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General information, not legal advice.
Supreme Court of Victoria
2026-03-02
COSGRAVE J
Original judgment source is linked above.
CONTRACT - Loan agreement - Where alleged loan agreement was not formally documented - Whether loan agreement can be inferred from company books and records - Corporations Act 2001 (Cth) s 1305.
WINDING UP - Voidable transactions - Unreasonable director-related transactions - (Cth) , , .
1 In this case the first and second plaintiffs ("Crispino" and "Albarran" respectively) are the joint and several liquidators of the third plaintiff, Sky High Panels Pty Ltd ("SHP").
2 The liquidators are suing the defendants to recover debt said to be owing. The debt is alleged to arise either as loans made by SHP to one or more of the defendants or as unreasonable director-related transactions or voidable transactions under the Corporations Act 2001 (Cth) ("the Act").
3 The defendants contend that the payments made by SHP were either instalments paid by the second defendant ("Christopher") to the first defendant ("Clem") to buy all of the issued shares in SHP ("Alleged Sale") or represent payment for the supply of goods or work and labour provided by the third defendant ("Smash Corp") for SHP.
4 Clem is Christopher's father and was the sole director of SHP from 15 May 2013 until 1 February 2019. Since 5 July 2022, Clem has been the sole director, shareholder and secretary of Smash Corp.
5 Christopher was a director of SHP from 1 February 2019 until 4 April 2023 and again from 17 April 2023 until 22 August 2024.
6 Christopher was declared bankrupt on 22 August 2024. In the absence of obtaining leave to proceed, the plaintiffs are not pursuing their case against him.
7 In referring to the first and second defendants by their given names, I intend no disrespect. Rather, given their shared surname, I am keen to ensure clarity when referring to parties.
8 Neither the first or second defendant appeared at the trial. I am satisfied that Clem was aware of the trial. He provided written opening submissions to the Court just before the trial. The case was called both in and outside court when the trial commenced. However, Clem did not appear. One of my associates contacted Clem by phone shortly after the trial began and he confirmed that he was aware of the trial.
9 Between 5 April 1993 and 9 May 2022, Clem and Andromaki Kiparoglou were directors and equal shareholders of Smash Corp.[1]
10 Smash Corp was the sole shareholder of SHP between 17 May 2013 and 1 February 2019.
11 From 16 July 2022, Smash Corp operated using the business name "A1 Preferred Smash Repairs".[2]
12 As a result of a resolution passed by the directors of SHP on 20 September 2023, Crispino and Albarran were appointed administrators of the company in accordance with s 436A of the Act. Subsequently, because it was not feasible to enter a deed of company arrangement, SHP went into liquidation and the first and second plaintiffs became the liquidators of the company.
13 By reason of s 588FE(6A) of the Act, the relation-back period began on 21 September 2019 and ended on 7 December 2023.
14 The plaintiffs issued demands for payment to each of Clem and Smash Corp on 19 January 2024 and 15 February 2024.
(a) a debt of $496,587.38 recorded in the Xero management accounts of SHP within an account named "Loan - Clem" ("the Clem account"), together with interest from 19 January 2024, being the date of demand by the liquidator;
(b) alternatively, $217,940.63 paid from SHP to Clem during the relation-back period, on the basis that the payments were unreasonable director-related transactions under s 588FDA of the Act.
16 The liquidators' claim against Smash Corp is for:
(a) a debt of $227,800.84 recorded in the Xero management accounts of SHP within an account named "Loan - A1 Preferred Smash Repairs Transactions" ("the Smash Corp account"), together with interest from 19 January 2024, being the date of demand by the liquidator;
(b) alternatively, $227,800.84 paid from SHP to Smash Corp during the relation-back period, on the basis that the payments were unreasonable director-related transactions under s 588FDA of the Act.
17 Prior to the trial, the plaintiffs prepared a list of issues which they submitted to the defendants for their comment. As the defendants did not respond, these issues represent the plaintiffs' assessment of the situation:
(a) did SHP lend monies to Clem?;
(b) were some or all of the payments to Clem recorded in the books and business records of SHP, consideration for the sale of the business of SHP by Clem to Christopher on or about 1 February 2019?;
(c) based on the answers to issues (a) and (b), for what amount, if any, is Clem indebted to SHP?;
(d) if the payments or any part of them were not a loan to Clem, then, in respect of the $217,940.63 admitted by Clem to have been paid to him by SHP during the relation-back period, would a reasonable person in the circumstances of SHP have made those payments having regard to:
(i) the benefit to SHP in making each such payment;
(ii) the detriment to SHP in making each such payment;
(iii) the respective benefits to other parties of making each such payment; and
(iv) any other relevant matter;
(e) if the answer to issue (d) is "no", is Clem liable pursuant to ss 588FDA, 588FE or 588F of the Act for some or all of the $217,940.63?;
(f) did SHP lend $227,800.84 to Smash Corp?;
(g) were some or all of the payments comprising $227,800.84:
(i) in consideration of, or pursuant to, the sale of business agreement between Clem and Christopher; or
(ii) for the supply of goods, or work and labour provided by Smash Corp to SHP?;
(h) having regard to issue (g), for what amount, if any, is Smash Corp indebted to SHP?;
(i) in respect of the $227,800.84 admitted by Smash Corp to have been paid to it by SHP during the relation-back period, would a reasonable person in the circumstances of SHP have made those payments having regard to:
(i) the benefit to SHP in making each such payment;
(ii) the detriment to SHP in making each such payment; and
(iii) the respective benefits to other parties of making each such payment; and
(j) if the answer to the preceding question is "no" is Smash Corp liable pursuant to ss 588FDA, 588FE or 588F of the Act for some or all of the $227,800.84?
18 Crispino was the sole witness in this proceeding. Crispino has been a qualified and practising accountant since 2011 and a registered liquidator since 2023. He is a member of Chartered Accountants Australia and New Zealand and Chartered Accountants Singapore. He has a bachelor's degree in commerce and economics.[3]
19 Crispino presented as an organised and direct witness. His testimony was governed by, and consistent with, the company books and records which he obtained as administrator and then liquidator of the company. He is plainly an experienced accountant with the relevant expertise needed for working with insolvent companies. Given his expertise and his careful attention to the company records which he recovered, I have no reason to doubt the accuracy of his evidence. I regard him as a reliable and credible witness.
20 The defendants did not give evidence at trial or call any witnesses.
Issues (a) and (b): How should the payments made by SHP to Clem be characterised?
21 The plaintiffs submit that SHP lent Clem $496,587.38. The liquidators do not have any direct evidence of any written or oral loan agreement between SHP and Clem, but they say that this is not unusual in small private companies, which tend to operate with a degree of informality. The plaintiffs therefore contend that the loan should be inferred from the balance sheets of SHP produced from its Xero accounting software.
22 The relevant transactions are set out in the Clem account which commenced in 2013 and operated until 2022. The account statement shows:
23 The plaintiffs also rely on s 1305(1) of the Act, which they say applies by reason of ss 286 and 1306(1)(b) and (6) of the Act. They submit that there is nothing inherent in the Clem account itself which casts doubt on the apparent intention of SHP and Clem that the entries set out in the Clem account be treated as a running balance of indebtedness between them. Further, the defendants failed to appear at trial to prosecute their defence and did not lead any evidence as to the nature of the transactions set out in the Clem account.
24 In his pleadings, Clem does not deny that he received nett payments of $496,587.38. However, he pleads that the payments were not loans, but consideration paid by Christopher (not SHP) for his purchase of the SHP business.[6] In this regard, Clem relies on a document said to be a share sale agreement which states:[7]
I CLEM KIPAROGLOU RESIGNED FROM THE ABOVE COMPANY & RELINQUISHED ALL SHARES, TRANSFERRABLE TO THE
NEW APPOINTED DIRECTOR
CHRISTOPHER JON KIPAROGLOU
...
AS WE AGREED UPON
CHRISTOPHER JON KIPAROGLOU ... AGREES TO PAY $2000 PER WEEK TO CLEM KIPAROGLOU FOR PURCHASE OF BUSINESS IN THE AMOUNT OF $500,000 UNTIL PAID IN FULL.
PAYMENT TO COMMENCE 9/2/2018
The agreement is dated 1 February 2018. Clem now asserts that this is a typographical error and should say "1 February 2019".
25 In response to the suggestion that SHP's funds were used to satisfy Christopher's liability to Clem for the Alleged Sale, the plaintiffs submit that the evidence shows that:
26 In addition, the plaintiffs say that an examination of the Clem account shows:
27 If the Court is not persuaded that the whole of the Clem account was a loan to Clem, then the plaintiffs submit that they would at least be entitled to $248,484.02, being the amount represented in the Clem account before 1 February 2019 (ie the date of the Alleged Sale and Clem's resignation as director of SHP).
28 A loan is a payment of money to someone on the condition that it will be repaid.[16] The essence of the transaction is the promise of repayment.[17] It need not be documented in a formal agreement, nor must the advance of monies earn interest.[18] The existence of a contractual obligation to repay is a question of fact that must, where not express, be found in all of the circumstances,[19] including the nature of the parties and their relationship.[20]
29 The party alleging the existence of a loan bears the onus of proof.[21] Whether a loan contract may be inferred from conduct ultimately depends on the manifest intention of the parties, objectively ascertained.[22] In considering the whole course of dealings between the parties, a contract may be inferred from the parties' acts and conduct.[23] The conduct relied upon must, on an objective assessment, evince a tacit understanding with sufficiently clear terms.[24] Thus, it will only be in clear cases that the courts will infer a contract from conduct in the absence of written or oral communications that evidence the agreement or understanding.[25] Justice Gordon articulated this principle in Re Day as follows:
Where direct proof is not available and satisfaction of the civil standard depends on inference, "there must be something more than mere conjecture, guesswork or surmise" - there must be more than "conflicting inferences of equal degrees of probability so that the choice between them is [a] mere matter of conjecture". An inference will be no more than conjecture unless some fact is found which positively suggests, or provides a reason in the circumstances particular to the case, that a specific event happened or a specific state of affairs existed.[26]
30 Where there is no formal agreement, or where the terms between parties are left largely unarticulated, the actual terms of any contract will also need to be inferred.[27] This requires identifying "what a reasonable person would conclude are terms of the agreement based on what the parties said and did, understood in light of what they knew".[28]
31 In some circumstances, a loan may evidenced by book entries.[29] In GJB Building Pty Ltd v AI&PB Property Pty Ltd ("GJB"), Nichols J recognised that
the fact that payments made by one entity for another have been recorded, and given the description "loan" in that record, might well be evidence of an inferred agreement by one party to lend money to the other in consideration of the other's promise to repay.[30]
32 However, the Court must also consider other relevant evidence from which the parties' intention may be inferred.[31]
33 The case of VL Finance Pty Ltd v Legudi ("VL Finance")[32] arose out of loans allegedly made by a company, Legudi Freehold Properties Pty Ltd ("LFP"), to members of the Legudi family to finance the acquisition of preference shares in another company, Legudi & Sons Pty Ltd.[33] No formal loan agreements existed. The only documentary evidence of the loans comprised the journal entries, the annual general ledger and the financial statements of the companies.[34] The only documentary record of the terms of repayment was that the liabilities of the family members to LFP under the loans were recorded in LFP's financial statements as current assets.[35] In evidence, the family's accountant said that the loans were so recorded because, in the absence of agreement as to a fixed term, an accountant treats such loans as at call.[36] Further, as the whole transaction was effected by means of a round robin of book entries, no money had changed hands.[37]
34 In their defence, the Legudis denied the existence of the debts. In the end, however, little of the defendants' case at trial was devoted to that argument.[38] Addressing the issue of whether the debts existed, Nettle J said:
In the circumstances I think it suffices to say of the book entries point that, in the absence of any suggestion of sham, there is no reason why loans agreed to [be] made by a family company to members of the family cannot be created orally or by conduct and sufficiently evidenced by book entry, and that it is enough to dispose of the consequences of the lack of cash in hand contention to observe that it has been the law since Spargo's case that obligations may effectually be set off one against another, leaving a net balance due, without any money changing hands.[39]
35 As there was nothing in the circumstances of that case to suggest that the relevant book entries did not reflect the parties' intention that a loan between them existed, Nettle J had no difficulty finding loans evidenced by the book entries.[40]
36 In Pascoe v Duarte ("Pascoe"),[41] Hall J considered the question of whether monies paid by the second plaintiff ("Pivotal") to its sole director (the defendant) were to be regarded as loan monies or employee remuneration. As there was no express loan agreement, the plaintiffs contended that the Court should infer the existence of a loan from Pivotal's financial statements.[42] Justice Hall accepted that the evidence strongly pointed to the establishment of a loan account and the advancement of a loan by Pivotal to the defendant.[43]
In the absence of evidence establishing an employment relationship as discussed above, the Court is left with the evidence, including entries in the financial statements of the company and the other documentation to which reference has been earlier made. Whilst the terms "investment", "loan" and "drawings" have variously been employed in the documents concerning various payments identified and/or referred to in SDP14 and SDP15 to Mr Pascoe's affidavit, in my opinion, they do constitute evidence of the making of drawings and payments by way of loan or loans. The evidence given by the defendant in the public examination, although it cannot be regarded as definitive evidence, is, to some extent, at least, corroborative of an inference that otherwise may be drawn from the documents to which reference has been made earlier in this judgment.[44]
38 In Shot One Pty Ltd (in liq) v Day ("Shot One"),[45] the plaintiffs argued that certain payments made to Rising Rocket Pty Ltd ("Rising Rocket") were advanced by loan.[46] The alleged loan agreement was not documented.[47] The plaintiffs sought to infer the existence of the loan from the entries recorded in a loan account in the name of Rising Rocket, which had been created in the MYOB management accounts of Shot One Pty Ltd ("Shot One").[48]
39 Justice Sloss found that there was insufficient positive evidence to support an inference that a loan agreement existed between the companies as a matter of fact. Her Honour stated that
what is lacking in the present case is any cogent evidence which supports the existence of an agreement between Rising Rocket as borrower and Shot One as lender, indicating that the payments made by Shot One to Rising Rocket and recorded by Mr Grano in the Rising Rocket loan account were payments made by Shot One by way of loan that were intended to be repayable by Rising Rocket. The plaintiffs bear the burden of proving that each advance of money was by way of loan, rather than by way of gift: see Heydon v Perpetual Executors, Trustees & Agency Co (WA) Ltd. That onus is not discharged by mere proof of the payment itself. Further, the styling of an account as a "loan account" in the MYOB management accounts does not evidence the making of a loan and an agreement to repay, nor does it supply the terms and conditions on which the "loan" was alleged to have been made. But even if that were sufficient to evidence indebtedness, in my view, the subsequent adjustments that Mr Jasper made to the loan accounts by journal entries on the instructions of Nicholas Day, in the course of the preparation of Shot One's financial statements call into question the accuracy or reliability of the MYOB management accounts, and render them an unsatisfactory basis for the making of inferential findings by the Court. ...
In the absence of any direct evidence of a loan agreement between Rising Rocket and Shot One, the Court must feel an actual persuasion of the occurrence or existence of the loan before it can be found as a fact. For the reasons discussed above, and notwithstanding the prima facie presumption arising under s 1305(1), when regard is had to the totality of the evidence available to the Court during the evaluative phase, there is real doubt about whether any alleged indebtedness on the part of Rising Rocket to Shot One could ever be made out. In the circumstances, I am not satisfied that the Court could proceed to find the existence of the Rising Rocket loan as a fact or indeed the quantum of any such alleged indebtedness. [49]
40 In Michell v Onroad Offroad Pty Ltd ("Michell"),[50] the plaintiff sought to recover approximately $1.3 million as a debt from the defendant ("Onroad"). The plaintiff's case was that between 2010 and 2015, Onroad's financial statements and tax returns recorded a "Loan to Director" account with an outstanding balance of over $1 million.[51] In Onroad's books of account, journal entries recorded a series of debts from the "Loan to Director" account to Hill (the sole director of Onroad from 1998 to 2014) which appeared to reduce the outstanding balance. Relying on Onroad's financial statements and journal entries, the plaintiff asked the Court to infer the existence of a loan agreement between Onroad and Hill, whereby the payments to Hill were repayments of the advance under the alleged loan agreement with Onroad.[52] There was no written documentation detailing a loan agreement and there was limited evidence regarding the origins of the loan account.[53] The payments from Onroad to Hill were not clearly described as repayments of a loan.[54] Hill denied that she ever advanced money to Onroad and said that she was never financially in a position to do so.
41 Justice Digby found that the plaintiff failed to prove the existence of the alleged loan agreement.[55] His Honour accepted that the books of account were prima facie evidence of the debit and credit entries in the "Loan to Director" account by reason of s 1305 of the Act, but did not consider that the accounting entries alone sufficed as proof of the underlying loan.[56] This was especially so given Hill's "direct and persuasive evidence" that she was never in possession of funds approaching $1 million that she could advance to Onroad. There was also a suggestion that the accountant had created a book entry by shuffling figures as opposed to real money for tax purposes.[57]
whether there is a loan agreement as pleaded and asserted by the plaintiff depends on the objective intention of the defendant and Hill at the time the agreement is alleged to have been formed. Such evidence is wholly absent, whereas the direct evidence from Hill on the matter, largely corroborated by Townsend in key respects, is wholly antithetical.
In my view, in the context of the entire body of evidence before the Court, the success of the plaintiff's claim requires more than bare deemed proof of the existence of an account and proof of the debits and credits in the defendant's books of account and related accounts. The plaintiff is, as explained above, required to prove the existence of an underlying loan agreement between Hill and the defendant and the advance made thereunder.[58]
43 In Hylepin Pty Ltd v Doshay Pty Ltd ("Hylepin"),[59] O'Bryan J considered the question of whether the advances of money made by Doshay Pty Ltd ("Doshay") to various other entities were to be regarded as loans or misappropriation of funds in breach of fiduciary duty.[60] His Honour found that the advances made by Doshay, usually without a formal loan agreement and in a number of instances on an interest-free basis, were not dishonest misappropriations of funds but rather interest-free loans made by Doshay repayable on demand.[61]
[t]he question whether an advance of money from one company to another is a loan or a misappropriation of funds is ultimately a question of fact. As stated by Lee J in Radilo Enterprises, a loan is a payment of money to or for someone on the condition that it will be repaid. It is not a condition of a valid loan that it be documented in a formal agreement; nor is it a condition that the advance of monies earn interest. The transaction must be considered in its context to determine its character. Relevant to that context is the nature of the parties to the transaction and their relationship.[62]
45 His Honour rejected the plaintiff's submission that the absence of documentation for an interest-free and unsecured loan indicated that the transaction was not a loan at all.[63] It was sufficient that the transactions were recorded as loans in Doshay's financial statements and the accounts of the borrowing entity.[64] For the most part, there was no challenge to the accuracy of the accounts.[65]
46 As to the nature of the parties and their relationship, it was relevant that:
47 In GJB, there was an account ledger described as "Loan - Trimont Pty Ltd" in the accounts of CornoNero Pty Ltd ("CornoNero") (the second plaintiff).[67] Considered in isolation, the ledger might be thought to support the existence of a loan between CornoNero and Trimont Pty Ltd ("Trimont") (or, more accurately, a running account by which it was to be inferred that Trimont and CornoNero had agreed to extend credit to one another).[68] However, there was a considerable body of evidence weighing against the proposition that the amounts advanced were in the nature of loans. In particular, the evidence established that:
48 Absent proof of a consensual financing arrangement, Nichols J considered that the loan account ledger itself did not sufficiently evidence the existence of a loan (or line of credit extended by consent).[70]
49 Her Honour accepted the proposition that, generally speaking, where evidence shows that a gift was not intended (or in the absence of circumstances to suggest that monies paid away were a gift), it might be readily inferred that monies paid by one entity to another were by way of a loan.[71] However, that binary analysis did not assist in that case as there was another characterisation available: that the monies were neither gifted nor lent, but rather taken and paid away without CornoNero's consent.[72] Hence, her Honour ultimately found that various payments that were made from CornoNero's bank account were made by its directors in breach of their fiduciary duty to the company.
50 Delta Resource Management Pty Ltd (in liq) v McKay ("Delta")[73] concerned a summary judgment application brought by the plaintiff to recover $815,792.41 which, it alleged, was advanced to the defendant by way of a loan. The plaintiff company's general ledger and balance sheet recorded a loan account described as "Loan to M McKay".[74] There was no written instrument which recorded a loan arrangement between the plaintiff and the defendant.[75] Nevertheless, Lundberg J was satisfied that the plaintiff had conclusively demonstrated that a loan arrangement existed between the parties.[76] In addition to the general ledger and balance sheet, his Honour also had regard to the quantum of the loan, the reconciliation exercise conducted by the liquidators, and the size and profile of the plaintiff company:
51 His Honour also considered the question of whether any of the material before him displaced the prima facie operation of s 1305. Upon reviewing the bank statements and general ledger references, his Honour was satisfied, to the summary judgment standard, that of the $815,792.41 paid by the plaintiff to the defendant, $745,444.36 had been advanced pursuant to the loan arrangement.[78] The balance, being $70,348.05, comprised of either:
52 Where an entry was described as a "prepayment", his Honour considered that there was an arguable basis for the payment to have been advanced to the defendant under some other arrangement, not being for the purposes of the loan (for example, as a drawing paid to a director or as a prepayment of an invoice for services to the company). Further, where the bank statement did not expressly record the payment as being for a "loan", his Honour harboured some doubt as to whether the reference in the general ledger to the corresponding amount could be accepted on its face, to the confidence required on a summary judgment application, as being part of the loan arrangement. Thus, the defendant was to be given an opportunity to present a defence in respect of those amounts at trial.[80]
53 In making the above findings, Lundberg J emphasised that
the assessment at this stage must meet the high bar required for a summary judgment application. It must also be remembered that this is a case in which the plaintiff's claim rests upon no written instrument, but relies upon secondary material to demonstrate the existence of a loan. This is why a line by line assessment of the plaintiff's claim is required, rather than an en bloc characterisation.[81]
54 Section 1305(1) of the Act provides that "[a] book kept by a body corporate under a requirement of the Act is admissible in evidence in any proceeding and is prima facie evidence of any matter stated or recorded in the book".
55 Section 286 of the Act requires a company to keep written financial records that:
(a) correctly record and explain its transactions and financial position and performance; and
(b) would enable true and fair financial statements to be prepared and audited.
56 "Book" is defined in s 9 of the Act to include "financial reports or financial records, however compiled, recorded or stored".
57 Section 1306(1)(b) states that a book may be kept or prepared by recording or storing the matters concerned by means of a mechanical, electronic or other device.[82] Section 1306(6) also provides that a writing that purports to reproduce a matter recorded or stored by means of a mechanical, electronic or other device is, unless the contrary is established, taken to be a reproduction of that matter.
58 It is uncertain whether s 1305 of the Act is alone sufficient to prove the existence of a transaction recorded in a book if the facts do not raise any suggestion that the book or account might be unreliable. The authorities appear to be somewhat divided on the effect of s 1305 if there is no additional evidence available which either substantiates or contradicts the existence of a transaction recorded in a company's books.
59 In Australian Securities and Investments Commission v Rich ("ASIC v Rich"),[83] Austin J made the following observations about the effect of s 1305(1):
The statement in s 1305(1) that the company's books are prima facie evidence of a matter stated or recorded in them does more than merely to convey that they are the starting point to proof or a "first view". All other things being equal, the fact that a matter is stated in a book kept by a company is sufficient to prove that matter in civil proceedings. That does not reverse the onus of proof in the proceedings in any general way, but it means that the tendering of the book is evidence of the matter recorded in it, and that matter will be thereby proven unless other evidence convinces the tribunal of fact to the contrary, on the balance of probabilities.
Section 1305(1) does not make the company's books conclusive evidence of the matters they contain, in the sense of requiring the tribunal of fact to make a finding in terms of the content of the books in the absence of proof to the contrary by the opposing party. The books are prima facie evidence of the matters stated in them, but the weight of that evidence is to be measured in accordance with the common sense of the tribunal of fact (Malek HM, Auburn J, Bagshaw R, Phipson on Evidence (16th ed, Sweet and Maxwell, 2005), at [7-17]).
In my view it would be open to the tribunal of fact to find that the prima facie evidence constituted by the company's books is outweighed by other evidence (including evidence adduced by the proponent of the books, even if the opponent does not give evidence about them); or by some quality or characteristic of the books themselves, even if there is no other evidence. In particular, if a book has the appearance of a draft or (being electronic) has a file title indicating that it is a draft, that alone may be sufficient (all other things being equal) for the tribunal of fact to reject the book as evidence of the matter stated in it, notwithstanding that the book is prima facie evidence of that matter; a fortiori if, in addition to having the appearance of a draft, the book contains inconsistencies or ambiguities or the matter otherwise demands explanation.
My view as to the meaning of the subsection is consistent with the explanatory memorandum to the Companies Bill 1981, which introduced the provision. The explanatory memorandum, which I also quoted in my judgment on the admissibility of corporate records (Australian Securities and Investments Commission v Rich [2005] NSWSC 417; (2005) 191 FLR 385 at [225]), said:
This is a new provision based on s-sec 156(3) of the Ontario Business Corporations Act. It is an evidentiary provision that is intended to expedite legal proceedings where books are to be introduced in evidence. This provision obviates the need to call witnesses to prove that books are books of the corporation when this fact is not in question or to prove transactions recorded in books when these matters are not in dispute.
Therefore s 1305(1) allows a company's books to be introduced into evidence as they are, without any "authenticating" evidence by any witness, and allows the books to be relied upon to prove transactions recorded in them. But it does not elevate matters contained in the books to a plane of probative value that requires the court to disregard the context in which the matters relied on appear in the tendered document. If, for example, there is some doubt as to whether a particular transaction is "recorded" in a book because of some uncertainty about the status of the document or ambiguity about what it contains, s 1305(1) does not overcome the problem.[84]
60 For the most part, Austin J's exposition of principle in ASIC v Rich is not controversial. However, the suggestion that the fact that a matter (including a transaction) is stated in a book is sufficient to prove that matter in civil proceedings, all other things being equal, does not sit comfortably with the statement by the Full Federal Court in Whitton v Regis Towers Pty Ltd ("Whitton") that s 1305 "does not elevate the entry to prima facie evidence that any such transaction (or series of transactions) exists".[85]
61 Whitton concerned a proof of debt submitted by an administrator of a company, which was based on the books of the company. The primary judge found the company books to be insufficiently reliable. On appeal, the Full Court examined the accounts. Some entries in the ledger entries were identified as payments actually made. Some were identified as receipts. However, there were many journal entries, including "balancing entries", which were the outcome of an undisclosed process of judgment or inference by the staff in the accounting firm, who compiled the accounts retrospectively after the company went into administration. The Full Court then said of one of the balancing entries:
The particular entry (and many others) is not a direct record of an actual transaction. Section 1305 of the Corporations Act does not elevate the entry to prima facie evidence that any such transaction (or series of transactions) exists. It can be no more than prima facie evidence that an unknown person formed an opinion on an undisclosed basis that, in the absence of any directly recordable transaction nevertheless, as a balancing entry, such a figure should appear in the accounts. Mr Harris took the matter no further and, indeed, eroded any weight the entry may have had.[86]
62 The Victorian Court of Appeal applied Whitton in Livingspring Pty Ltd v Kliger Partners ("Livingspring"), where Maxwell P and Buchanan JA said the following:
LS called in aid on the appeal s 1305(1) of the Corporations Act, which, it was said, established "a presumption that company accounts are prima facie true and correct and accurate". The provision does no such thing. All that s 1305(1) provides is that a company's books (relevantly, its financial reports and records) are admissible and are "prima facie evidence of any matter stated or recorded" in them. As the Full Federal Court said in Whitton v Regis Towers Real Estate Pty Ltd, s 1305 does not elevate an entry in a book of account to the status of prima facie evidence of the transaction(s) which the entry purports to record. The same must be true of an entry purporting to record the existence, and value, of an asset.[87]
63 Livingspring concerned an application for leave to appeal from an order that Livingspring Pty Ltd ("LS") give security for costs. There was an item in the LS balance sheet described as "Trust accounts: legal fees - $1,283,623.35" which had been classified as an asset. However, of the original $1,283,623.35 that had been placed in a trust account and designated for the payment of legal fees, around $1,203,000 had already been expended. The trial judge concluded that LS was unable to satisfactorily explain how moneys already expended on legal fees could be treated as an asset. LS initially sought to challenge this conclusion on the basis that it had in fact treated the amount as an asset. However, during the hearing of the appeal LS abandoned this contention and conceded that this so-called "asset" had to be disregarded. The Court said that
[t]he significance of this concession can hardly be overstated. The treatment of amounts already expended on legal fees as an asset was never seriously defensible. ... The inability of LS to provide any justification to the judge for the inclusion of this $1.2m "asset" inevitably cast doubt on the reliability of the accounts as a whole.[88]
64 It is worth noting that both Livingspring and Whitton involved accounting entries of dubious origin which were indefensible. There was, to quote ASIC v Rich, "some uncertainty about the status of the document or ambiguity about what it contains",[89] which led the Court in both cases to attribute little weight to the accounting entries.
65 In Warwick Entertainment Centre Pty Ltd (rcs and mgrs apptd) v Silkchime Pty Ltd (recs and mgrs apptd) (No 2) ("Warwick"),[90] the applicant (Warwick) claimed that the respondent (Silkchime) was indebted to it in the sum of approximately $12.7 million as a result of inter-company loans. The debt was recorded in a loan account between the parties in the financial accounts of both parties.[91] Justice Le Miere considered the operation of s 1305 and stated as follows:
Section 1305 only provides that the company's books are prima facie evidence of the matters stated or recorded in the books. It is open to Silkchime to adduce evidence to counter that prima facie evidence ... In [Livingspring] Maxwell P and Buchanan JA held that s 1305(1) does not establish a presumption that company accounts are prima facie true, correct and accurate and adopted the statement of the Full Federal Court in [Whitton] that s 1305 does not elevate an entry in a book of account to prima facie evidence that any such transaction or series of transactions exists. ...
The relevant entries in the books of Warwick and Silkchime essentially fall into two categories. The first category consists of direct records of transactions in the form of advances or loans by Warwick to Silkchime. They are evidence that the persons who made the entries and supervised the accounts had documents, or instructions from persons involved in the transactions or other grounds for recording those transactions. The second category consists of debiting capitalised interest. In relation to the debiting of capitalised interest, such entries are evidence that the persons who made, and supervised, the entries were instructed by a director or employee of the companies with knowledge of the basis on which the monies were advanced or had other grounds to form the opinion that interest was to be capitalised at the applicable rate.
The books of Warwick and Silkchime are prima facie evidence of the matters recorded in them. The books are prima facie evidence that Warwick loaned amounts to Silkchime and that Silkchime was indebted to Warwick for principal and interest in the sum of $12,706,904.
Having regard to the evidence of and concerning the accounting records of Warwick and Silkchime and the RATAs, it should be found that Silkchime is indebted to Warwick in the sum of $12,706,904 unless there is evidence to the contrary.[92]
66 In Warwick, the evidence established that the applicant made loans to the respondent in amounts entered in the accounting records of the parties except for the amount of $701,634, which was paid to reimburse construction costs incurred by a third party, not Silkchime. Accordingly, Le Miere J found that Silkchime was indebted to Warwick for the amount of $12,706,904 less $701,634 and less interest accrued and capitalised on a latter sum.[93]
67 In Termine v Witches in Britches Pty Ltd,[94] Witches and Britches Pty Ltd ("Witches") claimed that Daniel Termine ("Daniel") owed it various amounts. Those amounts were recorded as debts in the books and records of Witches, as well as the property development companies which the plaintiff had a half share in.[95] Witches called in aid s 1305(1) of the Act. Daniel submitted that the fact that the amounts were recorded in the books of account did not mean that the transactions took place and relied upon Livingspring. After noting that, in Livingspring, there was evidence that showed the accounts were not accurate, Ferguson JA concluded that "weight should be given to what is recorded in the books of account as it is consistent with Daniel's own evidence that the amounts advanced were advanced as loans. Indeed, there is no evidence to the contrary".[96]
68 In McAdam v Chylos Pty Ltd ("McAdam"),[97] the Full Federal Court affirmed the principles expressed in Whitton and Livingspring, although the outcome of McAdam differed. Consistently with Whitton and Livingspring, the primary judge stated that s 1305 did not have the effect of elevating a book entry to the status of prima facie evidence of the transaction which it recorded.[98] However, the accounts for the year ending 30 June 2000 provided prima facie evidence that a director of Chylos (probably Mr Smedley, who signed those accounts) believed that the McAdams owed money to Chylos.[99] When taken together with the "negative evidence" from which he inferred that there was no dispute about the loans up to and including 2005,[100] his Honour found that the loan entries in Chylos' accounts reflected "an underlying reality which was accepted".[101] On appeal, the Full Court held that the primary judge did not misapply s 1305 of the Act (nor did he err in drawing the inference that the loans were not in dispute).[102]
69 In Re Fixed Interest Pty Ltd ("Re Fixed Interest"),[103] the plaintiffs sought the reversal of decisions of the defendant liquidators to reject four proofs of debt and instead to have those proofs admitted. The first, second and fourth proofs of debt related to amounts said to be owed on loan accounts. The third proof of debt contained a component that was said to be owed on loan account.[104] In order for the Court to determine whether to change the liquidator's decision, a fundamental issue was whether the liability claimed in the proof of debt was in fact a liability of the company.[105] Justice Brereton answered this question in the affirmative and reversed the liquidators' decision.[106] An important factor was that there was no reason to doubt the accuracy of the ledgers and the balance sheet (which corresponded with the ledgers).[107] His Honour took the view that
[q]uite apart from their status under Corporations Act, s 1305, the documents are plainly business records of the company, and evidence of the representations that they contain. No doubt has been raised as to the reliability of the ledgers and the balance sheets to which I have referred. Even without the provisions of s 1305(1), they would evidence the existence of the relevant debt. That position is fortified by the presumption raised by s 1305(1); but there has been no serious suggestion that the ledgers are fabrications or contain false or incorrect entries. The process by which they were brought to account on a daily basis has been explained and, as it seems to me, it is telling that they correlate each year with the company's financial statements.[108]
70 In Hoh v Ying Mui ("Hoh"), the Victorian Court of Appeal noted that there may be a tension between the decision of Livingspring (following Whitton) and ASIC v Rich, but considered it unnecessary to explore it in the context of that appeal. The Court reiterated the basic principle that "where a party to a legal proceeding relies upon financial statements of a company as proof of a contested fact, the court is required to consider all the evidence and attribute such weight to the entries in the financial statements as is appropriate in the context of the evidence as a whole".[109]
71 In Australian Karting Association Ltd v Karting (New South Wales) Inc,[110] the New South Wales Court of Appeal similarly acknowledged the tension in the authorities which the Hoh decision referred to. The Court of Appeal also concluded that the circumstances of the case did not require it to resolve the possible inconsistency.[111]
72 In Carna Group Pty Ltd v Griffin Coal Mining Company (No 6),[112] McKerracher J observed that
[t]he effect of the statutory proof mechanisms appears to be overstated. The starting point is the Evidence Act. It may be accepted that each document could be admissible as a business record under s 69 of the Evidence Act and would thereby be evidence of the truth of the matters that the document represented. ...
Taken at their highest and assuming the relevant documents were supported by s 1305(2) of the Corporations Act, all that the documents show for the most part is that Carna made claims for such amounts or, in some instances, recorded some unproven underlying data on which certain claims were later based.
To consider an analogy with company board minutes which also have an evidentiary enabling provision, assuming that the minutes of a meeting fell within the scope of s 1305 of the Corporations Act, the minutes constitute "prima facie evidence" of any matter stated in them. The minutes are not actual evidence of matters or documents referred to in them.[113]
73 In Australian Securities and Investments Commission v M101 Nominees Pty Ltd (in liq) (No 8),[114] Button J said:
Even where a company's "book" is tendered and s 1305 of the Corporations Act applies, it is clear on the authorities that the Court is to accord these records such weight as the Court considers they warrant, viewed in the context of other evidence and the qualities and characteristics of the records themselves. It is not the case that the Court must treat the content of the record as conclusive in the absence of other evidence; the Court applies its common sense.
In a literal sense, all that the general ledgers establish is that an unknown person, at an unknown time, recorded the issue of units in the relevant unit trusts with a date of 20 December 2019. There is no basis on which to conclude, even on the face of the general ledgers, that the entries were made on 20 December 2019. Moreover, in circumstances where the evidence shows that no action was taken to execute the documents needed to give effect to the equity swap until March 2020, and where reports to PAG continued to be presented on a basis that would have made no sense at all if units had been issued, I do not consider that the general ledgers provide a sufficient (or indeed any) basis to conclude that the debt to equity swap was "effective" as at 20 December 2019 and the documentation merely lagged behind.[115]
74 In South Seas Holdings Pty Ltd (Trustee) v Commissioner of Taxation,[116] Colvin J said the following in relation to s 1305 of the Act and s 69 of the Evidence Act 1995 (Cth):
Those statutory provisions allow for "business records" or certain "books" kept by a body corporate to be received in evidence. The records themselves are received as evidence of the truth of the matters they represent. However, the provisions do not confer any particular evidentiary status upon those records. In particular, resort to s 1305 does not make the contents of records admitted under the provision conclusive in the absence of evidence to the contrary. Like any evidence, records admitted under the statutory provisions must be weighed and considered with other evidence.[117]
In this case, there was a very detailed attack upon the credibility of Mr Gould, the person responsible for directing the relevant entries to be made in the accounts, and the foundation that he advanced for relevant entries in the accounts.[118]
75 I consider that the applicable principles regarding whether a loan can be inferred and the effect of s 1305 can be summarised as follows:
(a) in the absence of any suggestion of sham, there is no reason why a loan cannot be created orally or by conduct and sufficiently evidenced by book entry.[119] However, this is not to say that book entries will necessarily establish the existence of a loan unless a sham is shown - rather, all evidence that might bear on the parties' intention must be considered.[120] This includes the context of the transaction, such as:
(i) the nature of the parties and their relationship, the quantum of the loan, any reconciliation exercise conducted and the size and profile of the companies involved; [121]
(ii) the potential inconsistency of the existence of the alleged loan with other contracts to which the company is a party, and any other requirements including those under the company constitution;[122]
(iii) whether, in the context of the company's financial situation, there was no commercial sense in agreeing to such a loan;[123]
(b) where there is nothing to suggest that the relevant book entries did not reflect the parties' intention that a loan between them existed, and no real case is put that the debts in question did not exist and were mere book entries, this may tend in favour of an inference that a loan existed;[124]
(c) evidence casting doubt on the accuracy or reliability of the documents used to infer the loan may render them an unsatisfactory basis on which to make that inference.[125] On the other hand, if there is no challenge to the accuracy of the documents, this may support the making of the inference;[126]
(d) in assessing the evidence, a court can rely on the prima facie evidence which can be found in a company's books and records in accordance with s 1305(1).[127] However, the weight of that evidence is to be measured according to common sense,[128] and in the context of the entire body of evidence before the Court.[129] It may be outweighed by other evidence, or some quality or characteristic of the books themselves, even if there is no other evidence.[130] The relevant considerations will depend on the circumstances. For example:
(i) where the reliability of the books is in question, s 1305 will not elevate disputed book entries to prima facie evidence that such transactions exist.[131] This could occur where the accounts are marked "draft", where there are different versions of the accounts with inconsistent entries or where accountants compiled the accounts retrospectively through an undisclosed process involving judgment and inference. Similarly, where there is some indefensible aspect to the accounts, such as the unexplained inclusion of $1.2 million already expended on legal fees as an "asset" in the company's balance sheet, this will cast doubt on the reliability of the accounts as a whole;[132]
(ii) where there is evidence which may mitigate against the prima facie acceptance of the books and records, such as where there are other findings of fact firmly adverse to the quality of corporate management by a sole director, a court is not obliged to accept at face value and for all purposes, the existence and efficacy of challenged underlying transactions referred to in the documents;[133]
(iii) if there is direct and persuasive evidence that no loan existed, such as a lack of sufficient funds on the part of the alleged lender and indications that the book entries had been created by "shuffling figures" for tax purposes, proof of the loan's existence will require more than just deemed proof by way of the books of account and related accounts;[134]
(iv) on the other hand, where no doubt is raised as to the reliability of the books and records, an inference that the debt existed may be fortified by the presumption raised by s 1305(1).[135] Likewise where the existence of the loan is consistent with other evidence and there is no evidence to the contrary;[136]
(v) where there have been thorough investigations by the liquidators to identify relevant documentation and trace the loan, identifying the individual payments made to the defendant over time by reference to bank account statements, those investigations may help to fortify the Court in finding the existence of that loan;[137] and
(vi) it may not be unusual for a company of a small size and profile to have failed to formally document a loan arrangement with a director.[138]
76 The plaintiffs rely upon the Xero records of the Clem account to establish both:
(a) the quantum of Clem's indebtedness (as disclosed by the closing balance as at 2 December 2022); and
(b) the characterisation of the payments as loans (to be inferred from the title of the account).
These are two distinct enquiries. I will address both in turn.
77 Clem does not deny that a nett sum of $496,587.38 was paid to him. His point appeared to be that the money represented in substance payments by Christopher for the purchase of the business and not loans. However, Clem never explained or grappled with how the financial records of the company maintained in the Xero accounting software characterised the financial transactions as loans rather than the payment for shares which Clem sold. SHP is required by the Act to maintain financial records which correctly record its financial position and performance and enable financial statements to be prepared.[139] Section 1305 then makes admissible in evidence any book kept by a body corporate under the requirements of the Act. Hence, the documentary records purporting to be books kept by SHP under the Xero system are taken to be relevantly admissible books for the purposes of the Act.[140]
78 I now turn to the question of whether the payments were loans. As Lehane J observed in Tosich Construction Pty Ltd (in liq) v Tosich, while accounting entries reflect, and may provide evidence of the nature of, the underlying transaction, the character of the underlying transaction principally depends on the intention of those who entered into it.[141] Such intention must be objectively ascertained.[142]
79 Clem seeks to characterise the payments received by him as consideration paid by Christopher in exchange for all of the shares in SHP. On the evidence before the Court, this position is not established. I accept the plaintiffs' submissions regarding why the payments to Clem could not have been made pursuant to the Alleged Sale, namely that:
80 In these circumstances, I am not satisfied that any of the payments by SHP to Clem recorded in the Clem account represented consideration for the Alleged Sale.
81 The next question is whether the Court should infer that SHP lent Clem $496,587.38. The plaintiffs bear the onus of proving that the payments took the form of a loan. That onus is not discharged by mere proof of the payment itself.[143] As Nichols J observed in GJB, a payment by one entity to another might establish an indebtedness between the parties, but the fact that a payment creates a debt does not, of itself, mean that the payment was made pursuant to a loan.[144]
82 On its face, and having regard to s 1305, the use of the word "loan" in the account title does suggest that the account was to be treated as a running balance of indebtedness between Clem and SHP. However, the styling of an account as a loan account in a company's accounting software is not determinative of the character of the transactions recorded therein.[145] The Court must consider the totality of the evidence before it.
83 The documentary evidence available in this case is limited. Crispino gave evidence that when he and Albarran were appointed as administrators of SHP in 2023, they were granted access to the company's Xero accounting software and their staff received bank statements when they attended SHP's office. SHP (and its employees and agents) did not produce any further documents despite the plaintiffs issuing demands for books and records to SHP's bookkeeper, accountant and director.[146] Additionally, Clem did not attend the trial to give evidence or call any witnesses. As a result, the Court is left with:
(a) the transactions recorded in Xero under the Clem account for the period from 1 January 2013 to 31 December 2023; and
(b) the bank statements of SHP for:
(i) an account ending in "6098" for the period from 29 June 2019 to 30 June 2025;
(ii) an account ending in "6008" for the period from 29 June 2019 to 27 August 2025; and
(iii) an account ending in "4245" for the period from 20 August 2019 to 26 August 2025.
84 The only documentary evidence from which the intention of the parties to the transaction may be inferred is the title of the account ("Loan - Clem"). However, in considering whether the available material is an appropriate basis on which to reach a decision, it is important to have regard to the ability of the parties to lead evidence on a particular matter.[147] As Lord Mansfield stated in Blatch v Archer, "all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted".[148] Where a fact is peculiarly within the knowledge of the defendant, comparatively slight evidence may be enough to prove the fact unless that evidence is explained away by the defendant.[149] This does not relieve the plaintiffs of adducing evidence on the issue, but the amount and quality of evidence required to discharge their onus of proof may be lessened when it may reasonably be supposed that the defendant is in a better position to know and prove the essential facts.[150]
85 The liquidators have issued demands for books and records to SHP's bookkeeper, who said they had no records; to its accountant, who also provided no records and stated that there were none in their possession; and to Christopher, who was a director and provided no documents.[151] The liquidators are at the disadvantage of having little knowledge of the circumstances surrounding the creation of the Clem account, the purpose of the account, or how it was maintained. Those facts lie squarely within the knowledge of Clem and/or Christopher, who, as the sole directors of the company at different points in time, were in a better position to give evidence about the purpose of the Clem account and the nature of the transactions recorded in them. However, Clem has not adduced any evidence to contradict the proposition that the advances were in the nature of loans. He has not produced evidence to support the defence he pleaded.
86 Thus, whilst the evidence produced by the plaintiffs is limited, I consider that it is nonetheless sufficient to ground an inference that a loan agreement existed between SHP and Clem. As the party with the greater means to produce evidence which contradicts this proposition, Clem carries an evidential burden to advance in evidence any particular matters with which (if relevant) the plaintiffs would have to deal in the discharge of their overall burden of proof.[152] The sale agreement was the only evidence which he put forth, and the plaintiffs have satisfactorily responded to this document.
87 The operation of the rule in Jones v Dunkel[153] also lends strength to the inference that the payments were loans. The rule, which has been described a "particular application" of the wider principle in Blatch v Archer,[154] provides that the unexplained failure by a party to call a witness may, in appropriate circumstances, support an inference that the uncalled evidence would not have assisted the party's case.[155] That is particularly so where it is the party himself who is the uncalled witness.[156] The failure to call a witness may also permit the Court to draw with greater confidence any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn.[157] The rule in Jones v Dunkel is engaged where: (a) the missing witness would be expected to be called by that party; (b) their evidence would elucidate a particular matter, which is a live matter at the trial; and (c) their absence is unexplained.[158] The principle applies both to failure to bring forward a witness and failure to tender a document or other evidence.[159]
88 It would have been natural and expected for Clem to call himself, Christopher and/or the accountant or bookkeeper as witnesses, to give direct evidence on the transactions recorded in the Clem account and provide the necessary context for that document. I infer from Clem's unexplained failure to do so that any evidence which those witnesses would have given would not have assisted his case. This permits me to draw with greater confidence the inference contended for by the plaintiffs - that the payments recorded in the account were loans.
89 As the plaintiffs acknowledged in their submissions, there is a division of authority as to what one can infer from the loan accounts of a company. Ultimately, the court has to consider all of the circumstances. The approach I have taken is consistent with my understanding of the authorities. The present case is analogous to VL Finance and Hylepin, where, in the absence of any persuasive evidence establishing the alternative position or any suggestion that the books and accounts might be unreliable, the Court had no difficulty inferring the existence of a loan from accounting entries alone.
90 In contrast, the cases of GJB, Pascoe, Michell and Shot One are distinguishable on the basis that, in those cases, there was contrary evidence which generated doubt about whether a loan existed. That made it more difficult for the Court to be satisfied that the party asserting the loan had discharged their burden of proof. Having reached my view of the alleged share sale agreement set out earlier, I do not consider that anything in the evidence before me throws substantial doubt on the existence of the loan. While there was some evidence to the effect that some of the company's liabilities to the Australian Taxation Office ("ATO") were underreported in the Xero records, there was no serious suggestion that the record of payments in the Clem account is a sham or otherwise unreliable or inaccurate. The reliability of the payments in the Clem account is corroborated by Crispino's evidence that, based on his analysis of the account and his reconciliation of entries from 23 September 2019 to 2 December 2022, he considered the record to be accurate. That evidence was not challenged.
91 It is also necessary to take into account the nature of the parties to the transaction and their relationship. As Lundberg J observed in Delta, the absence of a written agreement documenting a loan might tell against its existence in a larger, more sophisticated business. However, it is not unusual for a family company of a modest size and profile to have failed to formally document a loan arrangement with a director.[160] In Delta, the Court found that the plaintiff company had advanced a loan of $745,444.36 to the defendant director. Justice Lundberg's comments apply a fortiori in the present case, where the parties to the alleged loan are a small family company and a member of the family,[161] and where the sole director of the lender is the son of the borrower.[162] In these circumstances, it would not be unusual for the parties to have failed to formally document a loan between them, notwithstanding that the quantum of the loan was substantial in the context of the company's total assets and liabilities.[163]
92 Finally, inferring the existence of a loan agreement from the Xero records of SHP is not barred by the lack of express stipulations as to the terms of repayment. It is well-established that where a loan agreement does not specify a date for repayment, the loan is taken to be repayable on demand (ie immediately), without a formal demand for payment being a precondition to repayment.[164] I also share the view which Ferguson JA expressed in Termine - that the lack of reference to terms for repayment is inconsequential and the absence of provision for interest and security does not make the terms uncertain.[165] This is especially so in circumstances where:
(a) the accounts themselves do not on their face raise concerns about their authenticity or accuracy;
(b) the defendants have not raised any issues in their evidence which would cause the Court to doubt the records as presented; and
(c) the plaintiffs performed a reconciliation of the Clem account with the bank statements and Crispino gave evidence that he was satisfied that the account as recorded in Xero was accurate.
The absence of both other conflicting evidence and inherent flaws in the books distinguishes this case from others, where courts have found that there was no loan and/or s 1305 did not operate to create prima facie evidence of a loan.
Issue (c): What sum is Clem indebted to SHP for?
94 The plaintiffs seek an order that Clem is liable to pay SHP $496,587.38, together with interest at the penalty interest rate pursuant to s 58(1) of the Supreme Court Act 1986 (Vic). Subject to further hearing from the parties, I would be disposed to make such an order.
Issues (d) and (e): Are the payments made to Clem during the relation-back period void for being unreasonable director-related transactions?
95 I have already found that Clem is liable to pay SHP $496,587.38 under an inferred loan agreement. However, if I am wrong, for the reasons set out below I consider that $178,014.38 of those payments are void pursuant to s 588FE(6A) of the Act. Although SHP paid Clem $217,940.63 during the relation-back period, there was also a credit of $39,926.25 paid by or on behalf of Clem. This reduced the nett loan balance to $178,014.38.
96 If a company is being wound up, a transaction of the company is voidable pursuant to s 588FE(6A) of the Act if:
(a) it is an unreasonable director-related transaction of the company; and
(b) it was entered into, or an act was done for the purposes of giving effect to it:
(i) during the 4 years ending on the relation‑back day; or
(ii) after that day but on or before the day when the winding up began.
97 Pursuant to s 588FDA(1) of the Act, a transaction is an "unreasonable director-related transaction" if (among other things):
(a) the transaction is a payment made by the company;
(b) the payment is made to:
(i) a director of the company or a relative of a director of the company;[166] or
(ii) a person on behalf of, or for the benefit of, a person of the kind referred to in subparagraph (i) above; and
(c) it may be expected that a reasonable person in the company's circumstances would not have entered into the transaction, having regard to:
(i) the benefits (if any) to the company of entering into the transaction;
(ii) the detriment to the company of entering into the transaction;
(iii) the respective benefits to other parties to the transaction of entering into it; and
(iv) any other relevant matter.
98 Section 588FF(1)(a) provides that if a court is satisfied that a transaction of the company is voidable because of s 588FE, the court may make an order directing a person to pay to the company an amount equal to some or all of the money that the company has paid under the transaction. This power is qualified by s 588FF(4), which provides that if the transaction is a voidable transaction solely because it is an unreasonable director‑related transaction, the court may only make orders under 588FF(1) for the purpose of recovering for the benefit of the creditors of the company the difference between:
(a) the total value of the benefits provided by the company under the transaction; and
(b) the value (if any) that it may be expected that a reasonable person in the company's circumstances would have provided, having regard to the matters referred to in s 588FDA(1)(c).
99 The cases provide the following principles regarding s 588FDA:
(a) the fundamental purpose of s 588FDA is an anti-avoidance provision aimed at preventing errant directors from stripping benefits from companies to their own advantage;
(b) the "reasonable person test" is objective - it is what a reasonable person in the company's circumstances may be expected not to do;
(c) the enquiry should be undertaken in light of the circumstances that existed at the time the transaction was entered into. However, this does not mean that circumstances preceding the transaction and the foreseeable future consequences at the time of the transaction are irrelevant. The Court may take into account "any other relevant matter";
(d) the court must consider all relevant matters in each case, including the peculiar facts, circumstances and context. This includes the status of the company and what flows from that, its controllers, shareholders, business and other activities, and the facts and circumstances of and surrounding the transaction;
(e) a broad interpretation is to be given to the expression "for the benefit of", and the benefit may be a direct or indirect benefit;
(f) "detriment" to the company refers to commercial detriment, but need not be measurable in money terms;
(g) the assessment of benefits, detriment and any other relevant matter requires a "sensible commercial assessment" of the reality of the company's circumstances. It ought not be confined to analysing only the enforceable documented legal relationships;
(h) normal commercial practice is a relevant but not determinative consideration when assessing what a reasonable person in the company's circumstances would do. Other considerations may include the company's financial condition and whether the benefit received by the counterparty to the transaction is of such a magnitude that it is inexplicable by normal commercial considerations;
(i) where there is limited evidence of the nature or purpose of a transaction, but the surrounding circumstances show it to be a departure from normal commercial practice or give rise to inferences as to a lack of benefit to the company or detriment to the company, courts may infer that the transaction is unreasonable. In such circumstances, a defendant may be said to bear an evidentiary onus of raising some commercial explanation for the transaction; and
(j) it is not necessary for a liquidator to first prove any impropriety or breach of directors' duties.[167]
100 The plaintiffs submit that the Court should grant judgment in the sum of $217,940.63 plus interest under s 60 of the Supreme Court Act 1986 (Vic). The plaintiffs say that this sum is concurrent with the loan amount of $496,587.38 if the Court finds this loan between the company and Clem is established. Alternatively, they seek the sum of $217.940.63 cumulatively upon the sum of $248.484.02 plus interest if the Court finds only for the lesser loan.
101 The relation-back period is the period from 21 September 2019 to 7 December 2023. During that period, SHP paid Clem a nett amount of $178,014.38. Clem does not deny that these payments were made.[168]
102 The plaintiffs submit that the requirements in s 588FDA(1)(a) and (b) are satisfied as the payments were made by SHP to Clem, who is the father of Christopher, the director of SHP at the time.
103 As to s 588FDA(1)(c), the plaintiffs argue that a reasonable person in SHP's position would not have made the payments, having regard to the matters set out in subparagraphs (i)-(iv). The plaintiffs rely upon the following matters.
104 First, the defendants led no evidence of any benefit to SHP from these payments to Clem. Additionally, Crispino gave evidence that:
105 Secondly, SHP suffered a detriment by making the payments, in that it paid over a nett amount of $178,014.38. There was also a consequential detriment to SHP in that those funds were unavailable to meet claims of its creditors. In this regard, the plaintiffs rely on Crispino's evidence that, based on his analysis of the company's financial statements,[173] SHP:
106 Thirdly, as for the benefits conferred on other parties to the transaction, Clem was receiving payments from SHP in circumstances where SHP did not owe him any money. There was no evidence that Clem provided to SHP services or goods for which he was entitled to be paid.
107 Fourthly, as for other relevant matters, the plaintiffs called attention to s 260A(1) of the Act, which provides that
[a] company may financially assist a person to acquire shares (or units of shares) in the company or a holding company of the company only if:
(a) giving the assistance does not materially prejudice:
(i) the interests of the company or its shareholders; or
(ii) the company's ability to pay its creditors; or
(b) the assistance is approved by shareholders under section 260B (that section also requires advance notice to ASIC); or
(c) the assistance is exempted under section 260C.
108 The plaintiffs contend that if the purpose of the payments made to Clem was to assist Christopher to purchase shares in the company, that assistance materially prejudiced the interests of the company and its ability to pay its creditors. They also note that there is no evidence of any shareholder approval, or of the requirements in s 260B being met. Nor do any of the exemptions in s 260C apply.
109 It appears to be common ground between the parties that SHP made nett payments of $178,014.38 to Clem, the father of its director, during the relation-back period (ie between 21 September 2019, the relation-back day, and 7 December 2023). The requirements of s 588FDA(1)(a) and (b) are therefore made out.
110 The question that remains is whether a reasonable person in the company's circumstances would have entered into the transaction (s 588FDA(1)(c)).
111 There is no benefit to SHP apparent on the facts. Even if I were to accept Clem's assertion that the payments were made on behalf of Christopher to assist with his acquisition of the business, Clem has not shown how this confers any benefit on SHP. Similarly, there were no invoices, purchase documents, order forms or other similar documents which might suggest that SHP obtained goods, services or labour for the payments.
112 Conversely, the commercial detriment incurred by SHP as a consequence of making the payments is obvious. I accept Crispino's evidence that SHP was insolvent since at least 1 June 2019 and that it had significant creditors, including the ATO.[185] In those circumstances, the payments to Clem made it more difficult for the company to pay its creditors.
113 The benefit to Clem in receiving payments of $178,014.38, in circumstances where he has not provided a plausible justification for those payments, is equally self-evident.
114 I note, as a relevant "other matter", that even if the purpose of the payments was to assist Christopher in purchasing SHP's shares, such assistance would have been subject to the requirements of s 260A(1). Those requirements have not been met, because:
(a) the payments were made during a period when the company was facing serious difficulty in meeting its obligations to creditors. Thus, the giving of assistance would likely materially prejudice the interests of the company and its ability to repay creditors;
(b) there is no evidence of any shareholder approval under s 260B or any advance notice given to ASIC; and
(c) Clem has not argued or proved that any of the exemptions in s 260C apply, nor are the exemptions applicable on their face.
115 Thus, I consider that it may be expected that a reasonable person in SHP's position would not have made the payments to Clem during the relation-back period.
116 The nett payments to Clem totalling $178,014.38 are unreasonable director-related transactions (as defined in s 588FDA(1)) and are voidable by virtue of s 588FE(6A). For the purposes of s 588FF(4), my view is that the value that a reasonable person in the company's circumstances would have provided is nil.
117 Accordingly, subject to further hearing from the parties, I would be disposed to order that Clem pay SHP $178,014.38, plus interest at the penalty interest rate pursuant to s 60 of the Supreme Court Act 1986 (Vic). However, because this amount is sought concurrently with the higher loan sum of $496,587.38, Clem's liability remains the same as that set out in paragraph 94 above.
Issues (f) and (g): How should the payments made by SHP to Smash Corp be characterised?
118 The plaintiffs assert that SHP lent Smash Corp $227,800.84, such loan to be inferred from SHP's financial statements and Xero records in the absence of a written loan agreement.
119 In the defendants' Amended Defence, Smash Corp admitted that SHP paid it a nett amount of $227,800.84, but said that the payments were for the supply of goods, work and labour provided by Smash Corp to SHP.[186] In response to the plaintiffs' request for particulars of the alleged goods, work and labour, the defendants referred in a circular manner to the particulars which pertained to the Alleged Sale.
120 In Clem's written submissions provided to the Court, he asserted that the only payments made by SHP to Smash Corp were for "legitimate services rendered" and these were "commercial transactions completed in good faith", rather than loans. No further detail about the services was provided. The submissions also briefly mentioned a loan of $225,000 allegedly made by Clem to Christopher in 2019 to assist him in purchasing Smash Corp. That loan was not pleaded and appeared for the first time in the submissions.
121 The references to the Alleged Sale and $225,000 loan are internally inconsistent and puzzling. I will therefore proceed on the basis that Clem's primary assertion is that the payments to Smash Corp were made in exchange for the goods, services and labour it provided to SHP, as set out in the defendants' primary pleading.
122 Reading the evidence as a whole, it appears that the defendants admit the fact of the nett payments of $227,800.84 and their denial is linked to the character of the payments.
124 SHP's balance sheet for the year ended 30 June 2023 discloses a non-current asset of $227,800.84 described as "Loan - A1 Preferred Smash Repairs".[187] The Xero records of that loan account display a series of debit transactions from 14 November 2019 to 14 June 2023 totalling $686,912.39.[188] Crispino produced a schedule of the payments made to and from Smash Corp which records nett payments of $227,800.84 to Smash Corp.[189] The schedule was extracted from the Xero records of SHP.[190]
126 There is no evidence before me which shows that the payments to Smash Corp were consideration for goods or services rendered. There are no invoices, statements, accounts or other records verifying the goods or services alleged to have been provided by Smash Corp to SHP.
Issue (h): For what amount, if any, is Smash Corp indebted to SHP?
128 The plaintiffs seek an order that Smash Corp is liable to pay SHP $227,800.84, together with interest at the penalty interest rate of 10% per annum, pursuant to s 58(1) of the Supreme Court Act 1986 (Vic). The first demand for payment was made on 19 January 2024.[199] Subject to further hearing from the parties, I would be disposed to make such an order.
Issues (i) and (j): Are the payments made to Smash Corp during the relation-back period void for being unreasonable director-related transactions?
129 I have already found that Smash Corp is liable to pay SHP $227,800.84 under an inferred loan agreement. However, if I am wrong, then, for the reasons set out below, I consider that those payments are void by reason of s 588FE(6A) of the Act.
(a) the defendants admit in their pleadings that SHP made nett payments of $227,800.84 to Smash Corp during the relation-back period;[200]
(b) Smash Corp received the payments "for the benefit of" Clem, who was a relative of a director of SHP. Thus the payments are captured by s 588FDA(1)(b)(iv);
(c) a reasonable person in SHP's position would not have made the payments to Smash Corp, having regard to:
(i) the principles set out at paragraph 99 above;
(ii) Crispino's evidence to the effect that there was no evidence in the books and records of SHP that the payments reflected the value of work actually performed by Smash Corp for SHP (see paragraph [99 >
(iii) Crispino's evidence regarding the financial difficulties that SHP was experiencing at the time of the payments (see paragraph 105 above).
132 The plaintiffs also acknowledged that if they are successful in recovering $227,800.84 as unreasonable director-related transactions, that sum is concurrent with the amount of the loan, if found.[202]
133 The parties agreed that nett payments of $227,800.84 were made by SHP to Smash Corp during the relation-back period.
134 The first issue is whether the payments to Smash Corp can be regarded as payments that were made "on behalf of, or for the benefit of" Clem, as required by s 588FDA(1)(b)(iv).
135 In Cooper, the Full Federal Court said that the phrase "for the benefit of" in s 588FDA(1)(b)(iv) is to be widely construed.[203] What is required is that the transaction in question "legally or financially advantages" the director (or their close associate).[204] Thus, the concept of "benefit" in that subsection is wide enough to encompass the indirect benefit derived by person who is a shareholder of the transferee company.[205]
136 Clem was the sole shareholder and director of Smash Corp when the payments in question were made. Thus, the payments to Smash Corp would have benefitted Clem, at least indirectly. It is clear that the payments fall within the ambit of s 588FDA(1)(b)(iv).
137 The second issue is whether it may be expected that a reasonable person in SHP's circumstances would not have made the payments for the purposes of s 588FDA(1)(c). I find that a reasonable person would not have made the payments. I note in particular:
(a) Clem has not adduced any evidence to make good his assertion that the payments were for goods, services and labour which Smash Corp provided to SHP, such as invoices, purchase documents or order forms. I reject Clem's assertion and find that SHP did not receive any discernible benefit in exchange for its payments to Smash Corp;
(b) the payments to Smash Corp caused significant commercial detriment to SHP in circumstances where the company was insolvent since at least 1 June 2019 and heavily in debt; and
(c) Smash Corp obtained the benefit of significant cash payments amounting to $227,800.84 where no persuasive commercial explanation has been raised for those payments.
138 In my view, it would be expected that a reasonable person in SHP's circumstances would not have made the nett payments to Smash Corp totalling $227,800.84 during the relation-back period. Those payments are therefore unreasonable director-related transactions that are voidable under s 588FE(6A).
139 I would consequently order that Smash Corp pay SHP $227,800.84. However, because this amount is sought concurrently with the loan sum of $227,800.84, Smash Corp's liability remains the same as that set out in paragraph 128 above.
140 For the reasons set out, I consider that the plaintiffs:
(i) for debt in the amount of $496,587.38; or
(ii) alternatively, $178,014.38 by reason of the payments being unreasonable director-related transactions voidable under s 588FE(6A) of the Act; and
(iii) for debt in the amount of $227,800.84; or
(iv) alternatively, $227,800.84 by reason of the payments being unreasonable director-related transactions voidable under s 588FE(6A) of the Act.
141 I direct that the parties confer about these reasons for judgment with a view to agreeing upon the final orders to be made giving effect to the judgment including orders for costs. If the parties cannot agree, then they should file:
(a) any affidavit material on which they rely together with an outline of submissions by 4:00pm on 9 March 2026;
(b) any reply material and submissions by 4:00pm on 12 March 2026.
142 The submissions are limited to five A4 pages, and the reply submissions are limited to three A4 pages. Each set of submissions should have a minimum 12-point typeface, 1.5 spacing and 40mm margins on either side of the page. Unless I consider it otherwise necessary, I will decide the issue of costs and the form of final order on the papers.
Roberto Crispino in his capacity as liquidator of Sky High Panels Pty Ltd (in liq) (ACN 161 073 650)
Richard Albarran in his capacity as liquidator of Sky High Panels Pty Ltd (in liq) (ACN 161 073 650)
Sky High Panels Pty Ltd (in liq) (ACN 161 073 650)
Smash Corp Collision Repair Centre Pty Ltd (ACN 059 694 996)
[4] CB 376. According to Crispino, the account was designated as a loan account. Thereafter, when more funds were withdrawn and deposited, the account became a negative amount which meant that the company was owed money by the other party, namely Clem: T34.
[5] CB 412. The liability of $496,587.38 is also reflected in the balance sheet of SHP: CB 100.
[6] Amended Statement of Claim dated 14 April 2025 ("ASOC") at [6]; First and Third Defendants' Defence to the Amended Statement of Claim dated 5 May 2025 ("Amended Defence") at [6].
[8] CB 539 and CB 542 (ASIC search). The date of 17 May 2013 is derived from CB 539, where the document reference in the entry for Smash Corp's shareholding is "7E5221920", and CB 542, where the date of document 7E5221920 is 17 May 2013.
[9] CB 542 (ASIC search); CB 36 and 87-91 (Crispino Witness Outline at [4] and the exhibit thereto (ASIC doc 028660812)). Footnote 44 of the plaintiffs' written closing submissions states that the shares were transferred to Christopher on 23 December 2019. On the ASIC search, 23 December 2019 is the "Date Processed" (CB 542). However, ASIC doc 028660812 shows that the change in shareholding occurred within the company on 1 February 2019 (CB 36 and 87-91).
[11] CB 258; Notice to Admit at [19]; Notice of Dispute at [19].
[12] Eg CB 400-401 (before 2018), CB 401-406 (throughout 2018).
[16] Hylepin Pty Ltd v Doshay Pty Ltd [2020] FCA 1370; (2020) 148 ACSR 30 at [59] ("Hylepin"); Commissioner of Taxation v Radilo Enterprises Pty Ltd (1997) 72 FCR 300 at 313 ("Radilo").
[18] Hylepin (n 16) at [59]; Radilo (n 16) at 313; GJB Building Pty Ltd v AI&PB Property Pty Ltd [2023] VSC 782 at [1157] ("GJB").
[19] GJB (n 18) at [1155], citing Hylepin (n 16) at [55]-[59] and Grego v Copeland [2011] VSC 521.
[22] Adnunat Pty Ltd v ITW Construction Systems Australia Pty Ltd [2009] FCA 499 at [38] ("Adnunat"); GJB (n 18) at [1156]; Realestate.com.au Pty Ltd v Hardingham (2022) 277 CLR 115 at [72] ("Hardingham").
[26] [2017] HCA 2; (2017) 340 ALR 368 at [18]. See also Shot One Pty Ltd (in liq) v Day [2017] VSC 741 at [257], [282] ("Shot One"); GJB (n 18) at [1155].
[29] GJB (n 18) at [1159]; Tosich Construction Pty Ltd (in liq) v Tosich [1997] FCA 252; (1997) 23 ACSR 466 at 472 ("Tosich (FCA)"); Tosich Construction Pty Ltd (in liq) v Tosich [1997] FCA 979; (1997) 78 FCR 363 at 365.
[32] (2003) 54 ATR 221 ("VL Finance").
[50] [2018] VSC 648 ("Michell").
[59] Hylepin (n 16), upheld by the Full Court of the Federal Court in Hylepin Pty Ltd v Doshay Pty Ltd (2021) FCR 104.
[64] Ibid at [61]. The fact that the advances were properly recorded in Doshay's accounts, and not disguised or hidden, was also a factor in his Honour finding that they were not dishonest misappropriations of funds.
[73] [2024] WASC 423 ("Delta").
[82] Corporations Act 2001 (Cth) s 1306(1)(b) ("the Act").
[83] [2009] NSWSC 1229; (2009) 236 FLR 1 ("ASIC v Rich").
[85] [2007] FCAFC 125; (2007) 161 FCR 20 at [59] ("Whitton").
[87] [2008] VSCA 93; (2008) 20 VR 377 at [37] ("Livingspring").
[94] [2015] VSC 66 ("Termine").
[97] [2015] FCAFC 161 ("McAdam (FCAFC)").
[98] McAdam v Chylos Pty Ltd [2015] FCA 423 at [17] ("McAdam (FCA)"); ibid at [48].
[103] [2017] NSWSC 1872 at [18]-[22] ("Re Fixed Interest").
[109] [2019] VSCA 203 at [193] ("Hoh").
[113] Ibid at [277], [280]-[281].
[115] Ibid at [127]-[128] (citations omitted).
[116] [2025] FCA 848 ("South Seas").
[117] Ibid at [49] (citations omitted).
[143] Shot One (n 26) at [270], citing Yesilhat v Calokerinos [2017] NSWSC 666 at [791].
[147] Ho v Powell [2001] NSWCA 168; (2001) 51 NSWLR 572 at [14]-[15].
[148] [1774] EngR 2; (1774) 98 ER 969 at 970.
[149] Hampton Court Ltd v Crooks [1957] HCA 28; (1957) 97 CLR 367 at 371-2; Gerard Cassegrain & Co Pty Ltd v Cassegrain (2013) 87 NSWLR 284 at [26]; Director of Public Prosecutions v Brauer [1991] 2 Qd R 261 at 268 ("Brauer"); BCI Finances Pty Ltd (in liq) v Binetter (No 4) [2016] FCA 1351; (2016) 348 ALR 227 at [123]; Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corp (1985) 1 NSWLR 561 at 565 ("Apollo Shower Screens").
[153] [1959] HCA 8; (1959) 101 CLR 298 at 320-1, 308.
[154] ASIC v Rich (n 83) at [439]-[440]; Coshott v Prentice [2014] FCAFC 88; (2014) 221 FCR 450 at [81]; Quintis v Certain Underwriters at Lloyd's London Subscribing to Policy Number B0507N16FA15350 [2021] FCA 19; (2021) 385 ALR 639 at [257] ("Quintis").
[155] Jones v Dunkel (n 153) at 320-1, 308; Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 at [63] ("Kuhl"); ASIC v Rich (n 83) at [452]; Quintis (n 154) at [254]. See also JD Heydon, Cross on Evidence (LexisNexis, 14th ed, 2023) at [1215].
[157] ASIC v Rich (n 83) at [451], citing Manly Council v Byrne [2004] NSWCA 123 at [51].
[158] ASIC v Rich (n 83) at [449], citing Payne v Parker [1976] 1 NSWLR 191.
[159] ASIC v Rich (n 83) at [452], citing Jones v Dunkel (n 153) at 320 and Burke v LFOT Pty Ltd [2002] HCA 17; (2002) 209 CLR 282 at [134].
[164] GJB (n 18) at [1157]; VL Finance (n 32) at [39]-[58]; Hylepin (n 16) at [285]; Termine (n 94) at [13], citing Ogilvie v Adams [1981] VR 1041 at 1043; Delta (n 73) at [53]-[54]; Central City Pty Ltd v Montevento Holdings Pty Ltd [2011] WASCA 5; (2011) 29 ACLC 11-011 at [36]-[38].
[167] CEG Direct Securities Pty Ltd v Cooper (2025) 309 FCR 66 at [83]-[125] ("Cooper (FCAFC)"); Cooper v CEG Direct Securities Pty Ltd [2024] FCA 6 at [25]; Changela v Dracoma Pty Ltd [2025] NSWCA 186 at [23]-[31] and the cases cited therein.
[176] T46, T53; CB 342 (see entry on 1 June 2023), 558-560 (Proof of Debt).
[177] T46; CB 336, CB 313-318, CB 558-560 (Proof of Debt).
[186] Amended Defence at [8], [18].
[187] "A1 Preferred Smash Repairs" is the business name which Smash Corp operated under from 16 July 2022.
[190] Plaintiff's closing submissions dated 10 October 2025 at [40].
[199] This letter of demand is at CB 247.
[200] ASOC at [18]; Amended Defence at [18].
[202] Plaintiff's outline of opening submissions dated 2 October 2025 at [53].
Crispino
Kiparoglou [2026] VSC 80
(2005) 191 FLR 385
(1997) 72 FCR 300
(2022) 277 CLR 115
(2017) 340 ALR 368
(1997) 78 FCR 363
(2009) 236 FLR 1
(2007) 161 FCR 20
(2008) 20 VR 377
(2001) 51 NSWLR 572
(1957) 97 CLR 367
(2013) 87 NSWLR 284
(2016) 348 ALR 227
(1985) 1 NSWLR 561
(1959) 101 CLR 298
(2014) 221 FCR 450
(2021) 385 ALR 639
(2011) 243 CLR 361
(2002) 209 CLR 282
(2025) 309 FCR 66