivers and managers of Tallywalker on 30 July 2020; and

(c) the company was not under external administration on and from 30 July 2020.

1. Order 31 does not affect Tallywalker exercising the leave granted pursuant to order 1 of the orders made on 5 March 2026 to bring a further application to correct the register kept by ASIC, any such application to be brought on notice.
2. Tallywalker commence any claim for compensation it may bring against any person, including the Tallywalker Receivers and CLAH, by reason of the invalid appointment of the Tallywalker Receivers by way of a separate proceeding.

1. The Plaintiffs pay the Shyzi Receivers, Ohmut Receivers, Tallywalker Receivers and CLAH's costs of and incidental to the interlocutory application filed 2 September 2022, which was dismissed on the first day of the hearing.

1. The Plaintiffs, on the one hand, and the Shyzi Receivers, Ohmut Receivers, Tallywalker Receivers and CLAH, on the other hand, bear their own costs of the proceeding.
2. There be no orders as to costs in the proceeding to date as between Tallywalker and the other parties.
3. Liberty to apply on 2 days' notice.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Annexure A

Combined list of assets and property of Shyzi in its own right and as trustee for the Phillem No. 1 Trust and the Phillem No. 2 Trust

1. Property known as 728 Parramatta Rd, Petersham NSW 2049, being the land comprised in Folio Identifier 5/215932.
2. Property known as 55 Lower Washington Drive, Bonnet Bay NSW 2226, being the land comprised in Folio Identifier 264/1233154.
3. Property known as 2/71 Throsby Street, Wickham NSW 2293, being the land comprised in Folio Identifier 2/SP74472.
4. Property known as 5/2-12 Reef Street, Port Douglas QLD 4877, being the land comprised in Folio Identifier 50463925.
5. Motor Vehicle - Mercedes-Benz SL55K Registration No. DGC90G.
6. A two-digit Service NSW licence plate being the number "85".
7. A three-digit Service NSW licence plate being the number "779".
8. Motor Vehicle - 2015 Ferrari 458 Speciale Registration No. DGA19H.

Annexure B

Assets and property of Ohmut as trustee for the One Hundred Mile Unit Trust

1. Property known as 60 Harriett Street, Waratah NSW 2298, being the land comprised in Folio Identifier 112/1112841.

Annexure C

Assets and property of Tallywalker

UDR1500 11-90 1990 (NOTE: NO Serial Plate Located on Rig)

ANDREW JOHN SCOTT IN HIS CAPACITY AS RECEIVER AND MANAGER OF THE PARKWAY ONE UNIT TRUST

NOMENCLATURE USED TO DESCRIBE THE PARTIES IN THESE ORDERS:

Applicant means Andrew John Scott in his capacity as receiver and manager of the Parkway One Unit Trust (Mr Scott).

CLAH means CL Asset Holdings Pty Ltd ACN 104 475 345, the first respondent.

Harmat means Harmat Nominees Pty Ltd ACN 142 615 816, the second respondent.

1. The determination of any account as between Mr Scott and CLAH is deferred pending the completion of the taking of accounts in proceeding VID 659 of 2020.
2. Until further order, Mr Scott is not to be treated as an accounting party in respect of the taking of accounts set to occur in proceeding VID 659 of 2020.
3. Mr Scott is to render such assistance as the Registrar may reasonably direct in relation to the taking of the accounts in proceeding VID 659 of 2020, including by the provision of information, documents, explanations or evidence, but without being required to participate as an accounting party.
4. Upon completion of the taking of accounts in proceeding VID 659 of 2020, Mr Scott and CLAH each have liberty to apply on 7 days' notice for such further directions or orders (if any) as may be necessary in relation to the funds held in Court in this proceeding.
5. Any application by Mr Scott for approval of remuneration, costs or expenses incurred in his capacity as receiver and manager or liquidator may be made by separate application in the usual way.
6. The question of any payment out or distribution of the funds held in Court in this proceeding is reserved pending the outcome of the taking of accounts in proceeding VID 659 of 2020.
7. The costs of Mr Scott and CLAH of and incidental to this proceeding are reserved.
8. Liberty to apply on 7 days' notice.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. These reasons are addressed to disposition of disputes between the parties concerning the orders necessary to give effect to the reasons for judgment in Page v Conneely, in the matter of Shyzi Pty Ltd [2025] FCA 1646. Page concerned two proceedings, heard concurrently, referred to as the Receivership Proceeding and the Distribution Proceeding. Unless otherwise stated, definitions and usages in these reasons have the same meaning as in Page. A short list of the nomenclature used to describe the parties is included in the orders I will make in each proceeding. All paragraph references are to the reasons in Page.
2. After argument, the parties advanced competing proposed orders for the disposition of the two proceedings. There were areas of agreement, and there were areas of dispute, in relation to the final orders that should be made in each of the proceedings. Where the parties were essentially in agreement, I have found it desirable to restructure the orders to more clearly articulate the Registrar's task in taking accounts. Where the parties disagreed, I have considered whether it is appropriate to make the orders which were proposed but not agreed. These reasons are in the main limited to addressing the way in which I have resolved the disputes as to whether particular orders should be made. I will first address the orders necessary to give effect to my reasons in the Receivership Proceeding. I will then turn to the orders in the Distribution Proceeding.
3. During the course of argument, the parties sought clarification in relation to discrete parts of the reasons in Page. It is appropriate to provide that clarification before entering orders to give effect to the reasons and ahead of the Registrar taking accounts. Where it is necessary to do so, I will provide the clarification sought in the final part of these reasons.

1. The dispute on the substance of the orders to be made to give effect to the reasons in Page reduces to the following issues.
2. First, whether the declarations made in respect of the validity of the appointment of the Shyzi Receivers and the Ohmut Receivers should extend to include express quantification of the debt owing by each of Shyzi and Ohmut to CLAH as at the date of the appointment of the respective receivers. CLAH presses for the declarations to include a specific amount as the debt owing as at the date of the appointment. The Plaintiffs oppose the inclusion of that detail.
3. It is sufficient to recall the scope of the controversies required to be resolved in the reasons for judgment. The central contest concerned the validity of CLAH's appointment of the receivers. I found CLAH to have validly appointed receivers to Shyzi and Ohmut on the proper construction of the relevant security agreements. I found the appointment of the Tallywalker Receivers to be invalid. But in any event, and in case my construction of the relevant agreements proved to be wrong, I further found that the Plaintiffs did not establish the factual premise on which they relied. Namely, that each of Shyzi and Ohmut were not indebted to CLAH at the date CLAH appointed the receivers. A critical component of the Plaintiffs' case in this regard was their contention that the funds advanced by CLAH were governed by enforceable offset or trust arrangements; that contention was rejected.
4. Against this background, and as I have mentioned, in case the proper construction of the relevant agreements was successfully challenged, I went on to determine at a factual level the Plaintiffs' argument that there was no relevant debt as at the date of the appointment of the receivers. It was in this context that I made findings to resolve the dispute between the parties as to whether particular advances were made to or at the direction of Shyzi, or alternatively, to or at the direction of Ohmut. I did this by attributing payments described respectively as repayments or alternatively as advances according to the evidence available to me and in the context of the adverse findings I made as to the credibility of the three protagonists and the unreliability of large tracts of the documentary evidence.
5. In these circumstances, the quantification of the debt owed is properly to be confirmed through the taking of accounts, with the Registrar controlling the process, including in relation to the receipt of evidence. The parties accepted that if the appointment of the receivers, or any of them, was found to be valid, it would be necessary for accounts to be taken and that was appropriately to be undertaken by a Registrar.
6. The declarations that I will make will be with respect to the validity of the appointments of the relevant receivers but will not extend to include a specific amount in relation to the debt that, on the evidence in this proceeding, demonstrated that an amount was owing to CLAH as at the date of the relevant appointments. To explain why I take that approach, it is sufficient to note that the inquiry addressed in Page was the existence of indebtedness, not its precise reconciliation or quantum. That was a determination addressed to the factual premise that informed the Plaintiffs' no debt thesis. I rejected the Plaintiffs' overarching construction argument with each of the relevant security agreements construed as all moneys securities: see sections 10.5.2, 10.10.2, 10.11 and 10.12 (the Shyzi Securities); 11.4.2 and 11.5 (the Ohmut/Parkway Securities). In the event, as occurred, that the appointment of the Shyzi Receivers and the Ohmut Receivers was valid, the process of reconciliation was to be undertaken in the taking of accounts. I adopted the same approach in relation to Ohmut: [8]‑[9] and [1798].
7. I will also order that in the taking of accounts in each of the Shyzi receivership and the Ohmut receivership, the Registrar is not to revisit the validity of the relevant receivers' appointments, the construction of the contractual instruments, or any issue of liability already determined by the Court.
8. Second, and relatedly, CLAH seeks to have express reference to the particular debts which I found were owed as at the date of the appointment of each of the Shyzi Receivers and the Ohmut Receivers in the orders relating to the mechanics of the taking of accounts. The Plaintiffs again oppose the inclusion of the detail for which CLAH presses.
9. As mentioned, I will order that the Registrar undertake the accounting process by reference to the debts owed by each of Shyzi and Ohmut and the Registrar will not revisit issues of liability (including as to the existence of any debts at particular points in time). I otherwise do not regard it as productive to include reference to the specific findings in relation to debts owed as at the date of appointment of those receivers who I found to have been validly appointed. Including specific detail of that type has the potential to impede the Registrar undertaking the accounts process in a way that the Registrar determines to be best suited to achieve the overarching purpose mandated by s 37M of the Federal Court of Australia Act 1976 (Cth). I will make orders that give the Registrar power to control the accounts process so that it is efficient, timely and fair.
10. Third, there is a dispute as to whether the orders should reflect that the Ferrari is an asset held on trust by Shyzi or an asset held on trust by Ohmut. For the reasons given below, I will make orders that reflect the admission on the pleadings that the Ferrari is an asset held on trust by Shyzi: see reasons given below under the heading "The Ferrari".
11. Fourth, the Tallywalker Receivers seek an order that they be relieved of any liability that they have or may have incurred but would not have incurred if they had been validly appointed as receivers and managers of the property of Tallywalker. Tallywalker opposes the making of this order.
12. I do not regard it as necessary or appropriate to make the order sought by the Tallywalker Receivers to give effect to my reasons for judgment, particularly over Tallywalker's objection. This is an application for relief that should properly be brought on notice and supported by evidence. It is not an issue that was ventilated in the proceeding and Tallywalker's participation in the proceeding was limited by the fact that it was not under the control of its duly appointed directors. It is not appropriate to make the order sought prophylactically in this proceeding.
13. Fifth, there is a dispute as to the costs order that should be made in this proceeding where costs have been reserved or are otherwise not the subject of a separate order. CLAH seeks an order that the Plaintiffs pay 75% of the costs of the Shyzi Receivers, Ohmut Receivers and CLAH, including all reserved costs. The Plaintiffs seek an order that the Plaintiffs, on the one hand, and the Shyzi Receivers, Ohmut Receivers, Tallywalker Receivers and CLAH, on the other hand, bear their own costs of the proceeding.
14. I have considered the competing positions advanced by the Plaintiffs and the Shyzi Receivers, Ohmut Receivers and CLAH. The order proposed by the Shyzi Receivers, Ohmut Receivers and CLAH omits any reference to the Tallywalker Receivers. In the circumstances of this proceeding, I am satisfied that the appropriate order is that the opposing parties not have the benefit of a costs order in their favour nor the burden of a costs order against them.
15. The discretion as to costs is not exercised by a mechanical application of the usual rule: Latoudis v Casey [1990] HCA 59; 170 CLR 534 at 558 (Dawson J); Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [134] (Kirby J). That is particularly true in the present circumstances. Neither party can be said to have succeeded completely or overall. Each enjoyed only partial success. The factual and legal issues were closely interwoven, such that outcomes on individual issues do not provide a sound basis for attributing costs: Hughes v Western Australian Cricket Association (Inc) [1986] FCA 511; ATPR 40-748 (Toohey J). Further, the principal witnesses for each side were found to be dishonest in material respects, with substantial parts of the oral and documentary evidence rejected in relation to significant parts of the cases that they each advanced. This weighs in exercise of the costs discretion as disentitling conduct: see obiter dictum in Russell v Australian Broadcasting Corporation (No 4) [2023] FCA 1279 at [14] (Lee J). In these circumstances, it is neither just nor practicable to attempt an issue based or proportionate costs order. The appropriate order is that each party bear its own costs. I will order accordingly.
16. Tallywalker does not seek a costs order in its favour. I will make an order that there be no order for costs in respect of Tallywalker.
17. Finally, Tallywalker seeks various timetabling orders in relation to the filing and service of pleadings for any claim for compensation it may bring against the Tallywalker Receivers and CLAH by reason of the invalid appointment of the Tallywalker Receivers (the Potential Compensation Proceeding).
18. Senior counsel appearing for Tallywalker explained that Tallywalker seeks the orders in this proceeding due to a concern that if Tallywalker commenced the Potential Compensation Proceeding by way of a separate proceeding then the parties which are presently defendants in this proceeding may raise issues of Anshun estoppel in the new proceeding (taking its name from Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589). Senior counsel flagged that while the risk of an Anshun estoppel arising may be remote, it is better to avoid that risk by making the orders in this proceeding.
19. This proceeding is already procedurally complex. I will not make the staged timetabling orders in this proceeding that are proposed by Tallywalker. Instead, I will order that for reasons of efficient case management, Tallywalker is to commence any Potential Compensation Proceeding by way of a new proceeding and not as another theatre in this proceeding. The consequence of making an order in those terms should allay Tallywalker's concern about the risk of an Anshun estoppel arising against it. After seeking to bring its claim in this proceeding, there can be no suggestion that by commencing a new proceeding in compliance with the Court's order that Tallywalker will engage in an abuse of process or thereby make an illegitimate forensic choice that may give rise to an Anshun estoppel.
20. Should Tallywalker commence the Potential Compensation Proceeding, then the filing of the proceeding will engage the operation of the Federal Court Rules 2011 (Cth) in the ordinary way, including in relation to the filing of pleadings. Should timetabling orders be necessary to take that matter outside the usual process contemplated by the Rules, application can be made to the docket judge in that proceeding.
21. For completeness, I note that I made orders separately to the orders I will make today in relation to Tallywalker's application to correct the register of companies maintained by ASIC. Relief in the form of orders requiring ASIC to correct the publicly searchable register that it maintains is integral to giving effect to my findings in Page. I also gave leave to Tallywalker to bring any further application in relation to correction of the register which may impact persons who were not parties to this proceeding. That further application if brought is to be brought on notice to the interested parties and may be brought as an interlocutory application in this proceeding.

1. CLAH submits that final orders should now provide for a single, comprehensive taking of accounts, aligned with the accounting to occur in the related Receivership Proceeding. CLAH contends that efficiency is best served by resolving all questions of entitlements, receipts, payments and remuneration in one process under the supervision of a Registrar. CLAH points to the fact that the relevant affairs of Ohmut and Parkway One are factually and commercially intertwined. CLAH seeks to have Mr Scott treated as an accounting party in the process before the Registrar, with any concerns as to burden or scope of Mr Scott's participation addressed through the Registrar's case‑management directions.
2. By contrast, Mr Scott emphasises the limited and neutral character of the relief sought in the Distribution Proceeding. Mr Scott contends that accounts should be taken between CLAH and Ohmut in the Receivership Proceeding, that Mr Scott should not be drawn into that process, and that only after the accounting process is complete should any applications for directions in relation to the funds presently held in Court be addressed if that proves necessary. Mr Scott submits that premature consolidation risks unnecessary cost and complexity in circumstances where the outcome of the primary accounting may obviate, or materially narrow, the issues arising for direction in the Distribution Proceeding. Mr Scott further submits that any scrutiny of remuneration should proceed by approval applications brought in the ordinary way.
3. The Distribution Proceeding was not constituted nor conducted as an accounting dispute. Harmat flagged that it may press for a taking of accounts in order to establish the extent of the respective entitlements to the Parkway Fund of CLAH and Mr Scott as receiver: [1797]. Harmat did not pursue this in the hearing for final relief. In any event, Harmat's position at the hearing was that it would first be necessary to ascertain the quantum of CLAH's debt in the taking of accounts in the Ohmut receivership: [1527]. The outcome of the accounting process in the Receivership Proceeding may materially narrow or obviate the need for further steps. In these circumstances, I have concluded that Mr Scott's sequenced approach is to be preferred. It better reflects proportionality and limits unnecessary duplication and cost.
4. I will however include an order requiring Mr Scott to render such assistance to the Registrar as the Registrar may reasonably direct in relation to the taking of accounts in the Receivership Proceeding. The Court appointed Mr Scott. He acts in two separate capacities pursuant to Court order. First, as the Court-appointed receiver to the property of Parkway One and the Parkway One Trust. Second, as the Court-appointed liquidator of Parkway One. Through his counsel, Mr Scott confirmed his readiness to render such assistance as the Registrar may require of him in the Receivership Proceeding. The orders I will make will reserve to the Registrar the necessary procedural flexibility to efficiently manage the factual overlap involving Ohmut and Parkway One which arises, amongst other things, from the Ohmut/Parkway Facility under which both Parkway One and Ohmut were each borrower. Should it emerge during the account taking process that additional orders are necessary for the effective discharge of the Registrar's task, there will be liberty to apply.
5. Mr Scott also seeks, over CLAH's opposition, orders for CLAH to provide to Mr Scott all evidence upon which CLAH relies to substantiate any claim that CLAH makes that any moneys have been advanced to Parkway One in its own right or in its capacity as trustee of the Parkway One Trust under the Ohmut/Parkway Facility. Mr Scott did not ultimately press for this order to be made: T71.35-43 and T81.15-24.

1. Three discrete issues are raised for clarifications that the parties contend are properly addressed in advance of the Registrar embarking on the process of taking accounts.

1. The first relates to the ownership of the Ferrari. The parties' interest in this issue arises because it appears to be common ground that the Ferrari is an unencumbered asset worth in the vicinity of $1 million.
2. The present ownership of the Ferrari was not an issue in the proceeding. It was admitted on the pleadings that the Ferrari was an asset of the Phillem No. 2 Trust of which Shyzi is the trustee: see PFASOFC at [10]-[11], both of which are admitted in DFACS at [10]. The finding at [17] reflects that admission. No clarification is required.
3. To avoid any uncertainty in the proceedings before the Registrar, I add the following. CLAH submitted that, notwithstanding [17], later passages of the reasons are inconsistent and should be read as finding that the Ferrari was owned by Ohmut (CLAH relies on [736]-[737] and [753]). That submission cannot be accepted. The passages relied upon concern inferential fact-finding directed to the character and attribution of the Ferrari Payment, and to whether that advance was made under the Carrabolla Facility, not to present ownership. Had it not been admitted that the relevant advance was made to Shyzi, I would have found it was made to Ohmut: [752]. That point-in-time analysis addressed in section 10.8.2.1 of Page does not displace the pleaded admission, and CLAH has not sought leave to withdraw it. In circumstances where certain documents pertaining to the Ferrari were not adduced in evidence, it is conceivable that forensic decisions were made on the basis of the admission on the pleadings: see [734] and [736]. CLAH cannot resile from that position now. The orders will reflect the basis on which the proceeding was conducted, namely that the Ferrari is held by Shyzi on trust.

Clarification of indebtedness of Shyzi and Ohmut as at date of appointment of receivers

1. Before turning to the particular clarifications sought, I reiterate what I have said earlier in these reasons as to what was, and was not, determined in Page: see [9] above.

Shyzi's debt to CLAH as at date of appointment of Shyzi Receivers

1. A point of clarification arises as to Shyzi's indebtedness to CLAH at the date on which the Shyzi Receivers were appointed. The dispute concerns whether the debt owed by Shyzi to CLAH as at the relevant date was $315,763.83 or $435,763.83. The difference turns on the proper attribution of a $120,000 payment made on 28 February 2017. The point of clarification turns on whether the $120,000 payment was a payment made in reduction of Shyzi's debt to CLAH or alternatively, in reduction of Ohmut's debt to CLAH. The point of clarification is properly raised in advance of entering final orders and before the Registrar embarks on the process of taking accounts.
2. The Plaintiffs contend that on a proper reading of Page this payment was credited against Shyzi's account, yielding a net debt of $315,763.83 owed by Shyzi to CLAH as at the date the Shyzi Receivers were appointed. By contrast, CLAH submits that on the findings made in Page the payment was applied in reduction of Ohmut's debt, resulting in Shyzi being indebted to CLAH in the amount of $435,763.83 as at the relevant date. Resolution of the request for clarification depends on the correct reconciliation of the findings at [888], [895], [1025] and the summary table at [1078].
3. When the reasons are read as a whole, the $120,000 payment is not found to be a repayment reducing Shyzi's indebtedness, but as a repayment applied in reduction of Ohmut's debt. That conclusion emerges clearly from [888]-[895]. At [888], I recorded CLAH's contention that the $120,000 payment was one of two payments that CLAH treated as having been repaid but which it credited in reduction of Ohmut's liability. In the opening sentences of [893], I observed that CLAH contended that the $120,000 should also be treated as a repayment of debt owed by Ohmut. At [893]-[895], I accepted CLAH's submission that the $120,000 payment was properly attributable as a repayment reducing Ohmut's indebtedness and not as a credit towards any debt owed by Shyzi. These paragraphs constitute the operative findings as to the attribution of the payment of the $120,000 as a reduction of the debt then owing by Ohmut to CLAH.
4. The Plaintiffs' request for clarification has drawn attention to two slips in the reasons in relation to this issue.
5. The first is at [1025]. Properly read, [1025] derives from the operative reasoning which culminates in [895]. In that context, the reference to "Shyzi" at the end of the paragraph is to be understood as a reference to "Ohmut". This paragraph expressly refers to the reasons given (that is, culminating in [895]) where I have expressly found that Shyzi paid the $120,000 on behalf of Ohmut and it is properly treated as reducing Ohmut's debt.
6. The second is the chapeau of [1078]. The paragraph is expressly based on the findings made in the earlier part of the reasons and serves to introduce a table which constitutes a summary of the findings in relation to the debt owed by Shyzi to CLAH as at the date of the appointment of the Shyzi Receivers. The table totals Shyzi's indebtedness at $435,763.83, which is consistent with the earlier findings once the $120,000 repayment is excluded from Shyzi's account. The row in the table that relates to the $120,000 payment reflects that the beneficiary of the repayment is Ohmut, and that debt owed by Shyzi is not reduced by reason of this payment. The table totals Shyzi's indebtedness at $435,763.83, which is consistent with the earlier findings and reflects that the $120,000 payment is not credited to reduce Shyzi's debt to CLAH.
7. The appearance of the figure $315,763.83 in the chapeau of [1078] is a clerical slip. It is inconsistent with both the arithmetic in the table and with the sentence introducing the table, which makes clear that the table summarises the findings made in the earlier part of section 10.15 of the reasons. The figure should therefore be read as $435,763.83, in conformity with the table and the substantive findings elsewhere in the reasons.
8. The Plaintiffs' submission that Shyzi's indebtedness was limited to $315,763.83 depends on an attribution of the $120,000 payment as a repayment of Shyzi's indebtedness to CLAH that the reasons do not support. CLAH's submission accords with the structure and content of the reasons and is accepted. The Page reasons will be reissued with a corrigendum to correct the slips I have identified.

Ohmut's debt to CLAH as at date of appointment of Ohmut Receivers

1. The final point of clarification raised relates to Ohmut's indebtedness to CLAH as at 30 July 2020, the date on which the Ohmut Receivers were appointed, and how particular payments (notably the $120,000 payment and the Andco payments) should be attributed as between Ohmut and Shyzi for that purpose.
2. Before turning to the particular clarifications the context in which the findings are made is as follows.
3. The relevant section of the reasons is section 11 which is addressed to CLAH's underlying claims against Ohmut and Parkway One. The contest on this issue was bounded by CLAH's contention that Ohmut and Parkway One are liable to CLAH in the amount of $3,486,461.98 pursuant the Ohmut/Parkway Facility versus the Plaintiffs' contention that neither Ohmut nor Parkway One owed any debt to CLAH pursuant to the Ohmut/Parkway Facility.
4. Issues 8 to 16 were ultimately directed to whether CLAH made advances under the Ohmut/Parkway Facility. These issues were addressed in the reasons in section 11, particularly in sections 11.7 to 11.10. Relevantly, I rejected the Plaintiffs' contention that the further payments were investment payments made pursuant to an alleged Trust Investment Agreement, no such agreement having been established: [1436]. It followed that there was no discharge, forgiveness or set‑off of Ohmut's liabilities on that basis: [1437].
5. Further, the disputed payments identified in Issues 12 to 15, including the Andco payments and the payment of $120,000 on 28 February 2017, did not negate the existence of Ohmut's indebtedness for the purpose of Issue 16, with questions of reconciliation left to the taking of accounts: [1492]-[1493]. Ohmut was indebted to CLAH as at the date of the appointment of the Ohmut Receivers with the result that the Plaintiffs' "no debt" case failed: [1492]-[1493]. As mentioned, questions of precise reconciliation and quantum were to be addressed in the taking of accounts.

First contention (CLAH) - specify Ohmut's debt as being $1,252,719

1. CLAH seeks in its proposed orders to have the Court now fix a final consolidated dollar figure for Ohmut's indebtedness in the sum of $1,252,719. The Plaintiffs oppose this. As I have said, I am not persuaded that it is appropriate to include this figure in the orders. It is not supported by the reasons in Page in which precise reconciliation and quantum were to be addressed by the Registrar in taking accounts.

Second contention (CLAH) - $120,000 applied in reduction of Ohmut's liability

1. For the reasons given above, the $120,000 payment was found in Page to be a payment made in reduction of Ohmut's liability to CLAH. The Registrar should proceed on that basis in taking accounts.

Third contention - competing contentions concerning [792] and [1453]

1. The Plaintiffs contend that [792] records a finding that the Andco payments (including the $1,000 deposit and the $112,344.99 balance) were not payments to Shyzi falling within the definition of "Secured Money" under the Shyzi securities and were not made under the Carrabolla Facility. On that footing, the Plaintiffs submit that those payments cannot be treated as advances giving rise to secured indebtedness, whether of Shyzi or Ohmut. They argue that [1453], which describes the Andco payments as "in fact an advance to or at the direction of Shyzi", should be read narrowly and consistently with [792] as addressing factual direction or purpose only, not as a finding that the payments were secured or properly brought to account against Shyzi's (or Ohmut's) indebtedness. On this reading, the Plaintiffs submit that the Andco payments do not support the existence or quantum of indebtedness at the appointment date of either of the receivers.
2. By contrast, CLAH contends that [792] is confined to rejecting the characterisation of the Andco payments as drawdowns under the Carrabolla Facility or as Secured Money for the purposes of that specific analysis and does not amount to a finding that the payments were irrelevant to indebtedness altogether. CLAH submits that [1453] reflects the Court's ultimate factual conclusion that the Andco payments were advances made to or at the direction of Shyzi, and that, when read in context and together with the Court's findings on the breadth of the relevant securities elsewhere in the reasons, those advances are properly taken into account in determining whether indebtedness existed, leaving questions of reconciliation and precise attribution to the taking of accounts. On this view, there is no inconsistency between [792] and [1453]; rather, they address different analytical questions.
3. I accept CLAH's reading of the reasons. Paragraph [792] is concerned only with the characterisation of the Andco payments for the limited purpose of determining whether they were drawdowns under the Carrabolla Facility and as such constituted Secured Money under the Shyzi Securities. It is not directed to the broader question of attribution.
4. Paragraph [1453] proceeds on a different analytical footing. There, a factual finding is made as to the substance and direction of the payments, namely that they were made to or at the direction of Shyzi, while leaving questions of reconciliation, accounting treatment and final quantification to be addressed separately.
5. Read in that way, [792] and [1453] are not inconsistent. They address different questions, and the findings concerning the Andco payments do not bear upon, or undermine, the determination of indebtedness. The payment of $112,344.99 made on 22 August 2016 does not appear in the summary table at [1078] because that table reflects findings made at an earlier stage of the analysis. The attributional finding at [1453] is made later in the reasons in my consideration of Issue 14.

Fourth contention (Plaintiffs) - Ohmut not liable for Walkom Payment

1. Belatedly, the Plaintiffs have raised an issue in relation to the Walkom Payment - a $30,000 payment transferred from CLAH to Ohmut's bank account - as one of the disguised payments addressed in Page, including in section 10.8.2.3.
2. The Plaintiffs did this by including in the joint proposed minute of order a notation raising the issue. CLAH objects on the basis that the Plaintiffs did not have leave to make what is effectively an additional submission post-hearing. While that is correct, for the purpose of avoiding the separate ventilation of the issue before the Registrar, I will address the substance of the Plaintiffs' submission.
3. The Plaintiffs' submission is that the quantum of Ohmut's debt should not include or take account of the Walkom Payment because I made no finding that Ohmut was liable for this amount, referencing section 10.8.2.3 and [1450]-[1452] of the reasons. I do not accept that submission.
4. Section 10.8.2.3 is addressed to the issue of whether the Walkom Payment was an advance drawn under the Carrabolla Facility: [755]. It was common ground that CLAH made the payment to an account held by Ohmut: [755]. The circumstances in which the payment was made were controversial: see [755]-[778]. After reviewing the circumstances, I determined that the Walkom Payment showed Mr Baker and Mr Page working together to create a false documentary trail to justify CLAH transferring funds to Ohmut's account: [779]-[780]. I found that the Walkom Payment was not an advance under the Carrabolla Facility and was not an advance to Shyzi so as to come within the definition of Secured Money in the Shyzi Securities: [780]-[782].
5. Paragraphs [1450]-[1452] form part of the analysis on Issue 14 as to whether certain designated amounts were wrongly debited to the Ohmut/Parkway Facility. The designated amounts are listed at [1442]. They do not include the Walkom Payment. In the context of addressing Issue 14, I made an observation to the effect that where payments were made by CLAH to or at the direction of Ohmut or Parkway, then the debts are repayable on demand: [1449]. That observation is orthodox and of general application - where payments are established to have been made by CLAH to Ohmut in the absence of proof of an agreement to the contrary the inference is that the debt is repayable on demand: see [898]. To the extent that the debts fall within the definition of Secured Moneys, the debts are secured by the Ohmut and Parkway Securities: [1449].
6. Pausing here, it was common ground, and I have in any event found that, CLAH paid the Walkom Payment to Ohmut. While that payment has not been proved to be a payment under the Carrabolla Facility as the defendants had contended, it was a payment made by CLAH to Ohmut and, absent proof of an agreement to the contrary, it is apt to infer an obligation to repay on demand; its ultimate treatment is for the taking of accounts. It falls to be considered as part of the taking of accounts in the Ohmut receivership.
7. The Plaintiffs' reference to [1450]-[1452] is misconceived. Those paragraphs are addressed to what findings may be made in relation to the designated further amounts, of which the Walkom Payment is not one.
8. Accordingly, in undertaking the accounting exercise in relation to Ohmut, the Registrar will take into consideration the finding that the Walkom Payment was a CLAH payment to Ohmut, amongst any other evidence that the Registrar may direct to be filed for the purpose of the taking of accounts.

1. I will make orders accordingly. The proceedings will next be listed for case management before the Registrar on a date to be fixed by the Registrar.

I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cheeseman.

OHMUT PTY LTD (ACN 167 697 118) (RECEIVERS & MANAGERS APPOINTED) (ATF THE ONE HUNDRED MILE UNIT TRUST)

TONY MISKIEWICZ & RAHUL GOYAL (IN THEIR CAPACITY AS REEIVERS & MANAGERS OF TALLYWALKER PTY LTD (ACN 600 692 886) (RECEIVERS & MANAGERS APPOINTED))

TALLYWALKER PTY LTD (ACN 600 692 886) (RECEIVERS & MANAGERS APPOINTED)